     Case: 18-60219      Document: 00514851745         Page: 1    Date Filed: 02/26/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-60219                 United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                   February 26, 2019
DARRELL BOUDREAUX,
                                                                     Lyle W. Cayce
              Petitioner                                                  Clerk


v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; WILKINSON
TECHNOLOGIES; AMERICAN INTERSTATE INSURANCE COMPANY,

              Respondents


                       Petition for Review of an Order of the
                               Benefits Review Board
                                  BRB No. 17-0487


Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT,
Circuit Judges.

PER CURIAM:*
       Darrell Boudreaux filed this petition for review seeking reversal of the
Benefits Review Board’s (“the Board”) order affirming the decision of the
Administrative Law Judge (“ALJ”) denying Boudreaux’s claim for benefits
against his employer under the Longshore and Harbor Workers’ Compensation
Act (“the Act”), 33 U.S.C. §§ 901–950. We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60219
                     I. Factual & Procedural Background
      In August of 2012, Boudreaux became employed as a rigger for Wilkinson
Technologies (“Wilkinson”). He filled out a medical history questionnaire and
indicated that he did not have any long-term health problems or physical
conditions. He did not respond to the question on the form inquiring as to
whether he had ever had surgery.
      On October 9, 2013, Boudreaux was working on a vessel named the M/V
MS MEGAN. Early that morning at approximately 4:00 a.m., Boudreaux was
riding in a personnel basket that was being lifted by a crane over the vessel
when he fell out of the basket onto the vessel’s platform. The record reflects
that he fell a distance of about two or three feet. At the time, there was another
employee riding in the basket across from Boudreaux and several witnesses to
the incident. Witnesses reported that Boudreaux immediately stood up and
walked away after the fall. He then filled out an accident report. He was seen
by medical staff and complained of knee and shoulder pain. He explained that
he twisted his knee while falling out of the basket. He disclosed at that time
that he previously had knee surgery. He was given Aleve and cleared to return
to work.
      On October 10, he was given a drug test and tested positive for
amphetamines and cocaine. Because he did not return to work after the
incident, he was terminated in November of 2013. 1 According to Boudreaux,
when he fell out of the personnel basket, he sustained a knee injury that
aggravated his preexisting knee condition. He now claims he is in need of a
total knee replacement.




      1  The record indicates that Boudreaux made one very brief attempt to return to work
on light duty but was unsuccessful and did not attempt to work again after that point.
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                                      No. 18-60219
       Boudreaux filed a claim for benefits under the Act 2 against Wilkinson
and the case was referred to the ALJ for hearings in March and October of
2016. During the second hearing in October, both parties were given an
opportunity to call and cross-examine witnesses, offer exhibits, present
arguments, and submit post-hearing briefs. The ALJ issued a ruling in April
of 2017, denying Boudreaux’s claims for benefits. In his decision and order, the
ALJ explained that Boudreaux failed to carry his burden of proving by a
preponderance of the evidence that the October 2013 fall aggravated his
preexisting knee injury. Boudreaux appealed to the Board who affirmed the
ALJ’s Decision and Order. 3 Boudreaux then filed this petition for review.
                               II. Standard of Review
       “We review decisions by the [Board] only to determine whether it
adhered to the proper scope of review—whether the ALJ’s findings were
supported by substantial evidence and were consistent with the law.” Ramsay
Scarlett & Co. v. Dir., Office of Workers’ Comp. Programs, 806 F.3d 327, 330
(5th Cir. 2015) (citing Ceres Gulf, Inc. v. Dir., Office of Worker’s Comp.
Programs, 683 F.3d 225, 228 (5th Cir. 2012)). “Substantial evidence is ‘that
relevant evidence—more than a scintilla but less than a preponderance—that
would cause a reasonable person to accept the fact finding.’” Id. The ALJ is the
sole fact finder and makes all credibility determinations. Id.




