PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-1041

CERES MARINE TERMINALS, INC.,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; SAMUEL JACKSON,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (14-0071)

Argued: December 8, 2015 Decided: March 24, 2016

Amended: January 27, 2017

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Petition for review denied by published opinion. Judge Gregory wrote the opinion, in which Judge Duncan and Judge Floyd joined.

ARGUED: Lawrence Philip Postol, SEYFARTH SHAW LLP, Washington, D.C., for Petitioner. Ira Michael Steingold, STEINGOLD & MENDELSON, Suffolk, Virginia; Sarah Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Mark A. Reinhalter, Counsel for Longshore, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers’ Compensation Programs, United States Department of Labor.

2 GREGORY, Circuit Judge:

This case arises from a horribly tragic work-related

accident. Samuel P. Jackson, an employee of Ceres Marine

Terminals, Inc. (“CMT”), was operating a forklift when he

accidently struck and killed his coworker, Paula Bellamy. After

this event, Jackson, who was diagnosed with posttraumatic stress

disorder (“PTSD”), filed a claim with the Director of the Office

of Workers’ Compensation Programs (the “Director”) for

disability benefits under the Longshore and Harbor Workers’

Compensation Act (“LHWCA” or the “Act”),

. The

Administrative Law Judge (“ALJ”) reviewing the claim determined

that Jackson was entitled to benefits and the Benefits Review

Board (the “Board”) affirmed.

CMT now petitions for review of the Board’s decision,

arguing that a person bringing a claim under the LHWCA is

required to satisfy the “zone of danger” test outlined by the

Supreme Court’s decision in Consolidated Rail Corp. v.

Gottshall,

(1994). “Under this test, a worker

within the zone of danger of physical impact will be able to

recover for emotional injury caused by fear of physical injury

to himself, whereas a worker outside the zone will not.”

. Had the Board adopted such a test, CMT asserts,

Jackson would have been precluded from any recovery under the

LHWCA because he was not in the zone of danger and thus did not

3 suffer a compensable injury. In addition, CMT contends that the

ALJ erred in failing to give the report of an independent

medical examiner, appointed pursuant to

(e),

dispositive weight. We disagree on both points and therefore

deny the petition.

I.

A.

On March 28, 2011, Jackson, employed by CMT as a

longshoreman, was operating a forklift on a pier in Portsmouth,

Virginia, when he accidently struck and killed Bellamy. At the

time, Jackson was transporting barrels of container pins when he

veered the forklift to his left to avoid being struck by a

hustler truck that was backing up and carrying a forty foot

container. When he veered, he hit Bellamy, a spotter, who had

her back towards him. Jackson did not see Bellamy, and did not

realize he had hit her until another spotter “hollered at [him]

to let [him] know that [he] had just ran over . . . somebody.”

J.A. 61. Jackson immediately got off his forklift to help

extricate Bellamy who was almost completely pinned underneath

the forklift. Another forklift driver drove over and, with his

machine, raised the back end of Jackson’s forklift. Jackson and

others worked to free Bellamy from under his forklift.

4 Once they were able to lift the forklift, it was apparent

that Bellamy’s condition was dire: Jackson testified that

“[Bellamy] was bleeding from her mouth. Her arm was burned and

pretty mangled, hanging off.” J.A. 63. Jackson further

testified that Bellamy’s leg was wrapped around the axle of the

forklift. For about ten minutes, Bellamy’s condition was in

full view until emergency vehicles arrived. By this time,

approximately one hundred people gathered at the scene,

including ambulance and fire truck personnel and CMT employees.

During the entire time that the first responders worked to save

Bellamy, Jackson stood ten to fifteen feet away, with a clear

view of her.

After the ambulance left for the hospital, Jackson spent

the rest of the day reporting the accident to the Portsmouth

Police Department, Virginia International Terminals Police

Department, the Occupational Safety and Health Administration,

and CMT officials. Jackson testified that after his

conversation with Gregory Concepcion, the superintendent for

CMT, he sought medical attention.

B.

