     Case: 10-60686 Document: 00511461685 Page: 1 Date Filed: 04/29/2011




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

                                                  FILED
                                                                            April 29, 2011

                                     No. 10-60686                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MICHAEL T. GOLD,

                                                   Petitioner,
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; DOLPHIN SERVICES, L.L.C.,

                                                   Respondents.




                         On Petition for Review of a Judgment
                             of the Benefits Review Board
                                   BRB No. 09-0774


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Michael T. Gold petitions this court for review of a decision of the Benefits
Review Board affirming an administrative law judge’s denial of his claim for
workers’ compensation under the Longshore and Harbor Workers’ Compensation
Act.1 We have jurisdiction over the petition pursuant to 33 U.S.C. § 921(c).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. §§ 901-950.
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                                  No. 10-60686

Because the Benefits Review Board followed the correct legal standard and
adhered to its proper scope of review, we affirm.
                                        I
      Gold worked for Dolphin Services, L.L.C. as an offshore rigger. He claims
that he was injured while performing his duties on November 9, 2007. According
to Gold, he woke up on November 10 with back pain, reported his injury to a
supervisor, and filled out an accident report with a supervisor. He did not see
the on-board medic, and he returned to work after filling out the accident report.
He continued to work between twelve and sixteen hours a day as a rigger, work
which required repetitive bending, stooping, and lifting. Gold claims that his
back pain continued throughout this period.         He returned home for the
Thanksgiving holidays on November 19; he did not see a physician while on
shore, despite having health insurance and access to a public hospital.
      On November 26, he returned to his work offshore and continued working
in the same position as a rigger through December 19, when he returned home
for the Christmas holidays. He claims that the tension in his back was “easing
up” during this time, but that he still felt stiffness and mild pain. He saw his
family physician during the Christmas holidays for a rash on his face but did not
report any back pain.
      Gold returned to work in January of 2008 in Dolphin’s on-shore yard,
carrying boxes of ceramic tile and laying tile. He testified that he felt a mild
burning pain in his lower back during this time.          His employment was
terminated on January 17 because he reported to work with alcohol in his
system.   Gold eventually went to an emergency room on March 11, 2008,
reporting back and neck pain. The records from that visit show that Gold had
sciatica and degenerative changes in his spine, which was otherwise normal.
      Gold filed his first LS-203, the U.S. Department of Labor’s claim form for
employee compensation, on March 12, giving December 6, 2007, as the date of

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                                 No. 10-60686

injury. He filed a second and then a third LS-203 on April 23, listing October
2007, and then December 7, 2007, as the dates of injury. Gold’s attorney, on his
behalf, filed a fourth and final LS-203 on July 25, 2008, which listed
November 9, 2007, as the date of his injury. A few days after Gold filed the
fourth LS-203, Dolphin filed to controvert Gold’s right to benefits and refusing
medical care and compensation.
      When Gold and Dolphin were unable to resolve their issues during an
informal conference, the District Director referred the matter to the Office of
Administrative Law Judges for a formal hearing. The Administrative Law
Judge (ALJ) who heard the case found that Gold’s credibility was suspect and
was not therefore sufficient to establish that an injury occurred. The ALJ also
found that no medical evidence supported a finding that Gold suffered an injury
under the Longshore and Harbor Workers’ Compensation Act (LHWCA or Act).
In the alternative, the ALJ found that even if Gold could show he sustained an
injury, there was insufficient evidence to establish that any work-related
accident, exposure, event, or episode occurred that could have caused the injury.
The ALJ based this finding on the many internal inconsistencies in Gold’s
statements, as well as the testimony from others that contradicted Gold’s
testimony.   The ALJ therefore denied Gold’s claim for benefits under the
LHWCA.
      Gold appealed the ALJ’s decision to the Benefits Review Board (BRB or
Board). The BRB concluded that there was “evidence in the record” to support
the ALJ’s determination that Gold had not established that he sustained the
harm alleged. However, the Board also determined that the test results from
Gold’s physician visits “arguably” established that he sustained a “harm.” But,
the BRB continued, any error by the ALJ “in this regard [was] harmless
as . . . claimant must also establish that an accident occurred at work or that
working conditions existed which could have caused his back condition” in order

