Amerada Hess Corp. v. Director, Office of Worker's Compensation Programs

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 30, 2008

No. 07-60216 Charles R. Fulbruge III
Clerk

AMERADA HESS CORP; LIBERTY MUTUAL INSURANCE CO

Petitioners
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; EDDIE D DOVER

Respondents

Petition for Review of a Decision and Order of the
United States Benefits Review Board

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Amerada Hess Corp. and its insurer, Liberty Mutual Insurance Co.
(collectively, “Hess”), petition this court to reverse the decision and order of the
Benefits Review Board (“BRB”) that affirmed the decision of the Administrative
Law Judge (“ALJ”) to award disability benefits to Eddie Dover under the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”). For the reasons
that follow, we VACATE the ALJ’s award of medical expenses for Dover’s heart
condition and the ALJ’s finding that Dover is totally and permanently disabled,
and REMAND for a determination of whether Dover’s heart condition naturally
or unavoidably resulted from the treatment he received for his work-related back
 No. 07-60216

injury, and for reconsideration of whether Dover is totally and permanently
disabled. We DENY review of the attorney’s fee award.
I.
On July 22, 1997, Dover injured his back and groin while working for Hess
as a maritime employee. He saw Dr. Barnett the next day, and again a week
later. He attempted to continue working by completing tasks that involved only
light duty, but stopped working in May 1998. Hess paid Dover workers’
compensation benefits and medical payments under the LHWCA.
Dover was treated initially with pain medication. In November 1997,
Dover received a steroid injection from Dr. Baker. He received a series of three
lumbar epidural steroid injections in March 1998. In August 1998, Dover had
surgery for his back pain. Unfortunately, the surgery did not alleviate the pain.
He received another series of three steroid injections in September 1999. There
is no indication in the record that Dover received any more steroid injections
after September 1999, although Dr. Baker’s records refer to a “trigger point
injection in left paraspinal region” in notes dated December 28, 1999. Dover
testified that he also took steroids orally. By November 1999, Dover had gained
forty pounds. Dover also suffered sexual side effects from the steroids that led
him to seek another surgery performed by Dr. Ringer in early 2001.1 He was
prescribed medication for hypertension and depression. Dover reached
maximum medical improvement following the back surgery on March 13, 2001.
In March 2005, Hess reduced Dover’s disability payments and refused to pay for
various medical treatments.
At the hearing before the ALJ, Dover testified that after receiving steroid
injections, he gained a significant amount of weight, going from 160 pounds at

1
Dover does not contest the ALJ’s decision that Hess is not responsible for covering his
surgery for the sexual side effects because he did not notify Hess before undergoing this
surgery.

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the time of his injury in July 1997 to 200 pounds in November 1999, and about
240 pounds at the time of the hearing in September 2005. Dover testified that
Dr. Baker told him he had to take the steroid injections because, if he did not,
Hess would stop paying for his medical treatment. According to Dover, he
signed a paper informing him that steroids could cause kidney failure, heart
failure, liver failure, and sexual side effects. That paper, however, was not
introduced into evidence in the administrative proceedings. Dover also testified
that he began having heart problems after his back surgery and that he has had
four heart attacks, one of which occurred while he was in Dr. Ringer’s office.
There is no mention of a heart attack in any of the medical records of Dr. Ringer
that were submitted. Dover attributed the heart condition to his weight gain,
which he attributed to the steroid injections used to treat his back injury. Dover
testified that he saw Dr. Barnett because he was coughing continuously and had
something wrong with his lungs. According to Dover, Dr. Barnett found Dover’s
blood pressure to be elevated and found his heart racing at 120 beats per minute.
Dover said that when he told Dr. Barnett he was receiving steroid injections for
his back injury, Dr. Barnett said, “steroids will do that to you.” Dr. Barnett died
before the hearing, and Dover did not introduce any medical records from Dr.
Barnett. In his deposition, Dover testified, without record support, that the
steroids and Vioxx caused his hypertension and heart problems because he
didn’t have heart problems until he took “that stuff.” He testified that he has
trouble sleeping because his back hurts and that it sometimes takes three or four
days for him to fall asleep. There are no medical records in the administrative
record to indicate that Dr. Barnett ever treated Dover for heart problems.
Dover testified that he takes daily medication for back pain, hypertension,
and depression, and that he carries nitroglycerine pills for his heart and
monitors his blood pressure at home. Dover testified that Dr. Basi, an internist
who also treated Dover for his back pain, tried to refer him for heart treatment,

