Giroir v. Conrad Indust Inc

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 01-60448 Summary Calendar _______________

ROBBIE GIROIR,

Petitioner,

VERSUS

CONRAD INDUSTRIES, INCORPORATED; ZURICH INSURANCE COMPANY; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

_________________________

Petition for Review of an Order of the Benefits Review Board m 00-0761 _________________________ March 5, 2002

Before JONES, SMITH, and denied Robbie Giroir’s claim for benefits under EMILIO M. GARZA, Circuit Judges. the Longshore and Harbor Worker’s Com- pensation Act, 33 U.S.C. § 901 et seq. JERRY E. SMITH, Circuit Judge:* (“LHWCA”), finding, after a formal hearing, that Giroir had failed to prove that he had suf- The Administrative Law Judge (“ALJ”) fered a harm caused, aggravated, or accelerat- ed by employment conditions. The Benefits Review Board (“Board”) affirmed. In his pe- * Pursuant to 5TH CIR. R. 47.5, the court has tition for review, Giroir argues only that sub- determined that this opinion should not be pub- stantial evidence does not support the ALJ’s lished and is not precedent except under the limited decision. Finding no reversible error, we deny circumstances set forth in 5TH CIR. R. 47.5.4.

the petition for review. broken, and no other cranes were servicing the dry dock. I. Giroir worked in a shipyard owned and While climbing the stairs on the stern of the operated by Conrad Industries, Inc. (“Con- boat and carrying the angle iron on his back, rad”), first as a subcontractor with C-Fab Giroir injured his back. He then carried the Industries and then as a shipfitter and em- angle iron up a passage inside the boat near the ployee of Conrad’s. As a shipfitter, Giroir bow, where he lowered it through a manhole repaired iron on boats, cutting out old rusted in the passageway and down into the number iron and putting in new iron. He routinely 2 starboard ballast tank. He took this lengthy cropped out the iron to be replaced, found a route because the manhole was the only means piece to replace it, cut it to size, and tacked it of access to the number 2 starboard ballast into place. tank.

The witnesses agreed that shipfitters com- Conrad pointed to conflicting evidence on monly carried small pieces of iron for distances all of these points during the hearing. Fon- of up to 300 feet but disagreed over the aver- tenot denied that he ever would have instruct- age weight of these iron pieces. Giroir testi- ed a fitter to cut the iron on board the ship fied that he typically lifted fifty to sixty rather than on land. Land, one of Giroir’s pounds; Ricky Land, another fitter, testified witnesses, testified that Giroir cut the angle that shipfitters often lifted as much as their iron on the shore rather than waiting to cut it own weight; and Herman Bailey, a shipyard on the ship. Shipyard records proved that the superintendent, testified that in over nineteen manhole was not the only access to the ballast years, he could not recall a fitter lifting and tank; the workers had opened a four-by-five- carrying an object that weighed more than foot hole in the lower hull to permit access by thirty-five pounds. personnel and equipment. Finally, shipyard managers testified that a crane and several In the early morning of November 28, cherry pickers operated for nine-and-one-half 1997, Giroir participated in a barroom fight hours that day and remained available at all that led to his arrest and conviction for simple times. battery. Bradley Bergeron, an eyewitness to the fight, testified that the fight degenerated The medical experts disagreed about the until Giroir and his opponent were wrestling cause of Giroir’s injury. Stuart Phillips, on the floor. Giroir’s orthopedic surgeon, testified that the industrial accident caused Giroir’s back injury, Giroir testified as follows: On December 3, but he admitted that his conclusion derived 1997, David Fontenot, his foreman, ordered primarily from Giroir’s self-reported medical him to carry a twelve-foot piece of angle iron history. George Murphy, another orthopedic 150 yards to a stairway at the stern of a vessel surgeon, testified that a physician could not in dry dock. Fontenot refused to allow him to determine whether the fight or the alleged cut the angle iron on land to the desired seven- lifting incident caused the injury. The other foot length. Giroir had to carry the iron angle two doctors, specialists in family medicine and manually because the shore side crane was neurosurgery, treated Giroir in December

