                                                                              FILED
                             NOT FOR PUBLICATION                               FEB 19 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


ITT CORP., Employer; INSURANCE CO.               No. 11-70331
OF THE STATE OF PENNSYLVANIA,
Carrier,                                         BRB No. 02-175963

              Petitioners,
                                                 MEMORANDUM*
  v.

WALTER A. WEST; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,

              Respondents.


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

                             Submitted February 14, 2013**
                                 Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District
Judge.***

      ITT Corp. petitions for review of the Benefits Review Board’s order

affirming the decision of the administrative law judge (ALJ) to grant Walter

West’s claim for disability and medical benefits under the Defense Base Act, 42

U.S.C. § 1651 et seq.

      The ALJ properly found that West made a prima facie showing that he

suffered a work-related injury and was therefore entitled to the statutory

presumption of eligibility. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651

(9th Cir. 2010). For purposes of the prima facie analysis, the ALJ made a

reasonable determination that West’s August 2008 back injury was the natural

progression of his March 2008 leg injury and the lumbar surgery that it required.

See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 457 (9th Cir. 1954).

      ITT makes two attempts to rebut the statutory presumption. First, ITT

argues that the light packing activity in which West engaged in August 2008

constituted an intervening cause that severed the causal connection to his work-

related injury. However, the ALJ properly determined that, because it was not




        ***
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

                                          2
negligent for West to engage in light packing, any worsening of West’s condition

that followed was a “natural or unavoidable” result of the primary injury. See id.

      Second, ITT argues that it satisfied its rebuttal burden by showing that

West’s leg injury was actually the result of a preexisting back condition. The ALJ

likely erred in discounting the credibility of Dr. Richmond at the rebuttal stage

instead of determining whether a reasonable factfinder could have credited his

opinion. See Haw. Stevedores, 608 F.3d at 651. However, the ALJ went on to

conclude in the alternative, based on the record as a whole and ignoring the

statutory presumption, that West had established a compensable work-related

injury. At this step of the analysis, the ALJ was permitted to discount Dr.

Richmond’s credibility. He also properly relied on Dr. van Dam’s opinion and

noted the concession of Dr. Dodge, ITT’s own expert, that some percentage of

West’s injury was attributable to his work for ITT. Because we find no error in

this alternative conclusion, any error the ALJ made with respect to Dr. Richmond’s

opinion at the rebuttal stage was harmless. See id. at 651-52.

      PETITION FOR REVIEW DENIED.




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