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but when Dover expressed reluctance due to insurance coverage, Dr. Basi had
Dover sign a form stating that if Dover “[fell] over dead outside, [his] wife won’t
sue” the doctor. Dover’s exhibits contain a report of Dr. Basi dated November
19, 2004. That report mentions Dover’s back pain, the need for an MRI and for
blood tests to check liver and kidney function secondary to taking pain
medications, and symptoms of depression, probably secondary to chronic back
pain, which will require medication. The report, however, contains no mention
of any heart problems or conditions and does not mention any need to refer
Dover for heart treatment.
Dover’s medical records indicate an increase in his blood pressure and the
prescription of medication for hypertension, but he did not introduce any medical
records or testimony from any of his doctors regarding his alleged heart
condition or four heart attacks. Dover testified that he has not sought other
employment since his injury.
Dover’s wife also testified about Dover’s weight gain and heart problems
following the steroid injections.
The ALJ found both Dover and his wife credible, and concluded that there
was nothing in the record to contradict their testimony regarding Dover’s heart
condition and treatment.
The ALJ also found that Dover presented substantial evidence to invoke
the presumption of causation in § 20(a) of the Act and that Hess presented no
evidence to rebut the presumption. Therefore, the ALJ determined that
treatment for the heart condition is a reasonable and necessary expense of his
compensable back injury.
The ALJ rejected Hess’s claim that Dover was only partially disabled and
that suitable alternative employment existed. The ALJ concluded that although
Dover might be able to work in some capacity, particularly part-time, Hess failed
to show that it was more likely than not that Dover could reasonably perform

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alternative work. The ALJ therefore concluded that Dover is permanently and
totally disabled. The ALJ denied Hess’s motion for reconsideration.
On appeal, the BRB affirmed the ALJ’s decision. The BRB held that
Dover’s testimony, supported by the testimony of his wife, that he experienced
heart problems post-injury is sufficient to establish the “harm” element of his
prima facie case. The BRB noted that Hess did not challenge the existence of
Dover’s heart condition prior to the issuance of the ALJ’s decision, and that
Hess, in its motion for reconsideration, did not challenge the credibility of
Dover’s testimony regarding the existence of a post-injury heart condition.
Instead, according to the BRB, Hess acknowledged the existence of the heart
condition, but sought reconsideration of the presumed causal link between it and
Dover’s work injury. The BRB stated that if Dover’s heart problems arose as a
consequence of the steroid injections he received as treatment for his work
injury, the heart problems were work-related. The BRB rejected Hess’s
contention that the ALJ erred in invoking the presumption based on the lack of
scientific proof linking Dover’s heart condition to his steroid treatment, holding
that such evidence is not necessary for invocation of the presumption. The BRB
also determined that Hess had not presented any evidence to rebut the
presumption. The BRB affirmed the ALJ’s finding that Hess did not establish
the availability of suitable alternate employment, and held that the ALJ
reasonably concluded that Dover was not capable of full-time employment. It
therefore affirmed the award of total disability benefits to Dover. Hess timely
petitioned for review. We have jurisdiction to review the BRB’s decision
pursuant to 33 U.S.C. § 921(c).
II.
Hess presents four issues for review. It argues (1) that the ALJ’s finding
that Dover’s heart condition is causally related to his work injury is not
supported by substantial evidence; (2) that the presumption of causation in the

