Avondale Shipyards, Inc. v. Kennel, No. 90-4271

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtInez Alfonzo-Lasso; Before JOHNSON, SMITH and WIENER; PER CURIAM
Citation914 F.2d 88
Decision Date11 October 1990
Docket NumberNo. 90-4271
PartiesAVONDALE SHIPYARDS, INC., Petitioner, v. Charles KENNEL, and Director Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents. Summary Calendar.

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.

Page 89

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,

Page 90

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...

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110 practice notes
  • Greenwich Collieries v. Director, Office of Workers' Compensation Programs, No. 92-3270
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 23, 1993
    ...statute eases the ordinary preponderance of the evidence standard applicable in most civil suits. Id. Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90-91 (5th Cir.1990); see also Fidelity & Casualty Co. v. Burris, 59 F.2d 1042, 1044 (D.C.Cir.1932) ("Where there is doubt, it should be res......
  • Alberts v. HCA, Inc., Civil No. 12–564 (RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 11, 2013
    ...any part of an expert's testimony,’ ” or “ ‘may reject it completely.’ ” ( quoting [496 B.R. 17]Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 91 (5th Cir.1990))). Defending himself from another “you disagreed with both experts” type argument on reconsideration, Judge Teel stated that a t......
  • Davis v. Int'l Bank of Commerce (In re Diamond Beach VP, LP), Case No. 1:14–cv–00046
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 29, 2016
    ...an administrative judge “can accept any part of an expert's testimony; he may reject it completely.” Avondale Shipyards, Inc. v. Kennel , 914 F.2d 88, 91 (5th Cir.1990). “Where the testimony of medical experts is at issue, the ALJ [Administrative Law Judge] is entitled to accept any part of......
  • O'Kelley v. Department of Army/Naf, BRB 99-0810
    • United States
    • Court of Appeals of Longshore Complaints
    • May 2, 2000
    ...expert simply because the expert is more highly trained or is claimant's treating physician. See generally Avondale Shipyards v. Kennel, 914 F.2d 88, 24 BRBS 46 (CRT)(5th Cir. 1990). Rather, the administrative law judge, as factfinder, must independently analyze and discuss the medical evid......
  • Request a trial to view additional results
110 cases
  • Greenwich Collieries v. Director, Office of Workers' Compensation Programs, No. 92-3270
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 23, 1993
    ...statute eases the ordinary preponderance of the evidence standard applicable in most civil suits. Id. Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90-91 (5th Cir.1990); see also Fidelity & Casualty Co. v. Burris, 59 F.2d 1042, 1044 (D.C.Cir.1932) ("Where there is doubt, it shou......
  • Alberts v. HCA, Inc., Civil No. 12–564 (RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 11, 2013
    ...any part of an expert's testimony,’ ” or “ ‘may reject it completely.’ ” ( quoting [496 B.R. 17]Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 91 (5th Cir.1990))). Defending himself from another “you disagreed with both experts” type argument on reconsideration, Judge Teel stated that a t......
  • Davis v. Int'l Bank of Commerce (In re Diamond Beach VP, LP), Case No. 1:14–cv–00046
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 29, 2016
    ...an administrative judge “can accept any part of an expert's testimony; he may reject it completely.” Avondale Shipyards, Inc. v. Kennel , 914 F.2d 88, 91 (5th Cir.1990). “Where the testimony of medical experts is at issue, the ALJ [Administrative Law Judge] is entitled to accept any part of......
  • O'Kelley v. Department of Army/Naf, BRB 99-0810
    • United States
    • Court of Appeals of Longshore Complaints
    • May 2, 2000
    ...expert simply because the expert is more highly trained or is claimant's treating physician. See generally Avondale Shipyards v. Kennel, 914 F.2d 88, 24 BRBS 46 (CRT)(5th Cir. 1990). Rather, the administrative law judge, as factfinder, must independently analyze and discuss the medical evid......
  • Request a trial to view additional results

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