                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                 No. 12-1912
                              ________________

                            JOHN E. GINDVILLE,

                                            Petitioner

                                       v.

      DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS;
       GREENWICH TERMINALS, LLC; COMPANION COMMERICAL
                       INSURANCE COMPANY,

                                         Respondents
                              ________________

               On Petition for Review of the Decision and Order of
                           The Benefits Review Board
                               (BRB No. 11-0583)
                               ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                April 15, 2013


           Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges

                         (Opinion filed: April 25, 2013)

                              ________________

                                  OPINION
                              ________________

AMBRO, Circuit Judge



                                       1
       Petitioner John E. Gindville seeks review of the decision of the Benefits Review

Board (“Board”) affirming the Administrative Law Judge‟s (“ALJ”) denial of

compensation benefits from his employer, Greenwich Terminals, LLC (“Greenwich”).

Gindville sought those benefits pursuant to the Longshore & Harbor Workers‟

Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA”). The ALJ determined that

Gindville had failed to make out a prima facie case of a compensable injury because the

evidence was insufficient to establish the existence of a work-related incident that could

have caused his right knee condition, and therefore denied his claim for temporary total

disability and medical benefits. The Board affirmed as neither inherently incredible nor

patently unreasonable the ALJ‟s conclusion that no credible evidence supported finding

that an accident occurred at work on the date alleged by Gindville. For the following

reasons, we affirm.

                                             I.

       Gindville, a career longshoreman on the Philadelphia/Camden waterfront, claims

that he injured his right knee on June 30, 2009, while walking down a gangway during a

shift he was working for Greenwich.1 He filed a claim in September 2009 for benefits

under the LHWCA, which Greenwich refused on the ground that no work-related injury

had occurred. Until one week prior to the alleged injury, Gindville served as a “ship

boss” for Greenwich for over 20 years; however, on June 24, 2009, he was demoted from




1
 Gindville has a significant history of knee problems, and he previously injured his left
knee when he fell while working for Greenwich in November 2007. J.A. at 118.
                                             2
this position to “gang boss” due to company cutbacks.2 Gindville‟s testimony before the

ALJ regarding his demotion, which was relayed to him on June 24 during a meeting with

John Burleson, general manager of Greenwich, conflicted with Burleson‟s recounting of

the meeting. Burleson testified that Gindville responded to the news angrily and

threatened the company by stating he would purposely get hurt; Gindville denied having

done so.3

       As for the injury Gindville allegedly suffered on June 30, it is undisputed that

there were no witnesses to the accident. Gindville testified about the circumstances

surrounding his injury, asserting that he turned while on the gangway and twisted his

knee, feeling a “pop.” Aside from his own testimony, Gindville‟s son testified that he

saw his father “limping over . . . from the gangway,” and that, when he asked him what

had happened, Gindville said “I just twisted my knee on the gangway.” J.A. at 622. The

son stated he responded by suggesting that Gindville inform Captain William Sammons,

Greenwich‟s director of safety and loss control, of his injury. Gindville said that he then

reported his injury to Sammons, who was standing near a fellow longshoreman, Russell

Kosofsky. Id. at 557. Kosofsky similarly testified that, while getting a safety vest from

Sammons, he heard Gindville tell the Captain he had twisted his knee. Id. at 617–18.




2
  A “gang” is the basic working unit for longshoremen, each of which is directly
supervised by a “gang boss,” and “ship bosses” are directly in charge of all “gangs”
working a ship.
3
  Gindville also disputed several descriptions of alleged conversations with and
comments made by him as recounted by various Greenwich employees. Those
inconsistencies the ALJ noted in reaching her decision that Gindville lacked credibility.
                                             3
       Captain Sammons‟ testimony, however, contradicted this version of events. He

had no recollection of Gindville reporting an injury or accident to him on June 30, 2009,

and that Greenwich‟s safety records did not contain any injury report for Gindville on

that day. Id. at 690, 693. Sammons‟ testimony also contradicted Kosofsky‟s, as

Sammons explained that he personally handed out only two safety vests on June 30,

neither of which was issued to Kosofsky, and that Greenwich‟s records for safety vest

issuance confirmed that Kosofsky did not receive a safety vest from the Captain that day.

Id. at 694–95, 716–17, 720. Sammons also provided detailed testimony regarding

Greenwich‟s procedures for documenting both work injuries and the issuance of new

safety vests. Id. at 683–89, 692, 723–24.

       The ALJ also reviewed medical testimony and opinions submitted by both parties.

The only medical corroboration for Gindville‟s alleged June 30 injury was provided by

his treating physician, Dr. Peter J. DeLuca, who testified that Gindville visited him in

July 2009 for pain in his right knee from a recent work-related injury. Id. at 219. No

date of accident or manner of injury was mentioned in Dr. DeLuca‟s physician notes of

this visit, however, whereas his notes from previous visits contained detailed descriptions

of Gindville‟s injuries and the way in which they were sustained. Id. at 219, 233. Dr.

