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

                                                 FILED
                                                                            June 25, 2009

                                     No. 08-60751                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MONROE TURNER

                                                   Petitioner
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; NATIONAL MAINTENANCE & REPAIR;
SIGNAL MUTUAL INDEMNITY ASSOCIATION LTD

                                                   Respondents




                        Petition for Review of an Order of the
                                Benefits Review Board
                                   BRB No. 07-0873


Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner Monroe Turner (“Turner”) appeals the decision of the Benefits
Review Board (“BRB”), affirming an Administrative Law Judge’s (“ALJ”)
determination that he is ineligible for benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. For the following
reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-60751

             I. FACTUAL AND PROCEDURAL BACKGROUND
       On December 28, 2001, Turner fell from a ladder while working as a
tugboat welder and suffered a laceration to his forehead and a broken nose.
Weeks later, he stopped working because of difficulty breathing, a burning
sensation in his nose, and headaches. An ear, nose and throat specialist and a
neurologist treated Turner for the nose injury and headaches, respectively. As
of May 3, 2002, they determined that Turner had reached maximum medical
improvement, released him from their care and approved his return to work.
However, Turner did not resume his employment as a welder because of alleged
back pain that he first complained about nearly three months after the fall.
National Maintenance and Repair, Turner’s employer, paid Turner temporary
total disability benefits from January 22, 2002, through May 3, 2002, and
covered some of his medical expenses, but it refused to authorize treatment for
Turner’s alleged back injury. On April 4, 2002, without authorization, Turner
began to receive treatment for back pain from another doctor, who his attorney
had recommended.
        Turner then filed a claim for compensation under the LHWCA. The ALJ
found the employer liable for all necessary treatment for Turner’s broken nose
and headaches; however, the ALJ denied benefits for Turner’s claim of a related
back injury.1 The ALJ found Turner’s testimony “riddled with contradictions,
inconsistencies, inexplicable denials, and falsehoods,” particularly in light of the
three-month lapse between the fall and his report of back pain,2 his admissions


       1
        The ALJ also denied benefits for an alleged aggravation of Turner’s pre-existing Post-
Traumatic Stress Disorder, which the BRB affirmed as unchallenged on appeal. Turner
similarly does not raise this issue to this court, appealing only the denial of benefits for his
back injury.
       2
         Turner explains the three-month delay by stating that he began experiencing the back
pain only after he stopped taking prescribed pain medication in preparation for a functional
capacity evaluation. The ALJ heard this testimony and implicitly discounted it as part of his
credibility determination.

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of lies to receive related disability benefits from the Social Security
Administration and Veterans Administration, surveillance video of Turner
lifting heavy baskets of shrimp while working at a seafood market after the fall,
and psychological testing that diagnosed him as a malingerer. The ALJ also
gave no credit to the opinions of Turner’s medical experts because they were
either similarly unconvincing or based on Turner’s false reporting of symptoms
and physical limitations. Accordingly, the ALJ found no credible evidence to
support Turner’s claim that he suffered a back injury stemming from his fall.
Therefore, the ALJ denied benefits for this claim. The BRB affirmed, declining
to question the ALJ’s factual findings or credibility determinations. Turner
appeals to this court. We have jurisdiction to review an order of the BRB
pursuant to 33 U.S.C. § 921(c).
                         II. STANDARD OF REVIEW
      The LHWCA requires the BRB to accept the ALJ’s findings of fact as
conclusive when “supported by substantial evidence in the record considered as
a whole.” 33 U.S.C. § 921(b)(3). “The BRB may not substitute its judgment for
that of the ALJ or engage in a de novo review of the evidence.” Gulf Best Elec.,
Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004). In turn, “[t]his court . . . reviews
decisions by the BRB to determine whether it has adhered to its proper scope of
review . . . .” Id. Accordingly, we must affirm so long as the ALJ followed the
correct legal standard and supported its factual findings with substantial
evidence. See id.
                                III. DISCUSSION
      Turner challenges the ALJ’s decision, asserting that he presented
sufficient evidence—by simply alleging that he suffered a back injury—to trigger
the LHWCA § 20(a) presumption of a compensable work-related injury. Section
20(a) provides that “it shall be presumed, in the absence of substantial evidence
to the contrary . . . [t]hat the claim comes within the provisions of this chapter.”

