5th Circuit affirms denial of Longshore Benefits because presumption not invoked

by Matthew H. Ammerman on May 9th, 2011

Michael Gold was an offshore rigger for Dolphin Services, LLC. Gold claimed he hurt his back at work on November 9, 2007. But, he returned to work and never requested medical treatment. He went home for the Thanksgiving holidays and kept working thereafter. He saw his family physician during the Christmas holidays for a rash on his face but failed to report back pain. Gold was discharged for testing positive for alcohol on January 17, 2008. He went to the ER for back pain in March 2008.

Gold's supervisor testified before Administrative Law Judge Price that on November 10, 2007, Gold reported that his back was hurting. M.G. v. Dolphin Services, LLC, 2008-LHC-01915 (July 15, 2009). But, that supervisor's testimony was equivocal on whether an accident report was filled out, and the supervisor testified that Gold never requested medical treament or showed outward signs of a back injury. The testimony of no fewer than 10 fact witnesses was presented at the formal hearing. In addition, Claimant's treating surgeon, who Gold first saw on May 27, 2008, stated that he saw no evidence of an acute injury, although Claimant was ultimately found to have disk damage that may require surgery. The doctor noted 4 of 5 positive Waddell's signs indicative of inconsistencies between the worker's complaints and his clinical presentation.

To invoke the Section 20 presumption of compensability, a worker must present credible evidence that: "(1) he suffered a harm and (2) and a condition of the workplace could have caused, aggravated, or accelerated the harm." Gold v. Director, OWCP, 2011 U.S. App. LEXIS 9018 (April 29, 2011)(unpublished). Judge Price found that due to Gold's inconsistent stories and general lack of credibility he failed to invoke the Section 20 presumption. The Board affirmed Judge Price's finding that the second prong was not shown -- a connection between the alleged harm and employment.

In an unpublished opinion, the Fifth Circuit affirmed Judge Price's denial of benefits. Gold at 4. The appellate court cut to the chase in its opinion rebuffing a common argument that a mere allegation of injury is sufficient to invoke the presumption: "Gold misstates the law on this point." Id. at 3. The mere existence of physical impairment is not enough. The alleged injury must arise "out of" and occur "in the course of" employment. Gold's testimony on both prongs of the test -- injury and work-relatedness - was not credible. Id. Therefore, the Fifth Circuit affirmed the denial of benefits.

This case is a good example of the importance of the worker's credibility in invoking the presumption. While a claimant's testimony of injury and work-relatedness may invoke the presumption, the claimant's testimony must be credible. Inconsistencies and explanations offered by the claimant here were characterized as "nonsensical" by the ALJ. Therefore, while there was some evidence of an injury, there was not sufficient credible evidence to show an injury caused by Gold's work.

Most LHWCA cases are won or lost at the formal hearing. The key to success is proof: the employer here impeached Gold's credibility, presented multiple fact witnesses, and the opinion of the treating surgeon that showed Gold's back problems were not work-related. Consequently, Claimant's attempt to invoke the presumption was thwarted by his lack of credibility shown by employer's evidence.

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