Flood v. NAF Billeting Branch

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALICE FLOOD,
Petitioner,

v.

NAF BILLETING BRANCH; DIRECTOR,
No. 96-2575
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-2640)

Submitted: January 6, 1998

Decided: January 27, 1998

Before HALL, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

John H. Klein, Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Patrick A. Roberson, SMITH, SOM-
ERVILLE & CASE, L.L.C., Baltimore, Maryland, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Alice Flood petitions this court for review of a decision of the
Department of Labor's Benefits Review Board ("BRB"). The BRB
summarily affirmed the decision of an administrative law judge
("ALJ"), who denied Flood's claim under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C.A. §§ 901-950 (West 1986 &
Supp. 1997) ("the Act") for temporary total disability benefits.1 The
ALJ found that Flood had failed to prove causation between her on-
the-job injury and her subsequent disabling condition. Because sub-
stantial evidence supports the findings of the ALJ, we affirm.

A claimant seeking disability benefits under the Act must establish
her inability to return to her former employment. 2 Flood worked as a
quality control inspector for three years. She sustained injuries to her
neck, right shoulder, and right elbow on October 9, 1992, when, while
in the course of her employment, stacked boxes of mattress pads fell
on her. Flood gave her employer timely notice of these injuries and
sought medical attention within a week of the accident.3 She immedi-
_________________________________________________________________
1 The BRB did not address the merits of the appeal. On September 12,
1996, the BRB sent the parties a notice stating that pursuant to the provi-
sion of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the BRB relating to claims under the Act were deemed to have
been affirmed if the case had been pending before the BRB for one year
by September 12, 1996. Because Flood's appeal met these criteria, the
BRB informed the parties that the ALJ's decision had been effectively
affirmed by the BRB on September 12, 1996, for purposes of their rights
to obtain review in this court.
2 See See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380
(4th Cir. 1994).
3 Flood reported only that she was suffering from neck and shoulder
pain. Cervical X-rays showed an apparently normal alignment, cervical
spondylosis with degenerative disc disease.

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ately returned to work, performing light-duty tasks from October
1992 to December 1992. Flood thereafter resumed her full and regular
job duties and continued to work in that capacity until March 1993.

In March 1993, Flood visited Dr. McAdam, an orthopedic surgeon
and Flood's primary treating physician, and informed him of severe
pain she was experiencing in her back and right leg, reportedly related
to a "coughing episode."4 On the medical questionnaire, Flood stated
that her pain was not the result of a work-related accident. Because
of this severe pain, Flood did not return to work. Dr. McAdam subse-
quently performed two lower-back operations to relieve Flood's com-
plaints of pain.

The Department of Labor conducted a formal hearing addressing
whether Flood's disability was caused by her on-the-job injury and
whether Flood was entitled to temporary total disability compensa-
tion. In his Decision and Order, the ALJ determined that although
Flood established a prima facie case that "an accident occurred which
could have caused the harm or pain," the medical evidence relied
upon by the employer successfully rebutted the presumption of causa-
tion, thereby directing the ALJ to review the record as whole. Upon
such review, the ALJ concluded that Flood failed to meet her burden
of proof on the subject of causation and denied her claim for benefits.

This petition raises the issue of whether the ALJ properly found
that the employer successfully rebutted the presumption of causation.
Section 21 of the Act, in pertinent part, sets forth the applicable stan-
dard of review:

The Board shall be authorized to hear and determine appeals
raising a substantial question of law or fact . . . . The find-
ings of fact in the decision under review by the Board shall
be conclusive if supported by substantial evidence in the
record considered as a whole.
_________________________________________________________________
4 Although Flood testified that she was constantly in pain following the
October 1992 accident and that she informed two of her supervisors of
her pain, she did not seek any additional medical attention for the pain
prior to March of 1993.

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33 U.S.C.A. § 921(b)(3).