       2 33 U.S.C. §§ 901–950.
       3 The record shows that Wilkinson agreed to pay Boudreaux benefits under the Act in
exchange for his dismissal of his Jones Act claims against Wilkinson. According to Wilkinson,
although it did briefly pay Boudreaux benefits, it ceased paying after Dr. John Budden was
deposed and opined that Boudreaux would have needed a total knee replacement irrespective
of the October 2013 fall. The ALJ concluded, and the Board agreed, that Wilkinson reserved
all defenses under the Longshore Act, which governed Boudreaux’s remaining claims against
Wilkinson. We do not disturb this conclusion on appeal.
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                                 No. 18-60219
                                III. Discussion
      Under the Act, a claimant can establish “a prima facie case for coverage
by showing that (1) a harm occurred and (2) the harm may have been caused
or aggravated by a workplace condition.” Id. If the claimant meets these two
requirements, a presumption arises that the claim falls under the Act. Id.
(citing 33 U.S.C. § 920(a)). The burden then shifts to the employer to rebut the
presumption “through facts” showing that the harm was not work-related. Id.
at 331. “If the ALJ finds that the employer rebutted the presumption, then the
ALJ must weigh all of the evidence to determine whether the harm was caused
by the claimant’s employment at the covered situs.” Id.
      In the proceedings below, the ALJ first acknowledged, and neither party
disputed, that Boudreaux “had a significant pre-existing condition in his right
knee.” The ALJ based this finding on the numerous medical records and
medical expert testimony presented at the hearing. The ALJ then reasoned
that, under the Act, Boudreaux would have to show that his preexisting knee
condition was aggravated by the October 2013 incident. See 33 U.S.C. § 920.
      Boudreaux testified at the hearing and explained that as he was being
lifted in the basket, it caught the guard rail causing the rope to slack which
caused him to lose his grip. His right leg and foot then slipped and he fell out
of the basket. He stated that he broke his fall with his hand and arm but his
knee hit the deck. The ALJ also examined the written statements and
depositions of multiple witnesses to the accident, most of whom agreed that
the basket did not hit anything but that one of the riders fell out of the basket
onto the deck. Wilkinson disputed that Boudreaux even fell from the personnel
basket. The ALJ rejected this argument concluding that the “clear weight of
the evidence is that [Boudreaux] did suffer a fall in or from the personnel
basket.”


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                                 No. 18-60219
      The ALJ also rejected Wilkinson’s argument that the cause of the fall
was Boudreaux’s intoxication. Boudreaux testified at the hearing that he had
last used cocaine in early September of 2013 with a stripper and some friends
in a hotel. Earlier when he was deposed, however, Boudreaux stated that he
had last used cocaine during the three-day break just prior to the October 9,
2013 fall. At the hearing, he disclaimed his prior deposition testimony but also
admitted to drinking and using cocaine in the past, though he could not
remember specific dates. William George, a toxicologist and pharmacologist,
testified at the hearing that the positive drug test results indicated that
Boudreaux had used cocaine within three days of the drug test given to him
after the October 2013 incident. The ALJ accepted the positive drug test
evidence but could not conclude that the “fall was solely due to [Boudreaux’s]
impairment,” if he was impaired at the time of the fall.
      The ALJ reasoned that Boudreaux fell either because his knee gave out,
the basket struck the guardrail, or a combination of both and that the fall was
in the scope and course of his employment. On this ground, the ALJ observed
that Boudreaux benefited from the Act’s presumption that the fall did
aggravate his preexisting knee condition. 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—
(a) That the claim comes within the provisions of this chapter.”). However, the
ALJ then determined that Wilkinson had rebutted the § 920(a) presumption
with substantial evidence to the contrary.
      Introduced at the hearing were extensive medical records that reflected
a long-standing medical history related to Boudreaux’s knee condition. He had
his first knee surgery in 1993, after a knee fracture, which left an 8-inch scar.
He had another knee surgery in 2001. The medical records showed that he
complained of sustaining multiple injuries to his knee between 1992 and 2013.
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                                      No. 18-60219
These alleged injuries include but are not limited to the following: (1) in 2003,
he fell from an upper bunk and injured his knee; (2) in 2005, he fell from a
height of twelve feet and injured his knee; (3) in 2006, he had a motorcycle
accident and injured his knee; (4) while incarcerated in 2007, he slipped on
some spilt milk and injured his knee; (5) in 2008, he had a motor vehicle
accident and injured his knee; (6) in 2009 he went to the hospital complaining
that his knee was popping in and out of place; (7) also in 2009 he fell down a
flight of stairs and injured his knee; and (8) in 2010, he reported that he was
involved in a motor vehicle accident and injured his knee. 4 The medical records
also indicate a repeated and long-standing pattern of Boudreaux presenting to
the hospital emergency room and various doctors’ offices complaining of knee
pain and asking for pain medication. The records also show that he claimed to
have lost or misplaced his pain medication on several occasions and needed
more. Nevertheless, in spite of his extensive medical history involving repeated
knee injuries and complaints of knee pain, Boudreaux testified at the hearing
before the ALJ that he had not had any real problems with his knee until the
October 2013 fall while working for Wilkinson.
       The ALJ also examined the testimony of three physicians. Dr. John
Budden, Boudreaux’s past treating physician, 5 explained that he originally
opined that the 2013 fall aggravated Boudreaux’s preexisting knee condition
but that he based this opinion on Boudreaux’s report that he had a history of
being symptom free until the fall. Later, however, when Dr. Budden had access
to Boudreaux’s medical records and was able to see his full history of knee
surgeries, repeated knee injuries, and complaints of pain followed by medical