DeLuca acknowledged that, other than a work-restriction document on which the date of

injury was changed from November 2007 (“a clerical error”), the date June 30, 2009

appeared nowhere in his treatment records. Id. at 223, 237. The treatment records of

four other orthopedic physicians who examined Gindville in connection with his claim



                                             4
were submitted to the ALJ, none of which contained any reference to an accident or

injury at work on June 30, 2009.4

       The ALJ issued her decision in April 2011 denying Gindville‟s claim for medical

and disability compensation benefits. Reviewing this and the other evidence submitted,

the ALJ found Gindville had failed to prove an accident occurred in the course of

employment, and thus had not established a prima facie case for compensation. Under

§ 20(a) of the LHWCA, a presumption is created that an injury arose out of employment

if the claimant meets his burden of showing that (1) he sustained an injury or physical

harm, and (2) a work-related accident occurred, or conditions existed at work, which

could have caused or aggravated that harm. See Merrill v. Todd Pac. Shipyards Corp., 25

BRBS 140 (1991); Kier v. Bethlehem Steel Corp., 16 BRBS 128, 129 (1984). The ALJ

determined that Gindville had failed to establish the second element of a prima facie

case, finding his testimony to be lacking credibility due to inconsistencies with the

testimony of other Greenwich employees and physicians‟ treatment records.

       In February 2012, the Board affirmed the ALJ‟s determination that Gindville had

failed to make out a prima facie case necessary to invoke the § 20(a) presumption of a

work-related injury and, accordingly, her denial of benefits. The Board rejected that the

ALJ erred in addressing evidence other than Gindville‟s submissions to determine

whether he established a prima facie case. It noted the ALJ‟s authority to make

4
 For instance, Dr. Mario J. Arena stated that, during his August 2009 examination,
Gindville complained of pain in both knees, which he attributed to activities associated
with his change in duties as gang boss. J.A. at 340–41. Dr. Arena explained it was his
practice to take detailed histories of patients, and that he was certain Gindville did not
mention a specific injury involving a twisted knee on June 30, 2009. Id. at 343–44.
                                             5
credibility determinations based on her evaluation of all witnesses and evidence

presented. Gindville now petitions us to reverse the Board‟s decision.

                                            II.

       The ALJ had jurisdiction to hear Gindville‟s claim for benefits pursuant to 33

U.S.C. § 919, and the jurisdiction of the Board to hear and determine appeals of the

decision of the ALJ arose under 33 U.S.C. § 921(b). Pursuant to 33 U.S.C. § 921(c), we

have jurisdiction to review the final decision and order of the Board.

       Our review of the Board‟s interpretation of the law and adherence to the statutory

scope of review is plenary. Barbera v. Dir., OWCP, 245 F.3d 282, 287 (3d Cir. 2001)

(citing Pa. Tidewater Dock Co. v. Dir., OWCP, 202 F.3d 656, 660 (3d Cir. 2000)). “The

Board must accept the ALJ‟s findings unless they are contrary to law, irrational or

unsupported by substantial evidence in the record as a whole.” Id. (citing Pa. Tidewater

Dock Co., 202 F.3d at 660; O’Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359

(1965)). Credibility determinations made by the ALJ may not be overturned unless they

are in “conflict with the clear preponderance of the evidence, or where the determinations

are „inherently incredible or patently unreasonable.‟” Cordero v. Triple A Mach. Shop,

580 F.2d 1331, 1335 (9th Cir. 1978) (internal citations omitted) (quoting NLRB v.

Anthony Co., 557 F.2d 692, 695 (9th Cir. 1977)).

                                            III.

       Having reviewed the record, we are satisfied that the Board applied the proper

scope of review to the ALJ‟s findings and credibility determinations. The ALJ found

Gindville‟s testimony inconsistent with, and uncorroborated by, the record as a whole.

                                             6
The Board rejected Gindville‟s challenge to the ALJ‟s consideration of evidence

submitted by Greenwich to find him not credible, and it concluded that the ALJ was

permitted to “assess the sufficiency of [Gindville‟s] evidence supportive of his prima

facie case in light of evidence that detracts therefrom.” J.A. at 86 (citing Goldsmith v.

Dir., OWCP, 838 F.2d 1079 (9th Cir. 1988); Brown v. Pac. Dry Dock, 22 BRBS 284

(1989); Mackey v. Marine Terminals Corp., 21 BRBS 129 (1988)). We agree with the

Board that the ALJ was entitled to evaluate the credibility of Gindville‟s testimony

regarding the occurrence of a work-related accident in light of other relevant record

evidence. See, e.g., Bartelle v. McLean Trucking Co., 687 F.2d 34 (4th Cir. 1982).

       The Board refused to disturb the ALJ‟s credibility determinations, finding them

neither patently unreasonable nor inherently incredible. J.A. at 88 (citing Cordero, 580

F.2d 1331; Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962)). Thus, in

the absence of credible evidence in the record to support Gindville‟s assertion that an

accident occurred at work on June 30, 2009, the Board affirmed the ALJ‟s determination

that Gindville had failed to make out his prima facie case. Id. Our review of the record

confirms that the ALJ‟s decision to discredit Gindville‟s testimony, and conclusion that

he was not entitled to the § 20(a) presumption, were rational, extensively explained, and

supported by substantial evidence. See Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71

(1996).

                                      *   *   *   *   *

       Accordingly, we deny the petition for review of the Board‟s decision affirming the

ALJ‟s denial of benefits.

                                              7
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