UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY STEVENS,
Petitioner,

v.

BATH IRON WORKS CORPORATION;
                                                                      No. 96-2599
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(BRB-95-1950)

Argued: March 6, 1998

Decided: July 27, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Edward Paul Gibson, RIESEN LAW FIRM, L.L.P.,
North Charleston, South Carolina, for Petitioner. Richard Fenn
van Antwerp, ROBINSON, KRIGER & MCCALLUM, Portland,
Maine, for Respondents. ON BRIEF: Allison A. Stover, RIESEN
LAW FIRM, L.L.P., North Charleston, South Carolina, for Petitioner.
Thomas R. Kelly, Daniel Nuzzi, ROBINSON, KRIGER & MCCAL-
LUM, Portland, Maine, for Respondent Bath Iron Works.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jeffrey Stevens, proceeding under the Longshore and Harbor
Workers' Compensation Act, seeks to compel Bath Iron Works to
bear the cost of back surgery and temporary total disability benefits
relating to the surgery. Although Stevens had a prior history of back
problems, he aggravated his condition in 1989 while working for Bath
Iron Works. The ALJ denied benefits, finding that Stevens' need for
back surgery is not related to his 1989 work-related injury, and the
Benefits Review Board affirmed by operation of Public Law 104-134.

On appeal, Stevens contends (1) that the ALJ's determination that
his need for surgery is unrelated to his prior workplace injury is not
supported by substantial evidence, and (2) that the ALJ erred in not
holding that a 1992 compensation order voluntarily entered into by
Bath Iron Works to obtain Special Fund relief precludes Bath Iron
Works from now arguing that it is not liable for the requested bene-
fits. For the reasons given below, we affirm.

I

Stevens was first employed at Bath Iron Works located in Bath,
Maine, in 1978, working as a tinsmith. In March 1989, he sustained
a lower back injury at work when he attempted to pick up a box of
bolts weighing between 100 and 175 pounds. As a result of this
injury, Stevens missed more than four months of work and returned
to work on limited duty. Shortly thereafter, in January 1991, he
moved to South Carolina where he found work in a grocery store.

Even before his work-related injury, Stevens had had a lengthy his-
tory of lower back problems. In addition to a congenital abnormality
in his spine, Stevens was involved in an automobile accident in
December 1973, for which he received treatment to his back for three

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months. In 1979, his back condition flared up again, requiring contin-
uing treatment until 1981. In January 1988, he sustained another back
injury in an automobile accident that caused him to remain out of
work for eight months. He settled a lawsuit based on that accident for
$82,500.

Stevens currently suffers from a symptomatic pseudarthrosis of the
lower lumbar vertebrae in the sacrum and degenerative lumbar disc
disease. Essentially, Stevens has an extra spinal segment in his lower
back and a degenerative condition in the tissues between his lower
lumbar vertebrae. His treating physician, Dr. Donald Johnson, a
board-certified orthopedic surgeon, has recommended that Stevens
undergo surgery to remove the discs at the lowest two lumbar levels
with a fusion done across the vertebrae above and below those discs.
It is for this operation that Stevens seeks compensation from Bath
Iron Works on the grounds that his current condition is related to his
1989 work-related injury.

Relying on the opinions of Dr. Johnson and Dr. John W. Wicken-
den, the only doctor who had seen Stevens both before and after his
work-related injury, the ALJ concluded that Stevens' degenerative
lumbar disc disease and the symptomatic congenital pseudarthrosis of
the lowest lumbar vertebrae in the sacrum were present in 1988 and
were not affected by the lifting incident at Bath Iron Works in 1989.
The ALJ quoted approvingly from Dr. Wickenden's opinion as fol-
lows:

          The lifting incident which occurred at Bath Iron Works on
          March 2, 1989 is of no orthopedic/medical consequence to
          the history of this man's spinal pathology. That injury
          caused a transient exacerbation of symptoms which had
          been consistently present for at least fourteen months prior
          to that time, and symptoms which had occurred intermit-
          tently since 1973. Images taken prior to March, 1989 are
          essentially the same as images which have been taken in the
          interval since that time. . . . The basis for his surgery is con-
          genital and degenerative disease which first showed itself in
          1973 and became more chronically persistent after January
          1988. I see no meaningful way in which any current, or

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          hypothetical future, physical restrictions can be attributed to
          a lifting incident at Bath Iron Works during March, 1989.

Accordingly, the ALJ denied any further benefits. From the affir-
mance of the Benefits Review Board by operation of law, this appeal
followed.

II

Under the Longshore Act, an employer is liable to his employees
for "such medical, surgical, and other attendance or treatment . . . for
such period as the nature of the injury or the process of recovery may
require." 33 U.S.C. §§ 904, 907. Furthermore, it is presumed that a
claim for compensation under the Longshore Act comes within the
scope of the Act's coverage "in the absence of substantial evidence
to the contrary." Id. at 920(a). An employer, however, must provide
benefits for only those injuries that "aris[e] out of and in the course
of employment." Id. at § 902(2).

