     Case: 11-60298     Document: 00511643471         Page: 1     Date Filed: 10/25/2011




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

                                                                            FILED
                                                                         October 25, 2011
                                     No. 11-60298
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

P&O PORTS TEXAS, INCORPORATED,

                                                  Petitioner
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,


and

HIPOLITO SALAZAR,

                                                  Respondents



                        Petition for Review of an Order of the
                                Benefits Review Board
                                   BRB No. 10-0583


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Before the court is a petition for review from a decision of the Benefits
Review Board (“BRB”) affirming an award of workers’ compensation. As there
is substantial evidence to support the award, we deny the petition for review.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                No. 11-60298

                                      I.
      Claimant-Respondent Hipolito Salazar is a mechanic formerly employed
by Employer-Petitioner P&O Ports Texas, Inc. On Friday, May 16, 2008,
Salazar was working under a forklift when a wrench came loose and struck him
on his right leg between his thigh and knee. Salazar reported the injury to his
employer when he returned to work on Monday, May 19, 2008. At that time,
Salazar’s knee was bruised and swollen. Engineering manager, Robert Amatra,
then directed Salazar to seek medical treatment. Salazar was treated at the
NOVA Clinic the same day. He was diagnosed with internal derangement of his
right knee, and was prescribed physical therapy and medication.
      On June 12, 2008, an MRI was taken of Salazar’s right knee. The MRI
showed degenerative changes to his medial meniscus, but did not show any
visible tear of the meniscus. Salazar was evaluated by Dr. David Vanderweide
on June 13, 2008. Dr. Vanderweide diagnosed Salazar with a contusion of his
right distal thigh, but concluded that surgical intervention was unnecessary.
      Over the following months, Salazar continued to complain of pain in his
right knee. On December 1, 2008, Salazar returned to the NOVA Clinic,
complaining of pain and swelling in his knee. On December 5, 2008, a second
MRI was performed on Salazar’s knee, revealing a medial meniscus tear and loss
of cartilage near his right patella. Salazar was prescribed pain management.
Dr. Vanderweide evaluated Salazar again on December 15, 2008, and opined
that Salazar’s May 16 injury could not have caused his meniscal tear.
      On February 6, 2009, Salazar was evaluated by Dr. John J. DeBender. Dr.
DeBender diagnosed Salazar with a contusion on his right distal thigh,
traumatic chondromalacia, and a medial plical band in his right knee. Dr.
DeBender determined that it was unlikely that Salazar’s pain was caused by a
torn meniscus.
      At the request of Petitioner, Salazar was evaluated by Dr. Frank C.

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                                  No. 11-60298

Barnes on April 17, 2009. Dr. Barnes diagnosed Salazar with a contusion of his
right quadriceps muscle, which Barnes believed was related to Salazar’s accident
on May 16, 2008. However, Dr. Barnes did not believe that the findings of the
December 2008 MRI were related to his injury.
      Dr. Walter R. Lowe performed surgery to repair Salazar’s right knee
medial meniscal tear on June 11, 2009.         On November 10, 2009, Salazar
returned to Dr. Lowe complaining of severe pain in his right knee. On November
19, 2009, an MRI of Salazar’s knee was taken, revealing small joint effusion and
neuroma. Salazar underwent a second surgical procedure on his knee on
January 29, 2010, which relieved his symptoms.
      At Salazar’s request, Dr. DeBender and Dr. Lowe provided supplemental
medical reports in March 2010. Dr. DeBender concluded that if Salazar had
twisted to avoid contact with the wrench at the time of the accident, the twisting
could have aggravated pre-existing degenerative conditions.            Dr. Lowe
determined that, while it was debatable whether the May 2008 injury caused
Salazar’s meniscal tear, the tear was made more symptomatic by the injury.
      Salazar made a claim for benefits against Petitioner under the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. The
dispute was submitted to an administrative law judge (“ALJ”). On June 8, 2010,
the ALJ rendered a decision and order in favor of Salazar, requiring Petitioner
to pay Salazar compensation benefits and medical expenses. Petitioner appealed
the decision to the BRB, which upheld the ALJ’s ruling. Petitioner then filed a
petition for review before this court.
                                         II.
      “This court reviews the decisions of the BRB for errors of law and applies
the same substantial evidence standard that governs the BRB’s review of the
ALJ’s factual findings.” Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir.
1995). “The findings of the ALJ must be accepted unless they are not supported