Jackson saw several medical professionals for mental health

treatment after the March 2011 accident. Jackson visited

Dr. Margaret Stiles, his primary care physician, on March 29,

2011, one day after the incident. Dr. Stiles noted that Jackson

5 was “acutely extremely upset, stressed,” and diagnosed and

treated him for PTSD. J.A. 351, 354, 360. At and around this

time, Dr. Stiles recommended that Jackson not return to work

because of his condition. On April 6, 2011, Dr. Stiles referred

Jackson to Gregory Griffin, a licensed clinical social worker,

for counseling. Griffin recommended brief supportive crisis-

debriefing counseling and that Jackson not return to work for

four to six weeks. Griffin diagnosed Jackson with an adjustment

reaction with depressed mood.

After Jackson’s family noticed “dramatic changes” in his

behavior, they collectively “persuade[d]” Jackson to see

Dr. Norbert Newfield. J.A. 286-87. Dr. Newfield, a clinical

psychologist, first evaluated Jackson on July 11, 2011.

Dr. Newfield found that Jackson suffered from PTSD with

significant levels of anxiety and depression resulting from the

work-related accident. Over the course of his treatment – from

mid-2011 through 2013 – Dr. Newfield usually saw Jackson on a

weekly basis, sometimes twice a week. On February 20, 2012,

almost a year after the accident, Dr. Newfield noted that

Jackson was still experiencing extremely bad nightmares and

levels of guilt, shame, and grief that prevented him from

6 returning to work. Dr. Newfield monitored Jackson for suicide

as well. 1

Dr. Patrick Thrasher, a psychiatrist retained by CMT,

conducted an independent medical examination of Jackson on

September 14, 2011, and reviewed Jackson’s medical records.

Dr. Thrasher diagnosed Jackson with PTSD and major depression,

and he concluded that these diagnoses were causally related to

the work accident. Dr. Thrasher stated that the severity of

Jackson’s depression and PTSD rendered him incapable of

returning to work. Dr. Thrasher further stated that with

aggressive psychiatric treatment and psychotherapy, Jackson

might be able to return to work within six to twelve months.

After reviewing updated medical records, Dr. Thrasher, on

February 12, 2012, noted that Jackson was undermedicated, and

recommended a more aggressive psychotropic treatment targeting

Jackson’s depressive symptoms and sleep disturbance.

Based on Dr. Thrasher’s recommendation that Jackson was

undermedicated, CMT requested, pursuant to

(e),

an independent medical examination to determine if Jackson was

1 Dr. Newfield referred Jackson to a psychiatrist, Dr. Deborah Giorgi-Guarnieri. Dr. Giorgi-Guarnieri began treating Jackson on November 14, 2011. Dr. Giorgi-Guarnieri’s notes indicate that she treated Jackson every two to four weeks. Dr. Giorgi-Guarnieri recorded that Jackson had been battling depression and anxiety and suffered from flashbacks and nightmares. Dr. Giorgi-Guarnieri continued to see Jackson for medication management.

7 receiving proper medical care. In light of this request, the

Office of Workers’ Compensation Programs referred Jackson to

psychiatrist Dr. Paul Mansheim for an independent medical

examination. Dr. Mansheim evaluated Jackson on November 15,

2012, and reviewed Jackson’s medical records, as well as the

results of a standardized personality assessment inventory test.

In his December 8, 2012 report, Dr. Mansheim stated that the

diagnoses suggested by the personality assessment inventory test

were extremely broad and suggested PTSD, schizophrenia, and

major depressive disorder. Dr. Mansheim, however, “rule[d] out

the [PTSD] diagnosis” because Jackson “did not experience a

threat to himself” and “was never in danger” during the

accident. J.A. 154. Dr. Mansheim further opined that Jackson

demonstrated “significant evidence of malingering, attempting to

appear more ill than is actually the case.” J.A. 155.

Dr. Mansheim concluded that Jackson was able to work as a

longshoremen.

After reviewing Dr. Mansheim’s report, CMT – who had

voluntarily paid Jackson temporary total disability benefits –

terminated its payments on December 17, 2012.

