                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 23, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk

                       ____________________

                           No. 02-60975

                         Summary Calendar
                       ____________________


     FOURCHON WELDING CONTRACTORS INC; LOUISIANA WORKERS’
     COMPENSATION CORP

                     Petitioners

     v.

     DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
     DEPARTMENT OF LABOR

                     Respondent

_________________________________________________________________

           Petition for Review from an Administrative
              Decision of the Benefits Review Board
                         BRB No. 02-0394
_________________________________________________________________

Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Petitioners Fourchon Welding Contractors, Inc. (“Fourchon

Welding”) and Louisiana Workers’ Compensation Corporation

(“LWCC”) seek review of an administrative decision of the U.S.


     *
        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that this opinion should not be published and is not precedent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.
Department of Labor Benefits Review Board (“BRB”).    On appeal,

Fourchon Welding and LWCC contend that there is no substantial

evidence to support: (1) the administrative law judge (“ALJ”)’s

finding that claimant Aujest J. Cheramie suffered a residual

disability as a result of his accident; and (2) the award of

permanent and total disability benefits.    For these reasons,

Fourchon Welding and LWCC urge reversal of the BRB’s affirmance

of the ALJ’s decision and order.1    Based on the facts as

presented in the trial record, we affirm the BRB’s order and deny

the petition for review.

     In May 1997, Fourchon Welding hired Cheramie as a temporary

inventory clerk.   On August 22, 1997, Cheramie sustained a lumbar

strain while lifting an angle iron.    He returned to work for

approximately one week after the accident, but he subsequently

sought medical treatment.   Thereafter, Cheramie brought suit

against Fourchon Welding, alleging his entitlement to relief

under the Longshore and Harbor Workers’ Compensation Act (“Act”),

33 U.S.C. § 901 (2000).

     After conducting a trial, the ALJ found that Cheramie was

permanently and totally disabled.    Fourchon Welding then appealed

the ALJ’s decision to the BRB.   The BRB held that the ALJ erred

in finding that Cheramie had established a prima facie case of

     1
        Respondent, Director, Office of Worker’s Compensation
Programs, United States Department of Labor, opted not to
participate in the appeal of this case and hence, did not file a
brief in response to the petition for review.

                                 2
total disability without first finding that he had a residual

work-related medical impairment.       However, the BRB did find that

Cheramie could invoke the 33 U.S.C. § 920(a) (“section 20(a)”)

presumption that his continuing back condition was causally

related to his employment.   The BRB vacated the ALJ’s decision

and remanded the case for the ALJ to determine whether the

employer had provided sufficient evidence to rebut the section

20(a) presumption, and if so, to resolve the issue of causation

on the basis of the entire record.

     On remand, the ALJ determined that Fourchon Welding had

produced substantial evidence to rebut the section 20(a)

presumption.   The ALJ nevertheless accepted Cheramie’s testimony

that his continuing back pain prevented him from obtaining

meaningful work.   This testimony was corroborated by documentary

evidence depicting Cheramie’s post-injury condition.

Accordingly, the ALJ awarded Cheramie continuing permanent total

disability benefits.

     Upon reviewing the ALJ’s decision and order on remand, the

BRB affirmed the ALJ’s findings of fact and conclusions of law.

The BRB determined that Fourchon Welding had not demonstrated

that the ALJ’s decision to credit Cheramie’s testimony was

“inherently incredible or patently incredible.”      According to the

BRB, affirmance of the ALJ’s award of total disability benefits

was appropriate because Cheramie made out his prima facie case of



                                   3
total disability and Fourchon Welding had not established the

availability of suitable alternative employment.

       In their petition for review, Fourchon Welding and LWCC

assert that the ALJ’s decision: (1) is not supported by medical

evidence; (2) completely discounts the physician’s release of

Cheramie without restriction; and (3) relies entirely on

Cheramie’s allegedly untrustworthy testimony.    This court is

bound to uphold the ALJ’s decision provided that it is supported

by substantial evidence and is in accordance with the law.       E.g.,

Ledet v. Phillips Petroleum Co., 163 F.3d 901, 904 (5th Cir.

1998) (footnote omitted).

       Contrary to Fourchon Welding and LWCC’s assertions, there is

substantial evidence, based on testimony from several medical

specialists, indicating that Cheramie sustained a residual

disability as a direct consequence of the August 1997 accident.

This evidence supports the ALJ’s finding of permanent disability.

See id. at 905 (“An employee is considered permanently disabled

when he has any residual disability following the date of maximum

medical improvement.”).    Thus, the ALJ did not err in finding

that Cheramie suffered a permanent disability.

       Moreover, there is also substantial evidence supporting the

ALJ’s finding that Cheramie “can no longer return to his former

longshore job due to his job-related injury,” thereby permitting

him to establish a prima facie case of total disability under the

Act.    New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,

                                  4
1038 (5th Cir. Unit A Nov. 1981), cited with approval in Ledet,

163 F.3d at 905 n.11.2    Further, Fourchon Welding and LWCC do not

attempt to demonstrate that they offered Cheramie suitable

alternative employment, an effort which would rebut his prima

facie case of total disability.        See, e.g., id.   Hence, we

conclude that the ALJ did not err in finding that Cheramie

suffered a total disability.

     Because there is substantial evidence in the record

supporting the ALJ’s finding that Cheramie suffered a residual

disability as a result of his on-the-job accident, as well as the

ALJ’s award of permanent and total disability benefits, we find

no reversible error.     For the above reasons, the order of the BRB

is AFFIRMED, and the petition for review is DENIED.




     2
        Because the Turner standard and the Supreme Court’s
standard for disability enunciated in Metropolitan Stevedore Co.
v. Rambo, 521 U.S. 121, 127 (1997) (“Disability [under the Act]
is a measure of earning capacity lost as a result of a work-
related injury.... [T]he statute makes it clear that disability
is the product of injury and opportunities in the job market.”),
compliment one another, a prima facie showing of total disability
under Turner should also satisfy the less demanding Rambo
standard. Fourchon Welding and LWCC concede as much.

                                   5