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to “establish the compensability of his claim.” The BRB concluded that the ALJ
committed no error in finding that Gold had not established the accident or
working conditions element, and that the denial of benefits was supported by the
evidence and the law. The Board therefore affirmed the ALJ’s decision. On
appeal to this court, Gold claims that the decisions of the BRB and ALJ contain
errors of law regarding the proper application of relevant provisions of the
LHWCA and implementing regulations.
                                               II
       The BRB must “accept the findings of the ALJ if they are rational and
supported by substantial evidence in the record considered as a whole.” 2 In
reviewing the BRB’s decision, this court’s “only function is to correct errors of
law and to determine if the BRB . . . adhered to its proper scope of review.” 3 In
other words, “once the BRB affirms an order of the ALJ, we need only inquire
whether the BRB correctly concluded that the ALJ’s order was supported by
substantial evidence on the record as a whole and is in accordance with the
law.”4 We review all questions of law de novo; “the ALJ, as sole factfinder, is
entitled to consider all credibility inferences and his selection among inferences
is conclusive if supported by the evidence and the law.” 5
                                               III
       Gold argues on appeal that the decisions of the ALJ and BRB contain two
errors. First, he argues that the ALJ and BRB erred as a matter of law under
33 U.S.C. § 907 and 20 C.F.R. § 702.403 by failing to order the authorization and



      2
          Gulf Best Electric, Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004).
      3
        Bollinger Shipyards, Inc. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of
Labor, 604 F.3d 864, 870 (5th Cir. 2010).
      4
          Id. at 871 (internal quotation marks, citation, and brackets omitted).
      5
          Id. (internal quotation marks, citation, and brackets omitted).

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payment for Gold’s choice of physicians. Second, Gold claims that the ALJ and
BRB incorrectly determined that the presumption afforded claimants under
33 U.S.C. § 920(a) did not apply.
                                             A
       Gold argues that the LHWCA gives an employee claiming to be injured a
right to freely choose his own treating physician, that this right vested when
Gold gave verbal notice of his injury to his employer, and that the BRB erred in
determining that he had not established this right. We assume without deciding
that Gold’s verbal statement to a supervisor that he was injured constituted
“notice” under the statute.
       Gold argues, in effect, that his mere allegation of injury invokes the
benefits and presumptions afforded to him as an employee under the Act. Gold
is correct that the LHWCA gives an injured employee the right to choose an
“attending physician . . . to provide medical care” under the Act.6 But the burden
of persuasion to prove coverage and right to compensation under the Act is on
the claimant, and Gold did not meet this burden, as discussed below.7
       This court has previously held that an employee must establish that “his
injury was work-related” to be “entitled to all reasonable and necessary medical
expenses related to that injury.”8         It follows that the claimant must first
establish that the harm alleged meets the Act’s definition of “injury”: “accidental
injury or death arising out of and in the course of employment.”9 Mere allegation


       6
           See 33 U.S.C. § 907(b).
       7
        See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries,
512 U.S. 267, 280-81 (1994) (rejecting the “true doubt” rule, under which the burden of
persuasion, and not merely the burden of production, shifted to the party opposing the
LHWCA benefits claim).
       8
        Amerada Hess Corp. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of Labor,
543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C. § 907).
       9
           33 U.S.C. § 902(2).