C.

Jackson filed a claim for disability benefits under the

LHWCA, alleging that he suffered from PTSD as a result of the

8 work-related incident. 2 CMT disputed the claim, arguing that

Jackson was not entitled to compensation under the LHWCA for a

psychological injury because he did not sustain a physical

injury or was placed in immediate risk of physical injury by the

incident. In other words, Jackson was not in the zone of

danger. CMT further contended that the ALJ should give

dispositive weight to Dr. Manshiem’s conclusion that Jackson did

not suffer from PTSD.

In his November 13, 2013 decision, the ALJ rejected CMT’s

“contention that a claimant cannot recover for psychological

injury unless he sustains a physical injury or is placed in

immediate risk of harm.” J.A. 44. The ALJ held that

“[l]ongshore case law has established that a claimant can obtain

benefits for a work-related psychological injury,” and declined

“to carve out a negligence law based exception whereby claimants

are not entitled to benefits if they are emotionally harmed

2In addition to filing a claim under the LHWCA, Jackson filed a claim with the Virginia Workers’ Compensation Commission. The commission denied Jackson’s claim for medical benefits and compensation, holding that Jackson was not in the zone of danger. See Jackson v. Ceres Marine Terminals, Inc.,

(Va. Ct. App. 2015). The Court of Appeals of Virginia reversed, declining to adopt a zone of danger test under Virginia law. The court held that “psychological injury must be causally related to either a physical injury or an obvious sudden shock or fright arising in the course of employment, without a specific requirement that the claimant be placed at risk of harm.”

. The court remanded the case back to the commission to apply the correct legal standard. That case is currently pending.

9 without being physically harmed or threatened with physical

harm.”

Addressing the medical evidence, the ALJ first

refused, as contrary to Board precedent, to accord dispositive

weight to Dr. Manshiem’s opinion. After weighing the evidence,

the ALJ found that Jackson suffered from PTSD which was causally

related to the March 28, 2011, work incident. The ALJ concluded

that, because Jackson “is suffering from work-accident related

PTSD,” he was entitled to temporary total disability benefits

and medical benefits under the LHWCA. Id. at 50.

CMT appealed, raising the same arguments to the Board. In

its November 25, 2014 opinion, the Board rejected CMT’s

contention that the zone-of-danger test precluded Jackson from

recovery in this case. The zone-of-danger test, the Board held,

is a “tort concept which does not apply to the workers’

compensation provisions of the Longshore Act.” J.A. 10. The

Board stated that CMT’s “argument fails to acknowledge the

critical distinction, [as recognized in Consolidated Rail],

between tort actions, which rely on common law fault and

negligence principles, and worker’s compensation claims, which

are not governed by those principles.” Id. It is well

established, the Board concluded, “that a work-related

psychological impairment, with or without an underlying physical

harm, may be compensable under the Act.” Id. at 9-10.

10 In addition, the Board rejected CMT’s contention that

Dr. Mansheim’s opinion should be given dispositive weight,

holding that Dr. Mansheim’s opinion “should be weighed along

with the other medical opinions in the record.” Id. at 12.

Because the ALJ properly weighed the evidence, the Board

affirmed the ALJ’s finding that Jackson sustained a compensable

work-related injury.

II.

CMT has petitioned this Court for review, and we possess

jurisdiction pursuant to

(c). In reviewing the

Board’s decision, we must determine “whether the Board observed

its statutorily-mandated standard for reviewing the ALJ’s

factual findings.” Newport News Shipbldg. & Dry Dock Co. v.

Stallings,

, 871 (4th Cir. 2001) (internal

quotations and citations omitted). We are also guided by the

principle that an ALJ’s factual findings “shall be conclusive if

supported by substantial evidence in the record considered as a

whole.”

(b)(3). Substantial evidence requires

“more than a scintilla but less than a preponderance.” Norfolk

Shipbldg. & Drydock Co. v. Faulk,

, 380–81 (4th Cir.