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LHWCA does not apply to lay assertions attempting to link secondary and
tertiary physical problems (weight gain and a heart condition) to steroid
injections used to treat a back injury; (3) that the ALJ ‘s decision that Dover is
permanently and totally disabled is not supported by substantial evidence; and
(4) that the ALJ erred by awarding attorney’s fees. “This court . . . reviews
decisions by the BRB to determine whether it has adhered to its proper scope of
review -- i.e., whether the ALJ’s findings of fact are supported by substantial
evidence and are consistent with the law.” Gulf Best Elec., Inc. v. Methe, 396
F.3d 601, 603 (5th Cir. 2004).
III.
We address Hess’s first two issues together, dealing with whether the
presumption of causation was properly applied to Dover’s claim for the medical
expenses of his heart condition, and whether there is substantial evidence to
support the ALJ’s finding that Dover’s heart condition was causally connected
to his work-related back injury. Next, we consider whether there is substantial
evidence to support the ALJ’s determination that Dover is permanently and
totally disabled. Finally, we address the issue of attorney’s fees.
A.
Hess argues that the presumption of causation does not apply to
subsequent, non-work-related conditions that follow an initial work injury, and
that there is not substantial evidence to support the ALJ’s determination that
Dover’s heart condition was caused by the steroid injections that were used to
treat his back injury. Hess argued before the ALJ and the BRB, as well as in
this court, that the lay testimony of Dover and his wife was insufficient to
establish a causal link between Dover’s heart condition and the steroids he
received as treatment for his back injury. Instead, Hess contended, scientific or
medical evidence is required to establish that Dover’s heart problems were
caused by the steroids. Accordingly, Hess preserved for review its argument that

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the ALJ and the BRB erred by presuming a causal link based solely on the lay
testimony of Dover and his wife.
In determining whether there was error, we begin with the language of the
statute. The LHWCA provides that “compensation shall be payable under this
chapter in respect of disability . . . of an employee, but only if the disability . . .
results from an injury. . . .” 33 U.S.C. § 903(a). “Disability” is defined, in
relevant part, as an “incapacity because of injury.” 33 U.S.C. § 902(10). “Injury”
is defined as an “accidental injury or death arising out of and in the course of
employment, and such occupational disease or infection as arises naturally out
of such employment or as naturally or unavoidably results from such accidental
injury. . . .” 33 U.S.C. § 902(2). An employer must “furnish such medical,
surgical, and other attendance or treatment, nurse and hospital service,
medicine, crutches, and apparatus, for such period as the nature of the injury or
the process of recovery may require.” 33 U.S.C. § 907(a). The Supreme Court
has determined that the phrases “arising out of” and “in the course of” are
separate requirements to establish an injury: “the former refers to injury
causation; the latter refers to the time, place, and circumstances of the injury.”
See U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers’
Compensation Programs, 455 U.S. 608, 615 (1982). “Not only must the injury
have been caused by the employment, it also must have arisen during the
employment.” Id. To make a claim for compensation under the LHWCA, an
injured employee “must timely file a claim with the Deputy Commissioner.” Id.
at 613. The claimant must “timely give the Deputy Commissioner and his
employer notice of his injury,” and “‘[s]uch notice . . . shall contain . . . a
statement of the time, place, nature, and cause of the injury.’” Id. (quoting 33
U.S.C. § 912(b)).
The presumption of causation that the ALJ applied in this case is set out
in Section 20(a) of the LHWCA. It states that “[i]n any proceeding for the

