                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-2309



NATHANIEL MCKENZIE,

                                                         Petitioner,

           versus


UNIVERSAL MARITIME SERVICES; SIGNAL MUTUAL
INDEMNITY ASSOCIATION, LIMITED; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

                                                        Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(05-0114)


Argued:   November 28, 2006                 Decided:   March 7, 2007


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Petition for review granted; vacated and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Judge Duncan joined.


ARGUED: Bruce Bennett Eisenstein, EISENSTEIN, EISENSTEIN &
EISENSTEIN, Baltimore, Maryland, for Petitioner. Lawrence Philip
Postol, SEYFARTH & SHAW, L.L.P., Washington, D.C., for Respondents.
ON BRIEF: Michael C. Eisenstein, EISENSTEIN, EISENSTEIN &
EISENSTEIN, Baltimore, Maryland, for Petitioner.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

     Nathaniel McKenzie has filed a petition for review of the

Decision and Order of the Benefits Review Board (“BRB”) denying his

claim for disability benefits under the Longshore and Harbor

Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901 et seq.       We

grant the petition for review, vacate the BRB’s order, and remand

for further proceedings.

     On February 26, 2003, McKenzie, while working for Universal

Maritime Services (“Universal”), slipped and fell on his back,

striking his head on the asphalt.     At home that evening,   McKenzie

asked his wife to check the back of his head because he       felt like

it was bleeding.    Mrs. McKenzie did not find any blood, but she

noted that the area felt soft to the touch.       The following day,

McKenzie worked a normal shift.   When Mrs. McKenzie came home that

evening, she found McKenzie lying down, which he normally did not

do after work.   Mrs. McKenzie also noticed on both February 26 and

27 that McKenzie seemed tired and that he did not play the lottery,

which was part of his normal routine.

     On the morning of February 28, McKenzie went outside to brush

snow from his automobiles.   When McKenzie came inside, he told his

wife that he had a headache and asked her for some of her migraine

medication.   After Mrs. McKenzie gave him some medicine, McKenzie

went downstairs to the kitchen to get water.      Mrs. McKenzie then

heard a noise and found McKenzie leaning up against the dishwasher.


                                  2
Mrs. McKenzie led McKenzie upstairs to the bedroom and placed him

on the bed.       When McKenzie attempted to get up, he fell onto the

floor, but he did not hit his head.              At this point, an ambulance

was called for.      The ambulance crew helped McKenzie back into bed

and told Mrs. McKenzie to watch him and call again if his symptoms

worsened.

     Shortly afterward, Mrs. McKenzie noticed that McKenzie’s left

arm was dragging and his left side appeared weak.                  Mrs. McKenzie

again called for an ambulance, and McKenzie was transported to a

hospital, where a CT scan revealed that he had an acute subdural

hematoma.     During emergency surgery, a surgeon removed an acute,

traumatic right subdural hematoma from McKenzie’s head.                      After

surgery, McKenzie was in a coma for approximately one week and was

placed on a ventilator.       McKenzie gradually improved and returned

home several months later.         McKenzie continued to suffer residual

effects    from    this    incident,     including       being    confined   to   a

wheelchair.

     McKenzie thereafter filed a claim for disability benefits

under the LHWCA.       Universal contested McKenzie’s eligibility for

benefits, and the claim was referred to an administrative law judge

(“ALJ”).    Following a hearing, the ALJ issued a Decision and Order

denying    the    claim.     The   ALJ       initially    found    that   McKenzie

established a prima facie case sufficient to invoke the statutory

presumption that his injury was caused by the February 26 fall.


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See 33 U.S.C. § 920(a) (“In 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.”); Universal

Maritime Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997) (“an

employee seeking to have the benefit of the statutory presumption

must first allege (1) an injury or death (2) that arose out of and

in the course of (3) his maritime employment”).               However, the ALJ

further    found     that   Universal        produced   substantial    evidence

sufficient to rebut the presumption, and he then concluded that

McKenzie’s hematoma did not arise out of his employment with

Universal.       See Moore, 126 F.3d at 262 (“If an employer does not

offer substantial evidence to rebut the presumption, . . . the

presumption      provided     by   §   20    will   entitle   a   claimant    to

compensation.       When the employer, however, does offer evidence

sufficient to justify denial of a claim, the statutory presumption

‘falls out of the case’ and does not remain as evidence that is

weighed in finding facts.”).           The BRB affirmed.

      In   his    analysis,    the     ALJ    correctly   noted   an   apparent

inconsistency in the record concerning whether McKenzie fell on

February 28 while he was cleaning snow from his automobiles.                 J.A.

11.   Despite noting this inconsistency, the ALJ’s analysis did not




                                         4
reveal that there is no first-hand evidence of such a fall.1          This

is significant because Dr. Charles Lancelotta, on whose opinion the

ALJ primarily relied, acknowledged that the majority of hematomas

are caused by trauma, but when pressed on this point, indicated

that McKenzie’s hematoma could have been caused by the putative

fall on February 28.    J.A. 149.     Of course, this latter assertion

is not supported by the record.

     Leaving aside Dr. Lancelotta’s opinion based on the assertion

of a fall on February 28, which is not supported by the record, his

testimony   merely   asserts   that   McKenzie’s   hematoma   was   either

spontaneous or resulted from McKenzie’s use of blood thinners.2

However, as the ALJ noted, “[h]ypothetical theories, inferences or

speculation are insufficient to rebut the presumption” that the

hematoma was job-related.      J.A. 14.

     Because the ALJ did not properly analyze the testimony, we

vacate the denial of compensation and benefits, and we remand this

case to the Board for further proceedings consistent with this




     1
      The mention of a fall on February 28 is likely accountable to
misreview of ambulance notes by subsequent health care personnel.
At oral argument, counsel for Universal could not point to any
first-hand evidence of a fall on February 28.
     2
      However, Dr. Lancelotta did not explain his conclusion in
light of the fact that McKenzie’s clotting factors were normal at
the time of his acute hematoma. Moreover, Dr. Lancelotta did not
account for McKenzie’s abnormal behavior on February 26 and 27.

                                      5
opinion.   We direct that the Board reassign this case to a

different ALJ on remand.3

                                 PETITION FOR REVIEW    GRANTED;
                                 VACATED AND REMANDED




     3
      This direction does not suggest that the ALJ acted
improperly.    However, the remand will require a review of
additional facts in the record and a reassessment of expert
testimony about which the ALJ has already formed an opinion.

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