Ssa Terminals v. Robert Amezcua ( 2016 )

NOT FOR PUBLICATION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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