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

                                                                            FILED
                                                                          March 12, 2008

                                     No. 07-60504                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SCOTT DUCKWORTH

                                                  Petitioner
v.

CSX WORLD CRANE; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR

                                                  Respondents



                         On Petition for Review of an Order
                           of the Benefits Review Board
                                  BRB No. 06-0824


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       An Administrative Law Judge (ALJ) denied Scott Duckworth’s claim for
benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. § 901 et seq. The Benefits Review Board (BRB) affirmed. Duckworth
contends the BRB erred: in concluding Duckworth had not established a prima




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60504

facie case of on-the-job injury; and, along that line, upholding the ALJ’s
credibility determinations.
      Duckworth’s LHWCA claim was based on an injury allegedly sustained on
4 March 2002, during his crane-electrician employment for CSX World Crane
Service; he alleged injury to his back while lifting a transformer. Although other
employees were nearby at the time of the alleged injury, the incident was not
witnessed. Based on the testimony by Duckworth and co-workers, as well as the
medical evidence, the ALJ determined Duckworth had not established a prima
facie case for compensation.
      Under the LHWCA, the BRB is required to accept the ALJ’s findings of
fact and conclusions of law supported by substantial evidence and in accordance
with the law. 33 U.S.C. § 921(b)(3). The BRB is not to conduct a de novo review,
and it may not consider new evidence. 20 C.F.R. § 802.301. BRB decisions are
reviewed “to determine whether it has adhered to its proper scope of review”.
Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004) (citing H.B.
Zachry Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000)).
      The ALJ found, based largely on discrediting Duckworth’s testimony, that
he failed to establish the alleged work incident occurred. Therefore, the ALJ
concluded Duckworth failed to establish a prima facie case for coverage, which
requires proof, by a preponderance of the evidence, that, inter alia, an injury was
suffered. Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir.
2003) (citation omitted).
      In this regard, the ALJ “is entitled to consider all credibility inferences”.
Mendoza v. Marine Pers. Co., Inc., 46 F.3d 498, 500 (5th Cir. 1995) (citation and
internal quotation marks omitted). As the fact-finder, the ALJ determines the
weight to be accorded evidence and makes all credibility determinations. James
J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 430 (5th Cir. 2000)
(citation omitted). In concluding Duckworth had not established the existence

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of the alleged incident, the ALJ found his testimony was “equivocal, ambiguous,
incredible, and unpersuasive”. This credibility determination was supported by
the testimony of four of Duckworth’s co-workers. For example, one testified
about Duckworth’s repeated comments that he planned to fake a work-injury.
      Duckworth contests the ALJ’s conclusion that Duckworth’s testimony may
not stand in the light of the objective medical evidence. The ALJ, however,
addressed the medical evidence in great detail in its “Decision and Order” and
concluded it did not establish an injury occurred on 4 March 2002.
      We find no basis for holding the ALJ’s decision was neither supported by
substantial evidence nor in accordance with the law. Therefore, the BRB
correctly affirmed that decision.
      DENIED.




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