Avondale Shipyards, Inc. v. Kennel

• Decision Date: 11 October 1990
• Docket Number: No. 90-4271,90-4271
• Citation: 914 F.2d 88
• Parties: AVONDALE SHIPYARDS, INC., Petitioner, v. Charles KENNEL, and Director Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 88

914 F.2d 88

AVONDALE SHIPYARDS, INC., Petitioner, v. Charles KENNEL, and Director Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.

No. 90-4271

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 11, 1990.

Patrick J. Veters, Joseph L. Lowenthal, Jr., Jones, Walker, Waechter, Poitevent, Carrere, New Orleans, La., for appellant.

Lloyd Frischhertz, Seelig, Cosse, Frischhertz, New Orleans, for Charles Kennel.

Inez Alfonzo-Lasso, J. Michael O'Neill, Sol., U.S. Dept. of Labor, Washington, D.C., for Director.

Linda Meekins, Clerk BRB, U.S. Dept. of Labor, Washington, D.C., for other interested parties.

On Petition for Review of a Final Order of the Benefits Review Board.

Before JOHNSON, SMITH and WIENER, Circuit Judges.

PER CURIAM:

Appellant Avondale Shipyards, Inc. ("Avondale Shipyards"), seeks reversal of a Benefits Review Board decision that affirmed an administrative law judge's award of benefits to appellee Charles Kennel under the provisions of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950 (1982 & Supp. V 1987). Avondale Shipyards argues that there is no substantial evidence to support the award of compensation benefits. This Court, however, is unable to discern that the Benefits Review Board erroneously affirmed the judgment of the administrative law judge.

I. FACTS AND PROCEDURAL HISTORY

Charles Kennel ("Kennel"), an employee of Avondale Shipyards, was seriously injured in the course and scope of his employment when a pressurized sandblasting hose struck him in the forward right temple. The impact caused head lacerations and a depressed skull fracture. After the accident, Kennel has suffered apparent memory loss, deterioration of mental function and disorientation. He has consistently complained of residual pain, headaches and dizziness. In addition, Kennel alleges that he suffers from "organic brain syndrome," a condition that may result from brain infection metabolic disorders and traumatic injury.

Avondale Shipyards argues that the extent of Kennel's injuries are exaggerated and that any remaining disabilities are unrelated to the sandblasting accident. At trial before an administrative law judge, both parties offered the testimony of several expert witnesses concerning the nature of Kennel's injuries. Kennel introduced the testimony of Dr. Bob Russell, a general practitioner who examined Kennel seven times in the three years prior to trial, and Dr. C. Van Rosen, a clinical psychologist whom the Social Security Administration selected to examine Kennel. Dr. Russell, noting Kennel's persistent complaints, testified he believed Kennel suffered from serious dizziness and headaches that precluded Kennel's return to gainful employment. Dr. Van Rosen testified that Kennel suffered from organic brain syndrome. More significantly, Dr. Van Rosen testified that Kennel had a poor memory and would not be able to compete successfully in the job market.

Avondale Shipyards introduced the testimony of Dr. Richard Coulon, a board certified neurosurgeon, and Dr. David Mielke, a neuropsychiatrist at Tulane University School of Medicine. Dr. Coulon testified that Kennel suffered from organic brain syndrome, but concluded that this condition was unrelated to the sandblasting accident. Interestingly, Dr. Coulon offered no alternative cause for the organic brain syndrome, protesting that he was unqualified to make such a diagnosis. Dr. Coulon agreed that Kennel's headaches and dizziness "may well relate to the ... skull fracture, inasmuch as even a minor head injury can cause problems of this type." Dr. Mielke, in contrast with Dr. Coulon, testified that Kennel did not suffer from organic brain syndrome. Dr. Mielke offered little significant comment on Kennel's problems with dizziness and headaches.

Weighing the mass of conflicting expert testimony proved a difficult task. Ultimately, the administrative law judge rejected Kennel's allegations of organic brain syndrome, commenting that he was not persuaded by the testimony of Kennel's expert witnesses on this particular condition. The administrative law judge, however, determined that Kennel's subjective complaints of dizziness and headaches supported a finding of disability. Concluding that these conditions were caused by the skull fracture, the administrative law judge ruled that Kennel's injuries were compensable. The Benefits Review Board affirmed this conclusion.

II. DISCUSSION

The Longshore and Harbor Workers' Compensation Act permits an aggrieved party to seek review of an order of the Benefits Review Board in the appropriate circuit court. 33 U.S.C. Sec. 921(c) (1982). However, the standard of review of such orders is somewhat narrow. "Our review of BRB decisions is limited to considering errors of law, and making certain that the BRB adhered to its statutory standard of review of factual determinations, that is, whether the ALJ's findings of fact are supported by substantial evidence and consistent with the law." Miller v. Central Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. Unit A 1982).

In the present case, there is substantial evidence to support the award of compensation benefits. Although Avondale Shipyards presented persuasive testimony that rebutted the usual presumption of causation between Kennel's skull fracture and the nature of his continuing debilitations, ¹ this testimony does not necessitate a decision in its favor. If an employer successfully rebuts the presumption that the employee's claim is compensable, the factfinder (the administrative law judge) must then weigh all of the evidence and resolve the factual disputes on the basis of this evidence. "In performing...