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enforcement of a claim for compensation under this chapter it shall be presumed,
in the absence of substantial evidence to the contrary-- . . . [t]hat the claim
comes within the provisions of this chapter.” 33 U.S.C. § 920(a). To invoke the
presumption, a claimant must make a prima facie showing that (1) he suffered
a “harm” and (2) a condition of the workplace “could have caused, aggravated,
or accelerated” the harm. Conoco, Inc. v. Director, Office of Workers’
Compensation Programs, 194 F.3d 684, 687 (5th Cir. 1999). If the claimant
presents a prima facie case as to these two elements, then an ALJ may presume
that the work conditions caused the harm, unless the employer can rebut the
presumption “through facts -- not mere speculation -- that the harm was not
work-related.” Id. at 687-88. If the employer rebuts the presumption, it drops
out of the case and causation is determined by looking at the totality of the
evidence. See Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285,
288 (5th Cir. 2000).
The Supreme Court has stated that it “is clear [that] the [Section 20(a)]
presumption applies to the claim.” U. S. Industries, 455 U.S. at 612-13
(emphasis added). “A prima facie ‘claim for compensation,’ to which the statutory
presumption refers, must at least allege an injury that arose in the course of
employment as well as out of employment.” Id. at 615. Once an employee
establishes that his injury was work-related, he is entitled to all reasonable and
necessary medical expenses related to that injury. See 33 U.S.C. § 907.
It is undisputed that Dover’s claim for compensation under the LHWCA
(Claimant’s Exhibit 7) stated a prima facie case of compensability: his claim is
simply that he was injured on the job when he hurt his back and groin. Proof of
an injury and an accident at work or conditions at work that could have caused
the injury triggers the § 20(a) presumption that the injury is work-related and
thus compensable. Accordingly, it is undisputed that the § 20(a) presumption

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of causation applies to the back and groin injury described in the claim form that
Dover submitted.
Because the statutory presumption applies only to the claim, and because
the claim in this case does not reference a work-related heart injury, the ALJ
and the BRB erred in applying it to Dover’s alleged heart condition. See U.S.
Industries, 455 U.S. at 613 (“the presumption by its terms cannot apply to a
claim that has never been made”). Instead, the medical expenses of Dover’s
heart condition are compensable under the LHWCA only if Dover’s heart
condition “naturally or unavoidably” resulted from the treatment for his work-
related injury. See 33 U.S.C. § 902(2).
The ALJ cited the correct standard: that an employer is liable for all
medical expenses which are the natural and unavoidable result of a claimant’s
work injury. However, the ALJ did not find that Dover’s heart condition was the
natural and unavoidable result of his back injury at work. Instead, the ALJ
credited Dover’s and his wife’s testimony that he suffered from a heart condition
and that the heart condition developed after his work injury and steroid
injections, and the ALJ then immediately invoked the § 20(a) presumption to
link this heart condition with his work conditions simply because the steroid
injections could have caused Dover’s heart condition. As a result, the ALJ’s
decision is not in accordance with the applicable law. The question whether
Dover’s heart condition “naturally or unavoidably” resulted from weight gain
attributable to the steroid injections he received as treatment for his back injury
is for the ALJ to decide on remand. It appears to us that such a finding would
benefit from, if not require, support of medical experts.
Indeed, the ALJ stated that a claimant establishes a prima facie case for
compensable medical treatment where a qualified physician indicates that such
treatment is necessary for a work-related condition. Yet, no qualified physician
testified to that effect. Instead, the ALJ relied on Dover’s lay testimony that one