2000). Further, an ALJ’s findings “may not be disregarded on

the basis that other inferences might have been more reasonable.

Deference must be given the fact-finder’s . . . credibility

11 assessments, and . . . the scope of review of ALJ findings is

limited.” Newport News Shipbldg. & Dry Dock Co. v. Tann,

(4th Cir. 1988). In reviewing legal issues, the

Board’s “adjudicatory interpretation of the LHWCA is entitled to

no special deference, and is subject to our independent review.

However, a reasonable interpretation of the LHWCA by the

Director should be respected.” Stallings, 250 F.3d at 871

(internal quotations and citations omitted).

III.

The LHWCA was enacted to create a federal workers’

compensation statute for longshoremen and harbor workers, in

light of the Supreme Court’s decision that state workers’

compensation statutes constitutionally could not apply to

injured maritime workers. See Nogueira v. N.Y., New Haven &

Hartford R. Co.,

(1930). The LHWCA, like most

workers’ compensation legislation, represents a compromise

between employer and employee. “Consistent with the central

bargain of workers’ compensation regimes - limited liability for

employers; certain, prompt recovery for employees - the LHWCA

requires that employers pay benefits voluntarily, without formal

administrative proceedings.” Roberts v. Sea-Land Servs., Inc.,

(2012).

12 In other words, the LHWCA strikes a balance between the

competing interests of injured workers and their employers in

which the certainty of benefits is exchanged for tort immunity.

See Morrison-Knudsen Constr. Co. v. Dir., OWCP,

(1983); Potomac Elec. Power Co. v. Dir., OWCP,

,

281-82 & n.24 (1980). The LHWCA, therefore, “imposes liability

without fault and precludes the assertion of various common-law

defenses . . . .” Potomac Elec. Power Co.,

; see

also

(b) (“Compensation shall be payable

irrespective of fault as a cause for the injury.”).

To be entitled to benefits under the LHWCA, a claimant must

have sustained an injury within the meaning of the Act. See

(a) (“Compensation shall be payable under this [Act]

in respect of disability . . . of an employee, but only if the

disability . . . results from an injury.”); see also Metro.

Stevedore Co. v. Rambo,

(1995) (stating that

the LHWCA “is a comprehensive scheme to provide compensation in

respect of disability or death of an employee . . . if the

disability or death results from an injury occurring upon the

navigable waters of the United States”). Section 902(2) of the

LHWCA provides,

The term “injury” means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably

13 results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.

(2).

Injuries are presumed to be work related under

after the claimant establishes a prima facie case that the

injury not only was caused by the employment, but that it also

arose during employment. See U.S. Indus. Fed. Sheet Metal, Inc.

v. Dir., OWCP,

(1982) (“Not only must the

injury have been caused by the employment, it also must have

arisen during the employment.”). “Once the presumption is

invoked, the burden shifts to the employer to rebut it through

facts - not mere speculation - that the harm was not work

related.” Conoco, Inc. v. Dir., OWCP,

(5th

Cir. 1999). “If the ALJ finds that the employer rebutted the

presumption, then the ALJ must weigh all of the evidence to

determine whether the harm was caused by the claimant’s

employment.” Ramsey Scarlett & Co. v. Dir., OWCP,

(5th Cir. 2015).

IV.

In its petition for review, CMT makes two primary

arguments. First, CMT argues that Jackson did not suffer a

compensable injury within the meaning of the LHWCA because he

14 was not in the zone of danger; that is, only those who suffer a

physical injury or were within the zone of danger of physical

impact can recover for a work-related psychological injury.

Because Jackson was outside of the zone of danger, CMT asserts,

he did not suffer any compensable injury under the LHWCA.

Second, CMT contends that the ALJ committed error by failing to

give Dr. Mansheim’s opinion dispositive weight. The Director

maintains, on the other hand, that it is well established that

psychological injuries – with or without physical injury or the

threat of physical injury – are compensable under the LHWCA.

The Director further contends that Dr. Mansheim’s opinion was

not entitled to dispositive weight and is not binding on the

factfinder. For the reasons explained below, we agree with the

Director on both issues.