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                                  No. 11-60298

by substantial evidence in the record considered as a whole or unless they are
irrational.” Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir.
1991). “‘Substantial evidence in the record considered as a whole’ is a strict and
limiting standard of review.”     Dir., Office of Workers’ Comp. Programs v.
Bethlehem Steel Corp., 620 F.2d 60, 63 (5th Cir. 1980). “Substantial evidence is
evidence that provides a substantial basis of fact from which the fact in issue can
be reasonably inferred” or “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Avondale Indus., Inc. v. Dir., Office
of Workers’ Comp. Programs, 977 F.2d 186, 189 (5th Cir. 1992) (internal
quotation marks and citations omitted).
      “The Board does not have the authority to engage in a de novo review of
the evidence or to substitute its views for those of the ALJ.” Mijangos, 948 F.2d
at 944. “The ALJ’s selection among inferences is conclusive if supported by the
evidence and the law. The ALJ determines the weight to be accorded to evidence
and makes credibility determinations.” Mendoza, 46 F.3d at 500. “[W]here the
testimony of medical experts is at issue, the ALJ is entitled to accept any part
of an expert’s testimony or reject it completely.” Id. at 501.
      A claimant has the initial burden of establishing a prima facie case of a
presumptive entitlement to benefits. To do so, a claimant must show “that (1)
an injury was suffered, and (2) the injury occurred in the course of employment
or was caused, aggravated or accelerated by conditions at the work place.” Ortco
Contractors, Inc., v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003). Once a
claimant has satisfied this burden, “the employer must affirmatively rebut this
presumption with ‘substantial evidence to the contrary.’” Id. (quoting 33 U.S.C.
§ 920(a)). Once an employer produces substantial evidence “-more than a
modicum but less than a preponderance- that the injury was not work-related,
the ALJ must assess the issue of causation by looking at all record evidence.”
Id. at 290. In assessing the issue of causation, the aggravation rule “provides

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                                 No. 11-60298

that, where an employment injury worsens or combines with a preexisting
impairment to produce a disability greater than that which would have resulted
from the employment injury alone, the entire resulting disability is
compensable.” Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.
1986).
      Petitioner asserts that because the record evidence is inconclusive with
respect to whether the May 16 injury in fact caused Salazar’s miniscus tear,
Salazar is not entitled to benefits under the LHCWA. This analysis is flawed for
a number of reasons. In this case, the ALJ determined that, although Petitioner
presented sufficient evidence to overcome Salazar’s presumption of an
entitlement to benefits, upon review of the entire record, the May 16 injury
contributed to or aggravated Salazar’s right meniscal problem. For purposes of
our limited review, the causation requirement is satisfied under the aggravation
rule as long as there is substantial evidence that Salazar’s injury worsened his
condition, even if he cannot conclusively demonstrate that the injury was the
direct or sole cause of his miniscus tear. There is clearly substantial evidence
in the record to support this conclusion. Dr. Lowe, Dr. DeBender, and Dr.
Barnes all reported that the problems Salazar subsequently endured with his
knee were related to his employment injury. Moreover, the ALJ was entitled to
attach greater weight to the conclusions of Dr. Lowe, an expert in knee surgery
who determined that the meniscal tear was made more symptomatic by the
workplace injury, than to the conclusions of Dr. Vanderweide.          The ALJ
emphasized that the absence of symptoms prior to the injury indicated that the
injury worsened an existing knee problem. Considered together, a reasonable
mind might accept this evidence as adequate to support the conclusion that
Salazar’s employment injury worsened a preexisting impairment.




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                               No. 11-60298

                                    III.
     As there is substantial evidence in the record to support the ALJ’s and
BRB’s decisions, the petition for review is DENIED.




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