                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
                          In the                                  March 17, 2004
      United States Court of Appeals                           Charles R. Fulbruge III
                for the Fifth Circuit                                  Clerk
                    _______________

                      No. 03-60809
                    Summary Calendar
                    _______________




                COOPER/T. SMITH, INC.,
                      AND
   AMERICAN LONGSHORE MUTUAL ASSOCIATION,               LTD,

                                         Petitioners,

                         VERSUS

                    RAYMOND VELES;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
              U.S. DEPARTMENT OF LABOR,

                                         Respondents.



              _________________________

             Petition for Review of an Order of
                 the Benefits Review Board
                         m 02-0779
              _________________________
Before SMITH, DEMOSS and                                   found Veles credible with respect to the
  STEWART, Circuit Judges.                                 symptoms of his injury and relied on treating
                                                           physicians’ testimony in finding that the
JERRY E. SMITH, Circuit Judge:*                            cheater pipe accident had exacerbated an exist-
                                                           ing medical condition to the extent that Veles
                       I.                                  became unable to continue his longshore work.
   The claimant, Raymond Veles, worked as a
longshoreman for the employer, Cooper
T/ Smith, Inc. (“Cooper”). During the course                  Because the ALJ concluded that the injuries
of his work, on November 26, 1999, a “cheat-               arose from a work-related accident, that
er pipe” broke loose and collided with his                 Veles’s knee injury resulted in permanent dis-
knee, causing him to fall. Veles duly informed             ability, and that his back injury resulted in a
Cooper of his injury.                                      temporary disability, the ALJ concluded that
                                                           Veles was due appropriate benefits. The ALJ
   Somewhat later, after pain lingered in his              also decided that Veles had reached maximum
knee, Veles visited his family physician, who              medical improvement for his knee injury on
examined the resulting swollen, bruised knee               November 12, 2001, and keyed his receipt of
and recommended physical therapy. After                    benefits accordingly, including temporary total
therapy and medication failed to provide relief            disability payments from November 26, 1999,
to pain, Veles’ treating orthopedist, Bryan,               to November 11, 2001, and permanent total
gave him to an MRI, tentatively concluding he              disability compensation thereafter.        The
had torn meniscus.          An independent                 Benefits Review Board (“BRB”) affirmed.
Department of Labor physician, Butler,                     Cooper and the carrier petition for review,
concluded that the knee problems arose from                arguing that the ALJ’s findings are not
the aggravation of Veles’s pre-existing                    supported by substantial evidence.
chondromalacia, a diagnosis confirmed by
Bryan during arthroscopic surgery in                                              III.
November 2000. As a result of back                            We review decisions of the BRB for errors
problems, Veles also had back surgery in                   of law. Like the BRB, we may gainsay the
February 2002 under Gerzbein’s care.                       ALJ’s findings of fact only if they are
                                                           unsupported by substantial evidence.
                       II.                                 Especially, we must respect the ALJ’s
   Veles filed his benefits claim pursuant to the          evaluations of witness credibility, whether the
Longshore and Harbor Workers’                              witness is lay or expert. Calbeck v. Strachan
Compensation Act to secure payment from                    Shipping Co., 306 F.2d 693. We will not
respondents Cooper and the American                        interfere with the ALJ’s credibility
Longshore Mutual Association. 33 U.S.C. §                  determinations unless they are “inherently
901. The administrative law judge (“ALJ”)                  increditable or patently unreasonable.” Dir.,
                                                           OWCP v. Bethlehem Steel Corp., 620 F.2d 60
                                                           (5th Cir. 1980). We look to whether the BRB
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-       has applied the correct deferential standard of
termined that this opinion should not be published         review with respect to the ALJ’s findings of
and is not precedent except under the limited              fact, or equivalently that it has not substituted
circumstances set forth in 5TH CIR. R. 47.5.4.