In this case, the ALJ found that the need for the proposed surgery
on Stevens' back was unrelated to Stevens' 1989 work injury and that
therefore Bath Iron Works was not required by the Longshore Act to
pay the costs of surgery. We must uphold this decision if it is "sup-
ported by substantial evidence in the record considered as a whole."
33 U.S.C. § 921(b)(3); see also Newport News Shipbuilding and Dry
Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). Substantial evi-
dence is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Moreover, "the ALJ's findings may not be disre-
garded on the basis that other inferences might have been more rea-
sonable. Deference must be given the fact-finder's inferences and
credibility assessments, and we have emphasized[that] the scope of
review of ALJ findings is limited." Newport News Shipbuilding, 841
F.2d at 543 (citation omitted).

The ALJ's finding that Stevens' lower back problems were "not
related in any way to the trivial lifting incident at Bath Iron Works
on March 2, 1989," is supported by the medical evidence provided by
both Dr. John Wickenden, a board-certified orthopedic surgeon who

                     4
treated Stevens from November 1988 until April 1990 and who
reviewed Stevens' medical records from 1979 to 1994, and by Dr.
Johnson, Stevens' current treating doctor. According to Dr. Wicken-
den, Stevens' lower back problems started in 1973, following his
involvement in the first of two automobile accidents, and continued
intermittently over the next two decades. In Dr. Wickenden's opinion,
the "real cause" of Stevens' back problems"was some combination
of congenital anomalies and degenerative changes in his low back."
Dr. Wickenden stated that x-rays taken of Stevens' lower back as
early as 1979 revealed "essentially the same pathology" as imaging
studies done as recently as 1993. Based on these findings, Dr. Wick-
enden concluded,

          The basis for [Stevens'] surgery is congenital and degenera-
          tive disease which first showed itself in 1973 and became
          more chronically persistent after January 1988. I see no
          meaningful way in which any current, or hypothetical
          future, physical restrictions can be attributed to a lifting inci-
          dent at Bath Iron Works during March 1989.

Dr. Johnson seconded Dr. Wickenden's finding that Stevens' lower
back problems predated Stevens' March 1989 injury by well over a
year and were of "longstanding" and "permanent" duration.

Stevens presented no medical evidence at the hearing before the
ALJ that contradicted the opinions offered by Dr. Wickenden and Dr.
Johnson. The only evidence that Stevens presented that even remotely
supported his claim that his current back condition is related to his
March 1989 injury was his own testimony which the ALJ discredited
in light of Stevens' admitted failure to disclose his complete medical
history to three of his treating physicians. We cannot say that this
credibility determination was in error. See Newport News
Shipbuilding, 841 F.2d at 543.

Accordingly, we find that the ALJ's decision to deny the requested
benefits is supported by substantial evidence in the record considered
as a whole.

III

Stevens objects to the ALJ's having decided the causation issue in
this proceeding because the issue was not properly before the ALJ,

                     5
having been decided when Stevens was first provided benefits for his
1989 injury. He argues that because 33 U.S.C. § 907(a) requires the
employer to pay medical benefits indefinitely, the only issue was
whether Bath Iron Works "is responsible for payment for the surgery
prescribed by Dr. Johnson" and for related disability and medical
expenses.

Stevens, however, misunderstands the statutory scheme because
Bath Iron Works' continuing liability under the Longshore Act for the
costs of the proposed surgery is predicated on a finding that the sur-
gery is intended to treat an injury that arose out of and in the course
of Stevens' employment at Bath Iron Works. See 33 U.S.C. § 902(2);
see also Colburn v. General Dynamics Corp., 21 B.R.B.S. 219 (1988)
(where employee's condition is not natural or unavoidable result of
workplace injury, but is result of intervening cause, employer is
relieved of liability for disability and medical expenses). Thus, dem-
onstrating a causal connection between Stevens' current need for sur-
gery and his March 1989 workplace injury is a necessary precondition
to Bath Iron Works' liability for the surgery under the Longshore Act.

Stevens also contends that the issue of causation had already been
decided by a 1992 compensation order voluntarily entered into by
Bath Iron Works and that that order constitutes res judicata in this
case. The 1992 order provided that starting in April 1992 the Long-
shore Act's § 8(f) Special Fund would pay Stevens permanent partial
disability benefits based on the "combined result of the injury sus-
tained on March 2, 1989, superimposed on the pre-existing permanent
partial disability to the back." See 33 U.S.C. § 908(f). In addition, the
order stated that Bath Iron Works "remains liable for medical care
related to the employment injury." (Emphasis added). This provision
clearly leaves open the question of whether Stevens' current need for
surgery was caused, even in part, by the March 1989 lifting incident.
Because the order did not decide the causation issue before us, res
judicata does not apply.

For the foregoing reasons, the decision of the Benefits Review
Board is

AFFIRMED.

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