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doctor told him “steroids will do that to you” and his testimony that another
doctor told him that he might “drop dead.” Neither of those doctors testified at
the hearing or otherwise offered support for such advice or opinion.
The ALJ found nothing in the record to contradict the testimony of Dover
and his wife regarding the cause of Dover’s heart condition. The record,
however, contains evidence that raises questions, certainly with respect to
causation. In Dover’s pre-hearing report, he listed Dr. Barnett as a witness.
The dates of treatment are specified as July 23, 1997 (the day after Dover’s on-
the-job injury) and July 30, 1997. According to Dover’s pre-hearing report, Dr.
Barnett “originally treated claimant for urinary tract infection and cardiac
problems; returned one week later for same problem and doctor admitted there
was back injury.”2 A similar statement appears in Dover’s answers to
interrogatories. In these documents, Dover appears to admit that he saw Dr.
Barnett for “cardiac problems” on July 23, 1997, the day after his back injury,
and months before he received any steroid injections for the back injury.
Contrary to the ALJ’s conclusion, these statements in Dover’s pleadings seem to
contradict the testimony of Dover and his wife that his heart problems did not
begin until after he received steroid injections for his back injury.
Furthermore, the BRB’s decision to affirm the ALJ’s ruling reflects its
view that to invoke the presumption, Dover had to make a prima facie case by
showing (1) a harm (i.e., the mere existence of a heart condition) and (2)
conditions of the workplace that could have caused the harm (i.e., that the
steroid injections for the back injury simply could have caused the heart
condition). Although this mode of analysis is proper for Dover’s back injury
because it arose “out of and in the course of” his employment, it is improper for

2
Included in Hess’s exhibits is a July 23, 1997 prescription for an antibiotic used to
treat urinary tract infections. This tends to corroborate Dover’s statement that he saw Dr.
Barnett for a urinary tract infection and cardiac problems on July 23, 1997, the day after his
back injury.

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a secondary injury because it skips over the statutory requirement that a
secondary injury “naturally or unavoidably” result from the first injury. On
remand, the ALJ must determine whether Dover’s heart condition “naturally or
unavoidably” resulted from his back injury.
In sum, we hold that the statute does not support a presumption that any
medical condition that an injured claimant suffers after a work-related injury is
caused by the work-related injury. Furthermore, not all “secondary” injuries are
covered under the LHWCA simply because the claimant demonstrates a
subsequent harm that could have stemmed from the covered injury. Instead, to
receive benefits under the LHWCA for a subsequent injury, the claimant must
present substantial evidence that the secondary condition “naturally or
unavoidably” resulted from the first covered injury, as is required by the

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statute.3 As we have indicated, the ALJ should consider whether such a finding

3
Although its decisions are not consistent, the BRB has applied this method of
analyzing claims for subsequent injuries. See Bailey v. Bethlehem Steel Corp., 20 BRBS 14,
1987 WL 107384, at *2 (1987) (“When an employee sustains an injury at work which is
followed by the occurrence of a subsequent injury or aggravation outside work, employer is
liable for the entire disability and for medical expenses due to both injuries if the subsequent
injury i[s] the natural or unavoidable result of the original work injury.”); see also Ortiz v.
Intermarine USA, 2002 WL 31039513, at *23 (2002) (ALJ held that “claimant must establish
that medical expenses are related to the compensable injury and are reasonable and
necessary,” and that employer was “liable for all medical expenses which are the natural and
unavoidable result of the work injury, and not due to an intervening cause.”)

Our court has likewise held that where there is a subsequent non-work-related event
following an initial work injury, the relevant inquiry is whether the second injury resulted
naturally or unavoidably from the work injury. See Mississippi Coast Marine, Inc. v. Bosarge,
637 F.2d 994, 1000 (5th Cir. 1981) (“A subsequent injury is compensable if it is the direct and
natural result of a compensable primary injury, as long as the subsequent progression of the
condition is not shown to have been worsened by an independent cause.”); Atlantic Marine, Inc.
v. Bruce, 661 F.2d 898, 901 (5th Cir. 1981) (holding that substantial evidence supported the
ALJ’s finding that stress and anxiety over back pain from work-related injury caused
claimant’s heart attack, and citing Bosarge in support of holding that claimant’s
arteriosclerosis was not a supervening cause of his heart attack); Bludworth Shipyard, Inc. v.
Lira, 700 F.2d 1046, 1051 (5th Cir. 1983) (quoting 1 A. LARSON, THE LAW OF WORKMEN’S
COMPENSATION § 1300 (1980)) (“When the primary injury is shown to have arisen out of and
in the course of employment, every natural consequence that flows from the injury likewise
arises out of the employment, unless it is the result of an independent intervening cause
attributable to claimant’s own intentional conduct.”). Other courts have similarly construed
the language of the statute. See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 458
(9th Cir. 1954) (reversing and remanding with instructions to determine “whether the second
injury was or was not the natural or the unavoidable result of the first injury”).