A.

CMT does not dispute that Jackson can recover for a

psychological injury under the LHWCA. Rather, CMT contends that

Jackson cannot, under the LHWCA, recover for a psychological

injury unless he sustains a physical injury or was placed in

immediate risk of physical harm. In support of this argument,

CMT relies exclusively on the zone-of-danger test set forth by

the Supreme Court in Consolidated Rail – a case that did not

involve the statute at issue in this case. CMT’s contention is

not only inconsistent with the statute’s text, the structure of

15 the statute, and precedent but is also contradicted by the very

reasoning of the case on which it relies so heavily –

Consolidated Rail.

The LHWCA plainly does not encompass such a limitation by

its express terms. The LHWCA does not distinguish between

psychological and physical injuries – the statute simply says

“injury.” See

(2) (defining “injury,” without

limitation, as any “accidental injury or death arising out of

and in the course of employment”). Nowhere in the statute is

there a requirement that psychological injuries be accompanied

by actual or threatened physical harm. To be sure, Congress

could have easily written the statute to contain such a

requirement, but it did not. We therefore refuse to “amend

[the] statute under the guise of statutory interpretation, a

task we are not at liberty to perform.” Newport News Shipbldg.

& Dry Dock Co. v. Hall,

, 251 (4th Cir. 1982). For

good reason. The zone-of-danger test is, after all, a “well-

established common-law concept of negligence.” Consolidated

Rail,

(quotations and alterations omitted). The

rules of the common law for tort actions, however, generally do

not apply to cases arising under LHWCA – a “no-fault workers

16 compensation scheme.” 3 See Newport News Shipbldg. and Dry Dock

Co. v. Brown,

, 249 (4th Cir. 2004).

Further, courts interpreting § 902(2) of the LHWCA have

held that claimants can recover for a work-related psychological

injury, and have never mandated actual or threatened physical

harm to be a prerequisite for coverage. See, e.g., Pedroza v.

Dir., OWCP,

(9th Cir. 2009) (“It is well

settled that a psychological impairment, which is work related,

is presumed to be compensable under the Act. Therefore, to

receive the benefit of this § 920(a) presumption, the claimant

must prove not only that he has a psychological impairment, but

that an accident occurred, or working conditions existed, which

could have caused the impairment.” (citation omitted)); Dir.,

OWCP v. Potomac Elec. Power Co.,

(D.C. Cir.

1979); Am. Nat’l Red Cross v. Hagen,

, 561 (7th Cir.

1964). Nor has the Board endorsed such a limitation. See,

e.g., J.A. at 9-10 (“[I]t is well established that a work-

related psychological impairment, with or without an underlying

physical harm, may be compensable under the Act.”).

3 We recognize that, under certain limited circumstances, the longshore worker may seek damages in a statutory negligence action from the owner of the vessel on which he was injured under

(b). This case does not present such circumstances.

17 Moreover, CMT’s reliance on Consolidated Rail is wholly

misplaced. In Consolidated Rail, a case in which a railroad

worker experienced severe psychiatric problems after witnessing

the death of a fellow worker while on the job and was required

to continue working within sight of the coworker’s body, the

Supreme Court held that claims for negligent infliction of

emotional distress are cognizable under the Federal Employers’

Liability Act (“FELA”).

. But to curtail what

it believed might otherwise be “unpredictable and nearly

infinite liability for defendants,”

, the Court

adopted the zone-of-danger test developed as common law in many

jurisdictions.

. The Court expressly stated that

FELA was not a workers’ compensation statute and emphasized that

the basis of an employer’s liability under FELA is its

negligence, which turns on common-law principles. Unlike the

statute at issue here, FELA “does not make the employer the

insurer of the safety of his employees while they are on duty.

The basis of his liability is his negligence, not the fact that

injuries occur.”

at 543 (quoting Ellis v. Union Pac. R.

Co.,

(1947)). Thus, by its terms,

Consolidated Rail is inapposite to a claim for workers’

compensation benefits under the LHWCA.