       4 The record does not reflect that Boudreaux reported additional physical injuries for
the years of 2011 and 2012.
       5 Dr. Budden treated Boudreaux for the first time in 1993 for a fracture to his right

knee but, for reasons that are unclear from the record, did not see Boudreaux again as a
patient until March of 2014.
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                                 No. 18-60219
treatments to his knee, he concluded that the 2013 fall did not accelerate any
need for a knee replacement that he already had prior to the fall. Dr. Budden
stated that “in light of the extensive history of trauma and pain it was unlikely
that the fall aggravated [Boudreaux’s] pre-existing knee condition.” Dr.
Richard Myer who examined Boudreaux’s records only, agreed with Dr.
Budden’s conclusion that that 2013 fall did not aggravate the preexisting knee
condition. Dr. Malcolm Stubbs, on the other hand, opined that Boudreaux’s fall
did appear to aggravate his preexisting knee condition but qualified his opinion
on Boudreaux’s self-report that his symptoms only increased after the fall.
      The ALJ concluded that Boudreaux lacked credibility due to his failure
to provide Drs. Budden and Stubbs with his full and accurate medical history.
The ALJ further reasoned that Dr. Stubbs’s opinion carried less probative
value because it was based on Boudreaux’s self-reporting that his knee
symptoms increased only after the 2013 fall—a fact that was controverted by
his medical history. The ALJ also took note of Boudreaux’s inaccurate
accounting of his cocaine use prior to the fall, which was contradicted by the
drug test lab report and George’s testimony. The ALJ observed that this
discrepancy made him less reliable, regardless of whether it was caused by
Boudreaux’s deception or his poor memory. For these reasons, the ALJ
determined that Boudreaux had failed to carry his burden of establishing by a
preponderance of the evidence that the October 2013 fall aggravated his
preexisting knee condition. See Ceres Gulf, 683 F.3d at 232 (noting that a
claimant must “prove causation by a preponderance of the evidence”).
      On review, the Board held that the ALJ properly applied the Act’s
burden-shifting framework and relied on substantial evidence when making
his findings. See Ramsay Scarlett, 806 F.3d at 331. We agree. As the Board
noted, the ALJ’s finding was rational that Boudreaux failed to carry his burden
of establishing that the October 2013 fall aggravated his underlying knee
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                                 No. 18-60219
condition given the extensive medical testimony and evidence to the contrary
presented at the hearing. Id. at 330–31. The Board was also warranted in
concluding that the ALJ’s credibility findings were rational given Boudreaux’s
failure to provide an accurate and complete medical history to the testifying
physicians and his lack of truthfulness about his drug use. On the record before
us, the ALJ correctly determined that Boudreaux failed to carry his burden of
establishing by a preponderance of the evidence that the 2013 fall aggravated
his preexisting knee condition. See Ceres Gulf, 683 F.3d at 232. Likewise, the
record underpins the Board’s conclusion that the ALJ’s “findings were
supported by substantial evidence and were consistent with the law.” See
Ramsay Scarlett, 806 F.3d at 330.
                               IV. Conclusion
      For the foregoing reasons, we AFFIRM the Decision and Order of the
Benefits Review Board.




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