This court will reverse the BRB only where there is an error of law
or when a finding of fact is not supported by substantial evidence.5
The United States Supreme Court has defined "substantial evidence"
as "`such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.'"6

If a claimant establishes that she suffered a harm, and that employ-
ment conditions existed, or an accident occurred, which could have
caused, aggravated or accelerated the resulting condition, then the
claimant is entitled to a rebuttable presumption that the disabling con-
dition is causally related to her employment.7 Once a claimant has
established the presumption, the burden shifts to the employer to
rebut the presumption with substantial evidence that severs the causal
connection.8 The unequivocal testimony of a physician that no rela-
tionship exists between a claimant's disabling condition and the
claimant's employment is sufficient rebuttable evidence.9 Finally, if
the presumption is successfully rebutted by the employer, then the
ALJ must weigh all of the evidence and resolve the causation issue
on the basis of the record as a whole.10

If a non-work-related injury befalls a claimant, the employer may
then rebut the section 20(a) presumption by introducing substantial
_________________________________________________________________
5 See John T. Clark & Son, Inc. v. Benefits Review Bd., 621 F.2d 93,
95 n.3 (4th Cir. 1980) (quoting O'Leary v. Brown-Pacific-Maxon, 340
U.S. 504, 508 (1951)).
6 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
7 See 33 U.S.C.A. § 920(a); Brown v. ITT Continental Baking Co. &
Ins., 921 F.2d 289, 295 (D.C. Cir. 1990); Merrill v. Todd Pacific Ship-
yards Corp., 25 BRBS 140, 144 (MB) (Nov. 26, 1991) (citing
Gencarelle v. General Dynamics Corp., 22 BRBS 170, aff'd 892 F.2d
173 (2d Cir. 1989)).
8 See James v. Pate Stevedoring Co., 22 BRBS 271, 273 (MB) (May
31, 1989).
9 See Kier v. Bethlehem Steel Corp., 16 BRBS 128, 129-30 (MB) (Feb.
27, 1984).
10 See Brown, 921 F.2d at 295.

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evidence that the claimant's disability was not caused by an earlier
work-related injury.11 The employer will be liable for the entire sec-
ond injury only if the claimant can prove that the second injury was
the natural or unavoidable result of the first work-related injury.12
However, if the second injury has an intervening cause, the employer
will only be liable for that portion of the disability that can be directly
attributed to the first work-related injury.13

It is undisputed that Flood sustained a work-related injury on Octo-
ber 9, 1992. Thus, Flood is entitled to the section 20(a) rebuttable pre-
sumption that her disability was caused by her work-related injury. In
rebuttal, Flood's employer relied on the medical opinions of Drs.
McAdam and Mason.14 Neither physician was able to state with cer-
tainty that there was a definite relationship between Flood's on-the-
job injury and her subsequent disabling condition. In addition, the spi-
nal X-ray taken shortly after the accident was negative. Moreover,
Flood immediately returned to work and did not complain of any back
pain until nearly one month after the accident. Finally, Flood did not
seek medical attention for her pain until nearly five months after the
accident and did not inform her physician of the accident for an addi-
tional two months.15

We find that it was completely reasonable and clearly within the
ALJ's discretion to conclude that Flood had failed to meet her burden
of persuasion. The ALJ's determination that Flood's pain in her back
and leg, corrective surgeries, and subsequent disability were unrelated
to her October 9, 1992, work-related injury is rational and supported
by the record as a whole. Accordingly, the BRB's decision to affirm
the ALJ is hereby affirmed. We dispense with oral argument because
_________________________________________________________________
11 See Merrill, 25 BRBS at 144.
12 Id.
13 See Bailey v. Bethlehem Steel Corp., 20 BRBS 14, 16 (June 17,
1987).
14 Dr. Mason, also an orthopedic specialist, reviewed Dr. McAdam's
notes and conducted an independent medical evaluation of Flood.
15 Flood informed Dr. McAdam of the on-the-job injury nearly one
month after he had already performed the first of two operations on her
lower back.

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the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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