18 Because we are not free to engraft on the statute a

requirement that Congress did not place there, we decline to

adopt the zone-of-danger test.

B.

CMT next contends that the ALJ erred in failing to give the

report of Dr. Mansheim, an independent medical examiner

appointed pursuant to

(e), dispositive weight.

We disagree, as there is nothing in the plain language of the

statute that indicates that Congress intended to give the

opinion of an independent medical examiner dispositive weight or

to make the examiner’s opinion binding on the parties.

Section 7(e) provides in part,

In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted.

(e) (emphasis added). Were we to read the

statute as CMT does, we would nullify the second clause of

§ 907(e), which provides the opportunity for further review by

another physician if a party is dissatisfied with the

19 independent medical examiner’s opinion. We therefore decline

CMT’s invitation to do so, as the second clause clearly

indicates that the independent medical examiner’s opinion is not

binding on the ALJ or the parties. Rather, the independent

medical examiner’s opinion must be weighed along with the other

medical opinions of record, as the Board has repeatedly held.

See Cotton v. Newport News Shipbldg. & Dry Dock Co., 23 B.R.B.S.

380, 387 (1990); Shell v. Teledyne Movible Offshore, Inc., 14

B.R.B.S. 585 (1984).

Our interpretation of this provision is not only consistent

with other circuits but is also consistent with the position

advanced by CMT in a separate case. In Ceres Marine Terminal v.

Hinton,

(5th Cir. 2001), CMT argued, “an opinion of

a Department of Labor IME is entitled to great weight. This is

not to say that the Department of Labor IME’s opinion is

dispositive.” Compare Br. of Pet., Ceres Marine Terminal v.

Hinton,

(5th Cir. 2001) (No. 00-60171),

, at *46, with CMT’s Br. at 40 (“Dr. Mansheim’s opinion

should have been dispositive. . . . Indeed, isn’t the whole

purpose of a section 7(e) evaluation to resolve the case?”).

The Fifth Circuit rejected CMT’s argument, holding that the

ALJ’s conclusions – after weighing all the medical evidence,

including the independent medical examiner’s report - must only

20 be “supported by substantial evidence in the record as a whole.”

Hinton,

.

CMT further argued in Hinton that if the ALJ “is going to

reject the Department of Labor IME’s opinion, the [ALJ] needs a

very good reason for doing so.” Br. of Pet., Hinton,

at *46. Here, CMT should take solace in the fact that

the ALJ provided several “good reason[s]” in giving less weight

to Dr. Mansheim’s opinion. One reason, among many, was

Dr. Mansheim’s unsubstantiated statement that the traumatic

event experienced by Jackson – the prime actor in this incident

– would not meet the criteria for PTSD because, if Jackson

qualified, then more than half the population would meet the

diagnosis, as that population has seen an image of a mangled

body. The ALJ concluded that “Dr. Manshiem’s estimates on

population experience raise concerns that his report is not

well-reasoned and well-documented.” J.A. 49. Indeed.

Because the statute clearly does not contemplate an ALJ

giving dispositive weight to an independent medical examiner’s

opinion, we decline to “amend [the] statute under the guise of

statutory interpretation.” Hall, 674 F.2d at 251.

C.

In weighing the evidence as a whole, the ALJ found the

opinions of Jackson’s treating psychologist, Dr. Newfield, and

CMT’s expert psychiatrist, Dr. Thrasher, credible; both

21 physicians diagnosed Jackson with PTSD and concluded that this

diagnosis was causally related to the work accident. The ALJ

further found that those opinions outweighed Dr. Mansheim’s

opinion that Jackson did not meet the criteria for a diagnosis

of PTSD. CMT’s arguments on appeal, in effect, seek a

reweighing of the evidence, which we are not empowered to do.

Thus, the ALJ’s conclusion that Jackson suffered a work-related

psychological injury is amply supported by substantial evidence

when the record is considered as a whole.

V.

For the foregoing reasons, CMT’s petition must be denied.

PETITION FOR REVIEW DENIED

22