                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            DEC 4 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


MICHELLE HORNER, as beneficiary of               No.   14-73251
the Estate of Gary Horner; MICHELLE
HORNER, as personal representative of            BRB No. 2013-0555
the Estate of Gary Horner,

              Petitioners,                       MEMORANDUM*

 v.

CASCADE GENERAL; VIGOR
INDUSTRIAL, LLC; AMERICAN
HOME ASSURANCE INSURANCE;
CHARTIS CLAIMS, INC.; SIGNAL
MUTUAL INDEMNITY
ASSOCIATION; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAM,

              Respondents.


                     On Petition for Review of an Order of the
                              Benefits Review Board

                        Argued and Submitted June 8, 2017
                                Portland, Oregon

Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Petitioner Michelle Horner (Horner), as the personal representative of the

estate of Gary Horner (Gary),1 petitions for review of the opinion of the Benefits

Review Board (Board) affirming the decision of an administrative law judge (ALJ)

setting compensation under the Longshore and Harbor Workers’ Compensation

Act (LHWCA) based on aggravation of Gary’s knee condition due to work-related

activities. Horner contends that an earlier injury onset date applied based on

complications stemming from Gary’s femur fracture and rod implant that

ultimately worsened his knee condition. According to Horner, the ALJ failed to

properly weigh medical evidence reflecting that Gary’s knee condition was

aggravated at an earlier date due to his femur fracture.

      Substantial evidence supports the injury onset date determination made by

the ALJ and affirmed by the Board based on aggravation of Gary’s knee condition

when he returned to his work activities. See Gen. Constr. Co. v. Castro, 401 F.3d

963, 965 (9th Cir. 2005) (“Under the LHWCA, we review [the Board’s] decisions

for errors of law and for adherence to the substantial evidence standard. The

[Board] must accept the ALJ’s factual findings if they are supported by substantial

evidence. . . .”) (citations and internal quotation marks omitted). The ALJ



      1
        Petitioners have not challenged our prior order substituting Gary’s
daughter as the personal representative of his estate.
                                           2
sufficiently weighed the respective medical opinions of Dr. Jon C. Vessely and Dr.

Robert Wells in determining that Gary’s “increase in knee pain was nine months

after the femur fracture but only six weeks after resuming full duty at work” and

“[t]he change that coincided in time with the increased pain was [Gary’s] return to

full-duty work, not the femur fracture and repair.” Additionally, the ALJ

accurately observed that “Dr. Vessely declined to opine on whether [Gary’s] work

activities after April 2008 aggravated the pathology of [Gary’s] right knee because

he felt necessary testing was not done.” In sum, the ALJ considered the medical

evidence relevant to Gary’s knee condition and his determination was supported by

substantial evidence. See id.

      PETITION DENIED.




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