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33 U.S.C. § 920(a). To invoke the presumption, a claimant must prove that
(1) he suffered an injury and (2) an accident or conditions at work could have
caused the injury. Conoco, Inc. v. Dir., Office of Worker’s Comp. Programs, 194
F.3d 684, 687 (5th Cir. 1999). Proof of both required elements triggers the
presumption of a work-related injury compensable under the LHWCA. Amerada
Hess Corp. v. Dir., Office of Worker’s Comp. Programs, 543 F.3d 755, 761 (5th
Cir. 2008). If the employer, in turn, presents sufficient evidence that the injury
was not work related, the presumption drops out of the case and leaves the ALJ
to determine causation based on weighing all of the evidence. Id. Essentially,
§ 20(a) provides a presumption of a causal connection between the claimant’s
injury and his or her employment, not a presumption of a compensable injury
itself. To invoke the presumption, Turner bore the burden to prove—not merely
allege—that he suffered a back injury and that the back injury could have
resulted from his fall at work. See id.
      Here, the ALJ found that Turner failed to establish that he suffered a back
injury stemming from the fall, based largely on discrediting the testimony of
Turner and his medical experts. As the fact finder, the ALJ is entitled to make
credibility determinations and accept or reject any part of an expert’s testimony.
Mendoza v. Marine Pers. Co., 46 F.3d 498, 500-01 (5th Cir. 1995). The ALJ
determined that Turner’s testimony and the opinions of Turner’s medical experts
were not credible. Without credible evidence to support Turner’s allegation of
a back injury, the ALJ properly exercised his discretion to conclude that Turner
failed to prove the predicate injury necessary to invoke the § 20(a) presumption.
Accordingly, the ALJ found it unnecessary to determine the sufficiency of the
employer’s contrary evidence to rebut Turner’s claim of a work-related injury.
In sum, the ALJ followed the correct legal standard in refusing to apply the
§ 20(a) presumption given that Turner did not provide sufficient evidence to
prove— not merely allege—that he suffered a back injury.

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      Even assuming that the ALJ should have applied the presumption of
causation in this case, the employer presented substantial evidence to rebut the
presumption and support the ALJ’s determination based on a weighing of all of
the evidence. “‘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.’” Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426,
430 (5th Cir. 2009) (quoting Dir., Office of Worker’s Comp. Programs v. Ingalls
Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997)). Here, the ALJ addressed
all of the relevant testimony and medical evidence in an exhaustively detailed
seventy-five page Decision and Order and provided cogent reasoning for his
determination that Turner did not prove he suffered a back injury. A reasonable
person could accept the ALJ’s fact finding based on the surveillance video alone,
which showed Turner’s ability to perform heavy lifting while working at a
seafood market after his fall. Additionally, Turner’s admissions of lies and his
diagnosis as a malingerer presents far more than a scintilla of evidence to
support the ALJ’s conclusion that Turner did not suffer a back injury from his
fall at work.
                              IV. CONCLUSION
      We find no basis for holding that the ALJ failed to follow the correct legal
standard or erred in his factual findings. Substantial evidence supported the
ALJ’s conclusion that Turner did not suffer a back injury, even if the § 20(a)
presumption applied. However, because Turner failed to prove that he suffered
a back injury, he was not entitled to a presumption of causation between the
injury and conditions at work. In essence, Turner simply takes issue with the
ALJ’s factual findings and credibility determinations, which we decline to
disturb given the record in this case. Therefore, we affirm the BRB’s decision
denying Turner benefits under the LHWCA.
      AFFIRMED.


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