Nabors Offshore Drilling Inc. v. Smoot , 248 F. App'x 573 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-61172
Summary Calendar September 25, 2007
Charles R. Fulbruge III
Clerk
NABORS OFFSHORE DRILLING INCORPORATED
Petitioner
v.
CHRISTOPHER SMOOT; Director, Office of Workers
Compensation Programs, U S DEPARTMENT OF LABOR
Respondents
Petitioner for Review of an Order from the Benefits Review Board
BRB Nos. 06-0283, 06-0283A
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher Smoot was injured on January 4, 2004 while taking down a
gas buster pipeline, which flipped, hitting him on the head. Smoot was treated
for a fractured skull, persistent headaches, and psychological injuries. He filed
for benefits under the Longshore and Harbor Worker’s Compensation Act, 33
U.S.C. § 901, et seq. (the “Act”). The Administrative Law Judge (“ALJ”) awarded
Smoot temporary total disability from January 4, 2004 through May 25, 2005
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-61172
and ongoing temporary partial disability thereafter based on Smoot’s ongoing
psychological problems resulting from his injuries. The ALJ also ordered
Smoot’s employer, Nabors Offshore Corporation (“Nabors”), to pay an additional
10 percent on unpaid installments of compensation pursuant to 33 U.S.C. §
914(e) and to pay for all reasonable and necessary future medical expenses
arising from Smoot’s employment-related psychological injuries. Finally, the
ALJ awarded attorney’s fees and expenses. The Benefits Review Board (“BRB”)
affirmed this award. Nabors appeals claiming that insufficient evidence
supports the ALJ’s award of disability payments. Nabors also challenges (1) the
finding that Smoot is entitled to all reasonable and necessary future medical
expenses resulting from his psychological injuries; (2) the award of penalties
pursuant to 33 U.S.C. § 914(e); and (3) the award of attorney’s fees and expenses.
This Court reviews decisions of the BRB under the same standard the
BRB uses to review the ALJ: whether the decision is supported by substantial
evidence and is in accordance with the law. SGS Control Servs. v. Dir. Office of
Worker’s Comp. Programs, 86 F.3d 438, 440 (5th Cir. 1996). This court may not
substitute its judgment for that of the ALJ or re-weigh evidence; its review is
limited to determining “whether evidence exists to support the ALJ’s findings.”
Id.There is a presumption that a claim comes within the provisions of the Act
in the absence of substantial evidence to the contrary. 33 U.S.C. § 920(a); Port
Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000).
To trigger this presumption, the plaintiff must make a prima facie showing of
causation. Port Cooper, 227 F.3d at 287. A plaintiff meets this burden by
proving “(1) that he or she suffered harm, and (2) that . . . an accident occurred
at work, that could have caused, aggravated, or accelerated the condition.” Id.The record in this case supports the ALJ’s determination that the presumption
was triggered, thus shifting the burden to Nabors to rebut this presumption. Id.2
No. 06-61172
at 288. The record also supports the ALJ’s finding that Nabors did not rebut the
presumption that Smoot’s ongoing psychological problems were causally related
to his workplace accident. Also, three separate medical experts opined that
Smoot’s psychological condition precludes his return to work, providing ample
support for the ALJ’s finding that Smoot was totally disabled through May 25,
2005 and partially disabled thereafter. Although there was conflicting medical
testimony in this regard, it is not the role of this court to re-weigh the evidence
or make credibility determinations. Mijangos v. Avondale Shipyards, 948 F.2d
941, 945 (5th Cir. 1991). Moreover, if “the testimony of medical experts is at
issue, the ALJ is entitled to accept any part of an expert’s testimony or reject it
completely.” Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir. 1995). The
record in this case also supports the ALJ’s award of future medical benefits for
his psychological condition. Finally, with respect to the Section 14(e) penalty
assessment and the award of attorney’s fees and expenses, Nabors’ sole
argument is that these portions of the ALJ’s award are erroneous because Smoot
is not disabled and is not entitled to medical benefits. Because we affirm the
finding that Smoot was totally disabled through May 25, 2005 and partially
disabled thereafter, these arguments lack merit.
The order of the Benefits Review Board is AFFIRMED.
3