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of injury is not sufficient to fulfill this burden,10 despite Gold’s assertions
otherwise. Therefore, Gold’s right to a physician of his choosing did not vest
upon his mere notice to his employer, but required proof that he was injured as
defined by the statute. The BRB’s legal interpretation on this matter was
correct.
       Gold’s claim that the decisions of the ALJ and the BRB violated his Fifth
Amendment due process right by not authorizing treatment by his chosen
physician fails for the same reasons.
                                              B
       Gold also argues that the decisions of the BRB and the ALJ misapplied the
LHWCA presumption under 33 U.S.C. § 920(a). Gold’s argument on this point
is also unavailing.
       The LHWCA provides a presumption of compensation,11 often referred to
as the “Section 20 presumption,” in favor of a claimant who can establish a
prima facie case of injury; that is, that the claimant can prove that “(1) he
suffered a harm and (2) and a condition of the workplace could have caused,
aggravated, or accelerated the harm.”12 Once the presumption is invoked, the
burden shifts to the employer to rebut it “through facts . . . that the harm was
not work-related.” 13
       The ALJ found that Gold had not established the first element of the
prima facie case and, in the alternative, that he also failed to establish the

       10
         See Amerada Hess Corp., 543 F.3d at 761; cf. Turner v. Dir., Office of Workers’ Comp.
Programs, U.S. Dep’t of Labor, 334 F. App’x 693, 696 (5th Cir. 2009) (citing Amerada Hess
Corp., 543 F.3d at 761) (holding that the claimant “bore the burden to prove—not merely
allege—that he suffered” a work-related injury in order to invoke the statutory presumption).
       11
            33 U.S.C. § 920.
       12
         Amerada Hess Corp., 543 F.3d at 761 (internal quotation marks and citation
removed).
       13
            Id. (emphasis removed).

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second prong. Thus, the ALJ found that Gold was not entitled to either the
Section 20 presumption or compensation under the LHWCA. The BRB found
that the law and substantial evidence supported the ALJ’s alternative
finding—that Gold did not establish the second element of the prima facie
case—and affirmed the denial of benefits.
       Gold contends that he established both prongs of the prima facie case of
injury and was therefore entitled to the Section 20 presumption. The ALJ’s
determination that Gold’s testimony on both prongs of the prima facie case was
not credible, and that the credible evidence did not support his allegations, is
supported by the evidence in the record. Gold’s contention that the ALJ made
incorrect credibility determinations in its finding otherwise is unavailing: the
ALJ, as the “sole factfinder, is entitled to consider all credibility inferences and
his selection among inferences is conclusive if supported by the evidence and the
law.”14 Gold also argues that an injury occurs under the LHWCA if something
simply goes “wrong with the human frame,”15 and that the evidence he presented
to the ALJ supported a finding that he was injured under that definition. Gold
misstates the law on this point. As the Supreme Court has held, the LWHCA
requires compensation not because of the “mere existence of a physical
impairment,” but only when the injury arises “out of” and “in the course of”
employment.16 Neither the evidence in the record, as found by the ALJ, nor the
law support Gold’s argument.




       14
          Bollinger Shipyards, Inc. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of
Labor, 604 F.3d 864, 871 (5th Cir. 2010) (internal citation, quotation marks, and brackets
omitted).
       15
            See Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968).
       16
          U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., Office of Workers’ Comp. Programs, U.S.
Dep’t of Labor, 455 U.S. 608, 615 (1982) (discussing 33 U.S.C. § 902(2)).

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                                       No. 10-60686

      Gold also contends that the ALJ and the BRB unlawfully required him to
prove that an accident occurred at a particular time in order to prove the second
prong of the prima facie case.17 Neither the ALJ nor the BRB required him to
prove such an occurrence. Rather, they determined that, presuming he had
shown he suffered a harm, he had not presented sufficient evidence linking that
harm to his employment activities on the day he claimed he incurred the injury.
The BRB properly concluded that the ALJ’s determination that Gold had not
established the second prong of the prima facie case was supported by sufficient
evidence and the law.
                                   *        *         *
      We therefore AFFIRM the decision of the Benefits Review Board.




      17
         See H.B. Zachry Co. v. Quinones, 206 F.3d 474, 481 (5th Cir. 2000) (affirming a
decision by the ALJ that the claimant had established a “prima facie case by showing that
working conditions existed that could have caused the injury”).

                                            8