1997; neither of them could determine whether so we deny the petition. the fight or lifting the angle iron had caused the injury. A. Under the LHWCA, the petitioner must al- II. lege that working conditions or an accident in The ALJ found in favor of Conrad. He the course of employment caused an injury. initially found that Giroir had proven a prima U.S. Industries/Federal Sheet Metal, Inc. v. facie case and that LHWCA’s presumption in Dir., OWCP, 455 U.S. 608, 615-16 (1982); favor of recovery applied but that Conrad had Port Cooper/T. Smith Stevedoring Co., Inc. v. offered countervailing evidence that cast sig- Hunter, 227 F.3d 285, 287 (5th Cir. 2000). If nificant doubt on the existence of a work- the petitioner makes this prima facie showing, related injury. Conrad’s rebuttal evidence per- a rebuttable presumption arises that the mitted the ALJ to evaluate the whole record. workplace accident caused or aggravated the The ALJ found Conrad’s witnesses more cred- employee’s injury. Id.1 The employer must ible than Giroir’s and rejected Phillips’s caus- counter this presumption with “substantial evi- ation hypothesis. dence” that the employment did not cause or aggravate the injury. Conoco, Inc. v. Dir., The ALJ granted Giroir’s motion for OWCP, 194 F.3d 684, 690 (5th Cir. 1999). If reconsideration. Giroir objected to the ALJ’s the employer rebuts the presumption with the initial, inaccurate statement that witnesses had kind of evidence a reasonable mind would ac- observed Giroir limping after the bar fight but cept as adequate to support the conclusion, the before the alleged industrial accident. The presumption falls away, and the ALJ will de- ALJ corrected this inaccuracy but remained termine the existence of an injury, and its re- convinced that Giroir had failed to prove a lation to employment, on the basis of the work-related accident. whole record. Id.; Lennon v. Waterfront Transp., 20 F.3d 658, 662 (5th Cir. 1994). Giroir appealed to the Board, which upheld the ALJ’s findings of fact and conclusions of B. law as rational, supported by substantial evi- Giroir challenges only the ALJ’s factual dence, and in accordance with the law. The finding that Giroir’s employment did not cause Board found that, despite the ALJ’s initial or aggravate his back injury. We consider the misstatement, substantial evidence supported record as a whole to determine whether factual his decision and order. findings are supported by substantial evidence. James J. Flanagan Stevedores, Inc. v. III. Gallagher, 219 F.3d 426, 429 (5th Cir. 2000). Giroir’s appeal boils down to a single ar- We have described the substantial evidence gument: The ALJ’s initial conclusion that wit- nesses had observed Giroir’s injury after the fight but before the alleged accident so taints 1 The LHWCA creates the presumption: “In the decision that we must grant the petition for any proceeding for the enforcement of a claim for review. Like the ALJ and the Board before us, compensation under this chapter it shall be we conclude, however, that independent presumed, in the absence of substantial evidence to record evidence supports the ALJ’s decision, the contrary (a) [t]hat the claim comes within the provisions of this chapter.” 33 U.S.C. § 920(a).

standard as “deferential,” Conoco, Inc., 194 opponent landed and continued wrestling on F.3d at 690, and “somewhat narrow,” the barroom floor. Fontenot testified that Avondale Shipyards, Inc. v. Kennel, 914 F.2d Giroir arrived at work after the fight with a 88, 90 (5th Cir. 1990). Substantial evidence is black eye, busted lip, and requested time off more than a scintilla and evidence that a because he was hurting. (2) Medical experts reasonable person would consider persuasive. could not rule out the fight, rather than an Louis Dreyfus Corp. v. Dir., OWCP, 125 F.3d industrial accident, as the cause of the back 884, 886-87 (5th Cir. 1997). We must not injury. The ALJ found Murphy’s testimony reweigh the evidence or substitute our that the fight could have caused the back judgment for the ALJ’s, but we do have a duty injury more persuasive than Phillips’s opinion independently to review the record. Id. that the fight did not cause the injury. Specifically, the court pointed out that Phillips The substantial evidence standard requires had relied heavily on Giroir’s self-reported us to defer to certain types of judgments made medical history and not mechanical tests or by the ALJ; we defer to the ALJ’s choice be- diagnostic tools. (3) Fontenot testified that he tween conflicting evidence or testimony. would never have ordered Giroir to carry a Avondale Shipyards, 914 F.2d at 90-91. twelve-foot length of angle iron; Fontenot When the ALJ chooses among reasonable, himself had ruptured three disks previously competing inferences from the evidence, we and stated that this increases his awareness of must adopt that inference. Mijangos v. heavy lifting’s risks. Bailey testified that in Avondale Shipyards, Inc., 948 F.2d 941, 945 nineteen years of employment, he has never (5th Cir. 1992); Miller v. Central Dispatch, seen an employee lift and move a piece of 673 F.2d 773, 779 (5th Cir. 1982). Finally, we angle iron measuring over six feet. (4) Giroir, accept the ALJ’s judgments about a witness’s Land, and Bannon Canty testified as credibility unless they are “patently unreason- eyewitnesses to the accident, but the ALJ able.” Hall v. Consol. Employment Sys., Inc., considered their testimony not credible 139 F.3d 1025, 1032 (5th Cir. 1998); Lennon, because of inconsistencies and contradictions. 20 F.3d at 663. Workers had opened an access hole in the hull that would have made it irrational for Giroir to C. enter through the manhole; Giroir’s witnesses Giroir argues that the ALJ’s chronological offered contradictory testimony about whether misunderstanding undermines the entire deci- he cut the angle iron on shore; and shipyard sion, including unrelated credibilit y managers and records reflected that cherry determinations made by the ALJ. On pickers were available to transport large pieces reconsideration, the ALJ admitted the factual of angle iron. All of these subsidiary findings mistake but found that other evidence led the ALJ to conclude that the fight, and not supported his decision. an industrial accident, caused Giroir’s back injury. Giroir fails effectively to contend with the ALJ’s other resolutions of disputed fact: Setting aside the chronological mistake, the (1) Giroir significantly understated the ALJ pointed to ample evidence to support his seriousness of the fight. Bergeron, an conclusion that the fight, rather than the eyewitness, explained that Giroir and his alleged accident, caused Giroir’s injury. Many

of the ALJ’s decisions rested on credibility determinations and reasonable inferences from the facts. Even if, arguendo, we disagreed with the ALJ, we could not determine that his decision was not supported by substantial evi- dence. Substantial record evidence supports all of his subsidiary fact findings, and he rea- sonably chose to believe Conrad’s witnesses and disbelieve Giroir’s.

The petition for review is DENIED.