                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           June 2, 2004

                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                  Clerk


                             No. 03-60617
                           Summary Calendar



LOUISIANA DOCK COMPANY, INC.,

          Petitioner,

                                versus

CLIFTON A. PERTUIT; NATIONAL MAINTENANCE AND REPAIR
OF LOUISIANA; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,

          Respondents.



               Petition for Review of an Order of the
                        Benefits Review Board
                           BRB No. 02-0639


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Petitioner Louisiana Dock petitions for review of a ruling by

the Benefits Review Board (“BRB”) on a claim filed under the

Longshore and Harbor Workers’ Compensation Act.1   The BRB affirmed

the decision of an Administrative Law Judge (ALJ) that Louisiana

Dock was liable for the compensation benefits and medical expenses

     *
      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this opinion should not be published and is not precedent except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.
     1
      33 U.S.C. § 901 et seq.
of one of its former employees, Clifton A. Pertuit.               Louisiana Dock

contends that the ALJ’s decision is not supported by substantial

evidence and that the ALJ erred in finding Louisiana Dock to be

Pertuit’s last responsible employer.            We disagree and AFFIRM.

                                        I

      The case revolves around the claims of Clifton A. Pertuit, a

crane operator, outside machinist, and propeller repairman who

began working for Louisiana Dock in 1977.            In 1989, he injured his

back while lifting a propeller cone to center a wheel.                         He

underwent surgery to repair a herniated disc and returned to work

in 1990 with medical restrictions that limited the work he could

perform.    Nonetheless, he occasionally experienced problems with

his back, and he was under the care of Dr. Gregg Bendrick.                    The

record indicates, moreover, that beginning in January 2000, his

condition began to worsen.

      On   May   15,   2000,   Louisiana      Dock   sold   its    facility   to

Respondent National Maintenance and Repair.             Pertuit remained with

the shipyard as an employee of National Maintenance, with similar

duties and work assignments. Just under two months after the sale,

Pertuit obtained a letter from Dr. Bendrick stating that Pertuit

was unfit for work because of his deteriorating back.                   Shortly

thereafter, Pertuit filed a claim for compensation. Louisiana Dock

and   National   Maintenance     each       contended   that   the   other    was

responsible.     Pertuit brought an action against both parties.              The

ALJ found that Pertuit’s disabling back condition had resulted from

                                        2
the natural progression of the injury he suffered in 1989 and

concluded that Pertuit’s work at National Maintenance had not

aggravated his condition.      Accordingly, the ALJ concluded that

Louisiana Dock was responsible for his compensation and medical

benefits.   On appeal, the Benefits Review Board affirmed the ALJ’s

decision.

                                  II

     The scope of our review of BRB decisions is narrow.                  “We

review a decision of the Benefit Review Board under the same

standard as it reviews the decision of the ALJ: Whether the

decision is supported by substantial evidence and is in accordance

with the law.”2     We “may not substitute our judgment for that of

the ALJ, nor reweigh or reappraise the evidence, but may only

determine whether evidence exists to support the ALJ's findings.”3

Moreover,   “the   ALJ’s   decision       need   not   constitute   the   sole

inference that can be drawn from the facts.”4




     2
      Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991) (quoting Odom Constr. Co. v. United States Dept. of
Labor, 622 F.2d 110, 115 (5th Cir. 1980), cert. denied, 450 U.S.
966 (1981)).
     3
      New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31
(5th Cir. 1997).
     4
      Avondale Industries v. Director, Office of Workers’
Compensation Programs, U.S. Dept. of Labor, 977 F.2d 186, 189 (5th
Cir. 1992).

                                      3
                                       III

     Louisiana Dock’s primary contention is that the ALJ’s finding

that Pertuit’s condition is the natural progression of his 1989

injury is not supported by substantial evidence.                After reviewing

the ALJ’s opinion and the evidence upon which it is based, we

cannot agree.   The ALJ carefully reviewed the testimony of Pertuit

and his treating physician, Dr. Bendrick, as well as the testimony

offered by Dr. Appelbaum, a physician who examined Pertuit in 2001.

In particular, Pertuit testified that he did not aggravate his back

condition   during     the    course   of    his   employment    with    National

Maintenance and that he suffered no new accident there.                   He also

indicated that the discomfort his back injury caused him did not

increase during his time with National Maintenance.                Dr. Bendrick

indicated that Pertuit’s back condition deteriorated significantly

in March 2000 and posited that his disability was the result of the

natural progression of his original back injury.                  Dr. Appelbaum

testified that Pertuit denied suffering any additional trauma or

accident during his work with National Maintenance.                    Given this

record, the ALJ’s conclusion that Pertuit’s disability resulted

from the    natural    progression     of    his    original    back    injury   is

supported by substantial evidence.

      We recognize, as did the ALJ and the BRB, that there is

evidence in the record that could support Louisiana Dock’s claim

that Pertuit aggravated his injury while working at National

Maintenance.     The    ALJ    specifically        considered   this    evidence,

                                        4
evaluated    the     testimony   and   medical          opinions,    assessed   the

credibility of the testifying witnesses, and concluded that Pertuit

did not aggravate his injury at National Maintenance. As noted, we

“may not substitute our judgment for that of the ALJ, nor reweigh

or reappraise the evidence, but may only determine whether evidence

exists to support the ALJ's findings.”5            The ALJ’s findings are not

irrational and are supported by substantial evidence.

     Louisiana Dock next argues that the ALJ made an error of law

by finding Louisiana Dock to be the last responsible employer after

concluding    that    Pertuit    aggravated       his    condition    at   National

Maintenance.       Louisiana Dock’s argument is unpersuasive for the

simple reason that the ALJ did not find that Pertuit’s back

condition    was   aggravated     during    his    employment       with   National

Maintenance.       As noted, there was evidence presented that could

have supported such a finding, but the ALJ rejected this evidence

and concluded that Pertuit did not aggravate his injury, suffer a

new incident, or sustain a new injury while working for National

Maintenance.

                                       IV

     Because there was sufficient evidence supporting the ALJ’s

finding, we AFFIRM the judgment of the Benefits Review Board.

     AFFIRMED.




     5
      New Thoughts Finishing Co., 118 F.3d at 1030-31.

                                       5
