                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                            FEB 17 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
SSA TERMINALS, LLC and                           No. 13-74135
HOMEPORT INSURANCE COMPANY,
                                                 BRB No. 13-0088
              Petitioners,

 v.                                              MEMORANDUM*

ROBERT AMEZCUA; et al.,

              Respondents.


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

                      Argued and Submitted February 3, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

      SSA Terminals, LLC (“SSA”) appeals the decision of the U.S. Department

of Labor’s Benefits Review Board (“the Board”) affirming its liability under the

“last responsible employer” rule of the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901–951. We have jurisdiction



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 33 U.S.C. § 921(c), and we affirm. “The BRB is required to accept the

ALJ’s findings unless they are contrary to law, irrational, or unsupported by

substantial evidence. We review the Board’s decisions for errors of law and

adherence to the substantial evidence standard.” Metro. Stevedore Co. v. Crescent

Wharf & Warehouse Co., 339 F.3d 1102, 1105 (9th Cir. 2003) (citations omitted).

      SSA argues that claimant Robert Amezcua’s injury occurred on January 9,

2009, while he was employed by Yusen Terminals, and not on January 22, 2009,

when he was employed by SSA. It challenges the Board’s affirmance of the ALJ’s

findings (1) that cumulative trauma aggravated Amezcua’s underlying disability

and (2) that some of the opinions of an expert, non-treating physician were due

greater weight than those of the treating physician. It also contends that substantial

evidence in the record does not support the decision of the ALJ or the Board.

1.    We have held that an employer may be liable for an injured worker’s

disability if the claimant’s work for that employer “aggravated, accelerated or

combined with [the] claimant’s prior injury” to result in that disability. Keller

Found./Case Found. v. Tracy, 696 F.3d 835, 838 (9th Cir. 2012) (citations

omitted). That rule applies even if “the worker did not incur the greater part of his

injury with that particular employer.” Port of Portland v. Dir., Office of Workers’

Comp. Programs, 932 F.2d 836, 839–40 (9th Cir. 1991) (citation omitted).

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Although Amezcua tore his anterior cruciate ligament (ACL) on the job on January

9, 2009, he returned to work on January 12, 13, 14, 16, 17, 18, 19, 20 and 22. He

experienced significant pain during those shifts, in addition to limited mobility,

resulting in temporary total disability due to his “extreme and unbearable” knee

pain. In response to inquiries from counsel for the parties, Amezcua’s first treating

physician, Dr. Delman, opined that absent a second trauma, Amezcua’s post-injury

work did not aggravate his injury. Dr. Sisto, a consulting physician who examined

Amezcua in-person on several occasions, offered a conflicting opinion, advising

that all post-injury weight-bearing activity aggravated Amezcua’s ACL injury and

that that aggravation permanently worsened Amezcua’s disability. The ALJ

offered a thorough analysis of the record and his reasons for crediting Dr. Sisto’s

opinion over Dr. Delman’s opinion. Those factual determinations are supported by

substantial evidence in the record as a whole, and the ALJ did not err in

determining that Amezcua’s final shift with SSA permanently worsened his

underlying disability.

2.    The ALJ presented a thorough analysis of why he assigned greater weight to

Dr. Sisto’s opinion, and not Dr. Delman’s opinion, regarding the aggravation of

Amezcua’s initial injury. In particular, that analysis focused on each doctor’s

evaluation methods, prior testimony in similar workers’ compensation cases,

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examination history of the claimant, and professional qualifications. In light of

those considerations and the record evidence as a whole, substantial evidence

supported the ALJ’s determination to assign greater weight to Dr. Sisto’s

testimony regarding aggravation of Amezcua’s underlying disability.

3.    In light of the evidence in the record as a whole and our determinations

above, we conclude that substantial evidence supports the ALJ’s decision and

order, and the decision and order of the Board.

      AFFIRMED.




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