Crescent Towing & Salvage Co. v. Collins, 228 F. App’x 447 (5th Cir. 2007)
(unpublished), is not necessarily inconsistent. In that case, the claimant suffered a back injury
at work and claimed that a later episode of atrial fibrillation was triggered by an epidural
steroid injection he received as treatment for the back injury. Our court stated:

The fact that Collins suffered an injury is undisputed, and
Collins’s board-certified cardiologist stated that it is much more
likely than not that the claimant’s initial episode of atrial
fibrillation was triggered by the epidural injection. His opinion
qualifies as substantial evidence to support the ALJ’s finding that
the Section 20(a) presumption was triggered.

Id. at 449. The cardiologist’s testimony was substantial evidence that the episode of atrial
fibrillation “naturally or unavoidably” resulted from the claimant’s treatment for his work-
related back injury. To the extent that Crescent Towing could be interpreted as approving
application of the statutory presumption to the episode of atrial fibrillation, it is inconsistent

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requires expert testimony.
B.
We now turn to consider the ALJ’s determination that Dover is totally and
permanently disabled. In the light of our remand for a determination whether
Dover’s heart condition naturally or unavoidably resulted from the medication
he received for his on-the-job back injury, and because we cannot say
conclusively that the ALJ’s finding that Dover had a compensable heart
condition did not affect the ALJ’s determination that Dover is totally and
permanently disabled, we VACATE the finding of total and permanent disability
and REMAND for further consideration and such further proceedings as the ALJ
determines are necessary.
C.
We now turn to consider Hess’s final argument, which is that there is no
statutory basis for the ALJ’s award of attorney’s fees, because Hess paid benefits
and followed all of the OWCP’s recommendations. Dover contends that Hess
waived this issue when it failed to appeal the fee award to the BRB.
The ALJ’s Decision and Order allowed Dover’s attorney 30 days within
which to file a fee application. Dover’s counsel filed a fee petition seeking
$19,094.65. On May 17, 2006, Hess’s counsel advised the court, by letter, that
the parties had agreed to settle the fee issue for $16,282.15.4 Based on the
parties’ agreement, the ALJ ordered Hess to pay the agreed amount to Dover’s
attorney. Hess did not appeal the ALJ’s fee award to the BRB. Accordingly,
Hess has waived any issue with respect to the award of attorney’s fees. See
Ingalls Shipbuilding, Inc. v. Dir., OWCP, 976 F.2d 934, 938 (5th Cir. 1992).
III.

with our prior precedent, and we therefore must reject it.
4
In the same letter, Hess’s counsel asked the BRB to issue an order awarding Dover’s
counsel $6,082.31 for his work before the BRB.

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For the foregoing reasons, we VACATE the ALJ’s award of medical
expenses for Dover’s heart condition and the ALJ’s finding that Dover is totally
and permanently disabled, and REMAND for a determination of whether
Dover’s heart condition naturally or unavoidably resulted from the treatment he
received for his work-related back injury, and for reconsideration of whether
Dover is totally and permanently disabled. We DENY review of the attorney’s
fee award.
VACATED in part and REMANDED; REVIEW DENIED in part.

