Cooper v. Hunter

• Decision Date: 21 September 2000
• Docket Number: No. 99-60599,99-60599
• Parties: (5th Cir. 2000) PORT COOPER/T. SMITH STEVEDORING COMPANY, INC., Petitioner, v. Willard HUNTER, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

227 F.3d 285 (5th Cir. 2000)

PORT COOPER/T. SMITH STEVEDORING COMPANY, INC., Petitioner, v. Willard HUNTER, Respondent

No. 99-60599.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 21, 2000

Michael D Williams, Kenneth G Engerrand (argued), Brown, Sims, Wise & White, Houston, TX, for Petitioner.

Gary B Pitts (argued), Pitts & Collard, Houston, TX, for Hunter.

On Petition for Review of the Decision and Order of the Benefits Review Board.

Before WIENER and STEWART, Circuit Judges, and LITTLE^*, District Judge.

CARL E. STEWART, Circuit Judge:

Before us is an appeal from a decision by an Administrative Law Judge ("ALJ"), pursuant to a claim under the Longshore and Harbor Workers' Compensation Act, affirmed by the Benefits Review Board ("BRB"). The self-insured employer in this case, Port-Cooper/T.Smith Stevedoring ("Port Cooper"), takes the position that it is impossible that the injury suffered by Willard Hunter ("Hunter") occurred as alleged. After a thorough review of the record in this case, we affirm, finding that the evidence supports the ALJ's findings.

FACTUAL AND PROCEDURAL BACKGROUND

Willard Hunter filed a claim for benefits as a result of an accident allegedly occurring on April 5, 1997, where his shoulder was injured when the steering wheel of a forklift he was operating "kicked back," catching his hand and arm. The longshoremen witnesses in this case describe a "kick back" as occurring when a driver picks up a heavy load, and then runs over an object in his way. The wheels on the forklift lock up and the steering wheel spins out of control. Hunter continued working after the incident but within two hours reported to the foreman and superintendent that his arm was giving him pain and was very stiff. After going to the hospital, Hunter received medical attention and an orthopedic doctor diagnosed him with a torn ligament in his left shoulder. The claim was controverted by Port Cooper April 17, 1997, and no disability benefits were paid.

A formal hearing was held March 30, 1998 before an ALJ, the principal issues being whether Hunter suffered an injury April 5, 1997 in the course of his employment with Port Cooper, and the nature and extent of any disability sustained. On June 22, 1998, the ALJ issued a decision and order awarding benefits to Hunter. On July 4, 1999 the BRB affirmed the ALJ's decision and order. Port Cooper timely filed notice of appeal to this court.

DISCUSSION

The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-950 ("LHWCA" or "the Act") requires the BRB to accept the findings of the ALJ "unless they are not supported by substantial evidence in the record considered as a whole or "unless they are irrational." Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir.1991) (citing 33 U.S.C. 921(b)(3)). The BRB does not have the statutory authority "to engage in a de novo review of the evidence or to substitute its views for those of the ALJ." Mijangos, 948 F.2d at 944 (5th Cir.1991). Therefore, our review of BRB decisions is limited to considering errors of law and ensuring that the Board adhered to its statutory standard of review, that is, whether the ALJ's findings of fact are supported by substantial evidence and are consistent with the law. See Sisson v. Davis & Sons, 131 F.3d 555, 557 (5th Cir.1998) (internal citation omitted). "We may not substitute [our] judgment for that of the AU, nor may we reweigh or reappraise the evidence, instead we inquire whether there was evidence supporting the ALJ's factual findings." Boland Marine & Manufacturing Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir.1995) (quoting Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.1991)).

Section 920 of the LHWCA states, "It shall be presumed, in the absence of substantial evidence to the contrary-(a) That a claim comes within the provisions ..." of the Act. Thus, inherent in this provision is the presumption that an injury is causally related to a worker's employment. See Gooden v. DOWC, 135 F.3d 1066, 1068 (5th Cir.1998) In order for that presumption to apply, the claimant must make a prima facie showing of causation. Id. To invoke the Section 920(a) presumption, a claimant must prove (1) that he or she suffered harm, and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition. See Conoco, Inc., v. DOWC, 194 F.3d 684, 687 (5th Cir.1999).

There is no dispute between the parties that Willard Hunter suffered an injury to his left shoulder. Mr. Hunter, a forty-six-year-old man who had been a longshoreman for twenty-six years, testified that between nine and ten o'clock on the Saturday morning of April 5, 1997 he was unloading steel pipes with a forklift on a dock filled with wooden dunnage. Maneuvering on the dock, he turned the steering wheel of the forklift to one extreme, reversed, and the gears began to grind. Attempting to accelerate, he "mashed" the gas and hit several pieces of dunnage causing them to spew about. Hunter testified that at that point, the steering wheel spun violently out of control, catching his left arm and jerking his shoulder. Hunter continued to work, although by noon he stopped because his shoulder was sore and stiff. He reported the accident to the foreman of his shift and Port Cooper's superintendent. Hunter left work and went to Memorial Hospital where his treating nurse initially noted that his left shoulder was immobilized. Hunter's shoulder was x-rayed and examined by an orthopedic specialist, Dr. B.T. Wright ("Dr. Wright"), who diagnosed him with left A/C separation, or a torn ligament. Dr. Wright causally related Hunter's injury to the work accident and noted that it was medically necessary for Hunter to have time off. Based on this evidence we find a prima facie showing that an accident which could have caused Hunter's torn ligament occurred at Port Cooper.

Once a prima facie case is established and the presumption is invoked, the burden shifts to the employer to rebut it. See Hampton v. Bethlehem Steel Corp., 24 BRBS 141, 144 (1990). The presumption can be rebutted by "substantial evidence to the contrary[.]" 33 U.S.C. 920(a). A presumption can be rebutted by an employer through substantial evidence establishing the absence of a connection between the injury and the employment. See Gooden, 135 F.3d at 1068. If the employer rebuts the presumption, then the issue of causation must be decided by looking at all of the evidence in the record. Id.

The crux of Port Cooper's appeal begins with the assertion that at the time of the alleged incident, Hunter was operating a forklift with a hydraulic, not manual steering system. Through the expert testimony of Dr. James Ziegler, a biomedical and mechanical engineer, Port Cooper avers an absolute; it "would be against the laws of physics" for a hydraulicly operated forklift to produce a. kick back effect. Dr. Ziegler testified that with a hydraulic steering mechanism there is no direct mechanical link between the steering wheel and the wheels, thus impact to the wheels can not affect the steering wheel.¹ Port Cooper maintains that the ALJ and BRB erred in finding that Port Cooper failed to present substantial evidence to rebut the presumption that Hunter's injury was caused by a kick back because this was a physical impossibility if Hunter was operating a hydraulic steering system.

Although the record does not prove to a certainty that hydraulic steering forklifts are incapable of kick back, the conclusion Port Cooper advances is of no consequence because the relevant question for our analysis is what type of forklift Hunter was operating at the time of the alleged accident. That question is left unanswered by the record before us. This fact which is critical to Port Cooper's...