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its own view for the ALJ’s. New Orleans                   both sides concerning the whole record.
(Gulfwide) Stevedores v. Turner, 661 F.2d
1031 (Former 5th Cir. Nov. 1981).                             The key testimony before the ALJ included
                                                          Department of Labor physician Butler’s
                      A.                                  testimony that the pre-existing condition of
   Respondents contend that the ALJ’s finding             chondromalacia was exacerbated by the
that Veles sustained permanently disabling                accident and that Veles’s back problems were
work-related injuries is not supported by sub-            intensified by his resulting limp; and Cooper’s
stantial evidence. Respondents dispute that               examining physician Fultz’s admission that the
Veles’s knee and back problems arose from a               pre-existing condition of chondromalacia had
work-related injury. Cooper contends that the             likely been exacerbated by the accident. See
“cheater pipe” accident resulted in a temporary           Conoco, Inc. 194 F.3d 684, 33 BRBS 187
bruise, which acted to exacerbate neither                 (CRT) (holding that employer is liable for ag-
existing chondromalacia in his knee or the                gravation of pre-existing injury). The ALJ
problems with his spine. Rather, respondents              credited the testimony of Gertzbein, who con-
assert that Veles is a malingerer and                     cluded that the back injury also flowed from
exaggerated the extent of the injury to his               the accident as a result of Veles’s resulting
knee. They fault the ALJ for preferring the               limp. The ALJ noted that Bryan believed, at
testimony of treating physicians over respon-             least as of July 11, 2001, that there was
dents’ expert witness and for crediting Veles’s           nothing he could do to improve the function of
testimony with respect to the difficulties                the knee. Importantly, the ALJ also heard
caused by his knee and back.                              Veles’s description of the accident and the
                                                          symptoms of his injury, and the ALJ found his
    In deciding whether the knee and back in-             testimony to be straightforward and credible.
juries were work-related, the ALJ properly
undertook the presumption-shifting framework                 The ALJ’s findings are supported by
described by section 20(a).1 The claimant                 substantial evidence, and the BRB acted prop-
established his prima facie case, the defense             erly in refusing to gainsay them. Though re-
rebutted, and the ALJ heard arguments from                spondents point to Fultz’s doubts that the back
                                                          injury flowed from Veles’s limp, and point to
                                                          claimant’s alleged “hypersensitivity” to pain, it
   1
      A claimant must establish a prima facie case        was within the ALJ’s purview to exercise his
that the accident occurred at the place of                judgment in evaluating witnesses’ credibility
employment and could have caused harm or pain or          and in assembling the evidence presented to
aggravated a pre-existing condition, which the em-        him. Merely because different determinations
ployer may rebut by producing substantial evidence        of credibility could have led to different
that the injury is not related to employment. See,
                                                          conclusions, does not mean that the ALJ’s fact
e.g., Gooden v. Dir., OWCP, 135 F.3d 1066, 32
BRBS 59 (CRT) (5th Cir. 1998); Conoco, Inc. v.
                                                          finding was unsupported by substantial
Dir., OWCP, 194 F.3d 684, 33 BRBS 187 (CRT)               evidence.
(5th Cir. 1999). If the employer rebuts, the burden
of persuasion shifts to the claimant to show                                    B.
causation, based on the record as a whole. See,              In assessing the point at which Veles’s dis-
e.g., Universal Maritime Corp, v. Moore, 126              ability became permanent, the ALJ analyzed
F.3d 256, 31 BRBS (CRT) (4th Cir. 1997).

                                                      3
the time when his knee injury reached                 suitable alternative work. See Turner. Veles
“maximum medical improvement.” The re-                demonstrated that he was functionally illiterate
spondents dispute the ALJ’s finding that              and unable to perform any work at the time the
maximum medical improvement had been                  record closed, and respondents presented no
reached on November 12, 2001, when                    evidence of suitable alternate employment.
treatment, including surgeries, were un-              The ALJ relied on substantial evidence in con-
dertaken thereafter.                                  cluding that Veles was totally disabled.

    Maximum medical improvement may have                 The petition for review is DENIED.
been reached, however, before the end of a
series of surgical treatments, when the later
surgeries will not improve the claimant’s abil-
ity to perform. Sketoe v. Dolphin Titan Int’l,
28 BRBS 212 (1994). Moreover, even where
a doctor’s prognosis indicates that a condition
may improve, but where t he condition has a
lasting and infinite duration, the ALJ may yet
conclude that a claimant has reached maximum
medical improvement. Brown v. Bethlehem
Steel, 19 BRBS 200 (1987). The ALJ relied
on the testimony of Veles’s treating doctors
over that of Cooper’s expert in determining
that Veles reached maximum medical
improvement with respect to his knee on No-
vember, 12, 2001. There is substantial
evidence to support the ALJ’s finding.

                       C.
   Respondents contend the ALJ erred in
awarding total disability benefits, saying that
the ALJ did not rely on substantial evidence of
Veles’s inability to return to his usual work.
The ALJ heard Gertzbein’s testimony that
Veles’s knee condition will prevent him from
returning to his former, physically demanding
job. Given the infirmity of Veles’s knee, the
ALJ relied on substantial evidence in deciding
that Veles was permanently unfit for longshore
work.

   Once a claimant establishes inability to re-
turn to his usual work, the employer may take
up the burden of showing the availability of


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