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REAVLEY, Circuit Judge, concurring:
I concur in the judgment of the majority but disagree with the conclusion
that the presumption created by § 20(a) of the Longshore and Harbor Workers
Compensation Act (LHWCA) is inapplicable to Dover’s alleged heart condition
because Dover’s claim was limited to a back injury and the claim did not
reference a work-related heart injury. I would apply the presumption as long as
Dover presented sufficient evidence to establish a prima facie case, but because
Dover did not present such a case on the current record I concur.
The § 20(a) presumption provides that “[i]n any proceeding for the
enforcement of a claim for compensation under this chapter it shall be presumed,
in the absence of substantial evidence to the contrary– . . . [t]hat the claim comes
within the provisions of this chapter.” 33 U.S.C. § 920(a). “A prima facie ‘claim
for compensation’ to which the statutory presumption refers, must at least allege
an injury that arose in the course of employment as well as out of employment.”
U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615–16, 102 S.
Ct. 1312, 1318 (1982).
Dover claimed that he suffered a work-related back injury, and he testified
that the steroid treatment for his back resulted in his heart condition. We have
recognized that “‘“[w]hen the primary injury is shown to have arisen out of and
in the course of employment, every natural consequence that flows from the
injury likewise arises out of the employment, unless it is the result of an
independent intervening cause attributable to claimant’s own intentional
conduct.’” Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th Cir. 1983)
(quoting 1 A. Larson, THE LAW OF WORKMEN’S COMPENSATION § 1300 (1980)).
Because Dover’s claimed back injury indisputably arose out of his employment,
any injury resulting from treatment for that injury should also be presumed to
have arisen out of the employment and the primary injury. See Mattera v. M/V
MARY ANTOINETTE, 20 BRBS 43 (1987) (back injury sustained during

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vocational testing following a compensable arm injury was covered under the
LHWCA because the employee “would not have been undergoing vocational
rehabilitation testing if he had not injured his arm during the course of his
employment, and thus, we hold that the alleged back injury also arose out of and
in the course of his employment”); Weber v. Seattle Crescent Container Corp., 19
BRBS 146 (1986) (a neck injury sustained during a medical examination for a
work-related hearing loss “necessarily arises out of and in the course of
employment”).
The problem in the instant case is the proof that Dover’s secondary injury
(the heart condition) resulted from the treatment for his primary, work-related
injury (the back injury). Dover was asked at the hearing before the ALJ if he
had any heart problems prior to the accident on July 22, 1997. He responded,
“No.” He was then asked when he started having heart problems. Dover replied
as follows:
It was after my surgery. Now I went to Dr. Barnett there because
I had something wrong with my lungs there, a continuous coughing.
I went in there to get something, some medication for it. And he
checked my blood pressure and it’s way up there and my heart’s a
racing real fast, a hundred; I think about a 120 beats a minute or
something like that. He told me it wasn’t – it wasn’t my blood
pressure. He said, “That’s your heart doing that.” And I told him
all the steroid injections I had and he said, “Steroids will do that to
you.”

In finding that Dover’s heart condition was work-related, the ALJ relied in part
on Dover’s testimony about Dr. Barnett’s confirmation that the steroids could
have caused his heart problems. The ALJ found that nothing in the record
contradicted Dover’s testimony. But the only record evidence concerning Dr.
Barnett shows that Dover saw Dr. Barnett on July 23 and July 30, 1997, before
Dover received steroid injections. On this record, Dover could not have told Dr.
Barnett about the steroid injections and Dr. Barnett could not have stated that

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steroids caused Dover’s heart condition. In addition, as the majority opinion
notes, Dover’s answers to interrogatories stated that Dr. Barnett treated him for
a urinary tract infection and cardiac problems, suggesting that any heart
condition may have predated the back injury.
The ALJ, as the fact finder, may resolve conflicts in the evidence. Atlantic
Marine, Inc. v. Bruce, 661 F.2d 898, 900 (5th Cir. 1981). Although the ALJ here
found Dover to be a credible witness, there is no indication that he took conflicts
in the evidence into account. Based on the current record, Dover failed to show
a sufficient nexus between the steroid treatment for his back injury and his
secondary heart condition to establish a prima facie case. Therefore, I concur in
the judgment to vacate the order of the BRB affirming the ALJ.

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