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United States Court of Appeals,
Fifth Circuit.
No. 94-40780
Summary Calendar.
Bernardo MENDOZA, Petitioner,
v.
MARINE PERSONNEL COMPANY, INC., Cigna Insurance Company, and
Director, Office of Workers Compensation of the United States
Department of Labor, Respondents.
March 6, 1995.
Petition for Review of an Order of the Benefits Review Board.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Claimant, Bernardo Mendoza, petitions for review of an order
of the Benefits Review Board ("BRB") upholding the decision
administrative law judge ("ALJ"), who found that claimant was
permanently partially disabled rather than permanently totally
disabled. Concluding that the BRB did not err, we deny the
petition for review.
I.
Mendoza was working as a welder/fitter for Marine Personnel
Company ("Marine") when he was injured in November 1987. Mendoza
had Dr. Thomas Padgett perform lumbar laminectomy back surgery in
April 1988. A second back surgery was performed by Padgett and Dr.
Richard Moiel in August 1989. Following recuperation time, Padgett
concluded that claimant had reached maximum medical improvement on
April 23, 1990. He assessed the permanent disability at 40% and
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indicated that claimant could not return to his previous occupation
or any work that required repeated lifting over 20 pounds or
repeated bending. He also opined that claimant's prognosis for
returning to any type of gainful employment was doubtful.
Claimant did not return to work. Dr. Thomas O. Moore, who had
examined claimant before the second surgery, re-examined claimant
in July 1991 and concluded that claimant could perform light to
medium degree work. Employer and carrier, Cigna Insurance Company,
hired William Quintanilla, a vocational rehabilitation specialist,
to interview the claimant and survey the Houston labor market for
suitable employment opportunities.
Claimant, instead, sought total disability compensation under
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 壯
901-950. Employer paid claimant's temporary total disability
compensation from the time of the injury until the formal hearing
in front of the ALJ in September 1991. Employer also paid
claimant's medical expenses.
The ALJ determined that claimant had met his burden of showing
that he was unable to return to his former employment. The ALJ
also found that employer had established that suitable alternate
employment was available to claimant and that claimant had not
exercised due diligence in attempting to secure such employment.
The ALJ held that claimant was temporarily totally disabled
from the date of the injury through the date of maximum medical
recovery, April 23, 1990. The ALJ held that claimant was also to
be compensated for a total disability from April 23, 1990, through
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August 28, 1991, the date on which suitable alternate employment
was established.
The ALJ determined that claimant's wage earning capacity after
August 28, 1991, was $170 per week. The ALJ subtracted this figure
from claimant's pre-injury average weekly wage of $192 to determine
the claimant's loss of wage-earning capacity. Claimant was awarded
weekly compensation benefits of two-thirds of the loss of
wage-earning capacity. The BRB found that the ALJ's determinations
were supported by substantial evidence and affirmed the award.
II.
This court reviews the decisions of the BRB for errors of law
and applies the same substantial evidence standard that governs the
BRB's review of the ALJ's factual findings. P & M Crane Co. v.
Hayes, 930 F.2d 424, 428 (5th Cir.1991). We must affirm the BRB's
decision "if it correctly concluded that the ALJ's findings are
supported by substantial evidence and are in accordance with the
law." Id.
The ALJ determined that, while claimant could not return to
his old job, he could perform some light duty work. The ALJ
specifically found that claimant was capable of lifting up to ten
pounds repetitively and up to twenty pounds intermittently. The
ALJ also determined that claimant could sit for thirty minutes and
stand for one hour.
Padgett testified on direct examination at his deposition that
claimant was unable to work but later contradicted that testimony
on cross-examination by assigning specific work restrictions to
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claimant. Padgett indicated that claimant could perform a job that
did not require him to lift more than twenty pounds or perform any
repeated bending or stooping.
The ALJ specifically discounted Padgett's direct testimony and
credited the cross-examination testimony, because the restrictions
assigned directly corresponded to those listed in the April 23,
1990, letter. The ALJ declined to credit Dr. Moore's testimony,
which indicated that claimant was able to perform a greater range
of tasks. Claimant testified at the hearing that there were no
jobs that he could perform.
The ALJ determined that two of the jobs that Quintanilla had
identified in his labor market survey were compatible with the
restrictions assigned by Padgett and were reasonably available to
claimant. The ALJ also found that claimant had failed to exercise
due diligence in seeking to obtain alternate employment.
Claimant argues that the ALJ's factual findings were not
supported by substantial evidence. Specifically, claimant argues
that the ALJ erroneously found that he was capable of performing
some types of work. Claimant argues that the ALJ's evaluation of
Padgett's testimony was incorrect and that the ALJ failed to accord
proper weight to claimant's own testimony about his physical
condition. Claimant asserts that the ALJ did not examine the
record "as a whole" but chose to consider only parts of it.
The ALJ is the factfinder and "is entitled to consider all
credibility inferences." Avondale Shipyards, Inc. v. Kennel, 914
F.2d 88, 91 (5th Cir.1988). The ALJ's selection among inferences
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is conclusive if supported by the evidence and the law. The ALJ
determines the weight to be accorded to evidence and makes
credibility determinations. Mijangos v. Avondale Shipyards, 948
F.2d 941, 945 (5th Cir.1991). Moreover, where 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. Kennel, 914 F.2d
at 91.1
Claimant's argument has no merit. The ALJ in this case wrote
a careful and thorough opinion. The finding that claimant is able
to perform certain types of light duty work is supported by
substantial evidence including claimant's own doctor's testimony.
The ALJ's opinion indicates that he considered claimant's testimony
as well as the testimony of both Padgett and Moore.
Claimant's challenge to the calculation of his award is also
meritless. The ALJ properly followed the procedures set out in 33
U.S.C. � 908(c)(21).
1Claimant argues that all factual doubts must be resolved in
his favor pursuant to Wheatley v. Adler, 407 F.2d 307, 312
(D.C.Cir.1968). Under this "true doubt rule" as stated in this
circuit:
"[T]he factfinder operates under the statutory policy
that all doubtful fact questions are to be resolved in
favor of the injured employee because the intent of the
statute is to place the burden of possible error on
those best able to bear it." Noble Drilling Co. v.
Drake, 795 F.2d 478, 481 (5th Cir.1986). In effect,
the statute eases the ordinary preponderance of the
evidence standard applicable in most civil suits. Id.
Kennel, 914 F.2d at 90-91. We note here that the "true
doubt rule" has been explicitly rejected by the Supreme
Court. Director, OWCP v. Greenwich Collieries, --- U.S. ---
-, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).
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