UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60474 Summary Calendar

COOPER/T. SMITH STEVEDORING CO.,

Petitioner,

VERSUS

EDWARD GILDS; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

Petition for Review of the Decision and Order of the United States Department of Labor Benefits Review Board BRB No. 98-1273 December 29, 1999 Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:*

Cooper/T. Smith Stevedoring Company, Inc. (“Cooper”) petitions

this court for review of a decision of the United States Department

of Labor Benefits Review Board awarding benefits to respondent

Edward Gilds. We affirm.

FACTS AND PROCEDURAL HISTORY

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 In October, 1993, Gilds was injured in the course and scope of

his employment with Cooper. As a part of the treatment for his

injuries, he was sent to a work-hardening program. On October 12,

1994, while working on the “quads machine” as a part of that

program, he felt pain in his right quadriceps muscle. It

immediately began to swell and the attendant put ice on it. On

October 17, 1994, Gilds was diagnosed with a knee effusion. The

pain resolved itself. On December 22, 1994, while stepping down

from a bar stool, Gild’s leg gave out and he felt immediate pain

and swelling, similar to that experienced after the work-hardening

incident. On January 11, 1995, Gilds was diagnosed with a ruptured

right quadriceps tendon. Gilds underwent corrective surgery on

January 23, 1995 and returned to work on March 27, 1995. The

central dispute is whether the ruptured tendon was caused or

aggravated by the work-hardening physical therapy. Gilds filed

a claim against Cooper for benefits pursuant to the Longshore and

Harbor Worker’s Compensation Act,

(1986)

(“LHWCA”). After a hearing, the Administrative Law Judge (“ALJ”)

ruled that Gilds was not entitled to benefits. Gilds appealed that

decision to the Benefits Review Board. The Benefits Review Board

vacated the ALJ’s denial of benefits on the grounds that the ALJ

had not applied the “Section 20(a) presumption.”1 The Benefits

1 Section 20(a) of the LHWCA,

(a), provides a longshore claimant with a presumption that his disabling condition is causally related to his employment under certain circumstances.

2 Review Board remanded the claim for a determination of whether

Cooper had presented evidence sufficient to rebut the statutory

presumption of a compensable claim pursuant to

(a)

(1986). On remand, the ALJ again determined that Gilds was not

entitled to LHWCA benefits for this injury, finding that Cooper

presented substantial evidence to rebut the Section 20(a)

presumption and that Gilds had not met his burden of proving by a

preponderance of the evidence that his tendon injury was caused,

contributed to, or aggravated by an employment related event.

Gilds appealed to the Benefits Review Board, which again

reversed. The Benefits Review Board panel reasoned that, in order

to rebut the Section 20 causation presumption, a medical opinion

must unequivocally state that no relationship exists between

claimant’s harm and his employment. Because both doctors who

testified for Cooper conceded that the pain incident in October

1994 could have been related to his January 1995 ruptured tendon,

the Benefits Review Board reversed the ALJ on the issue of

causation.

DISCUSSION

A. Standard of Review

We review the Benefits Review Board’s decision only to

determine whether it correctly concluded that the ALJ erred, that

is, whether the ALJ’s findings of fact are supported by substantial

evidence and are consistent with the law. See Boland Marine & Mfg.

3 Co. v. Rihner,

(5th Cir. 1995).

B. Rebutting the Section 20 Presumption

The circuit has recently clarified the burden imposed on an

employer who seeks to rebut the Section 20 causation presumption.

In Conoco, Inc. v. Director, O.W.C.P.,

(5th Cir.

1999), we reviewed a Benefits Review Board decision that held that

an employer had failed to adduce specific and comprehensive

evidence ruling out a causal relationship between claimant’s

employment and her injuries, and, thus, had failed to meet its

burden of proof on rebuttal. See

. We unequivocally

rejected the “ruling out” standard applied by the Benefit Review

Board in that case. See

“‘To rebut this presumption of

causation, the employer was required to present substantial

evidence that the injury was not caused by the employment.’”

(quoting Noble Drilling v. Drake,

(5th Cir.

1985)(emphasis in the original)).

Because the Benefits Review Board here employed a standard far

more stringent than the substantial evidence standard articulated

in Conoco, we find that it erred. However, Conoco also teaches

that such error is reviewed for harmlessness. See

.

In order resolve the question of harmlessness, we conduct an

independent review of the record to see if the ALJ’s findings are

supported by substantial evidence, keeping in mind the deference

due the ALJ’s findings. See

The ALJ relied on the testimony

4 of two physicians and an inference drawn from the fact that Gilds

did not mention the earlier knee pain during his doctor visit on

January 11, 1995 when the tendon rupture was initially diagnosed.

After a review of the record as a whole, we find that the

Benefit Review Board’s use of an incorrect standard was harmless

error. One of the physicians opined that while the work-hardening

exercises did not “cause” the rupture, they probably caused a small

tear in Gilds’s knee and that this tear subsequently became one of

the causal factors in the later rupture. The other physician

testified initially, based solely on medical records, that the most

likely cause of the rupture was the a twisting when Gilds’s knee

gave out just three weeks before his surgery. However, when given

a hypothetical set of facts concerning Gilds’s October injury

(which facts were established by other evidence and which were not

included in the medical records the physician had previously

reviewed) the physician reversed himself and related the rupture to

the October injury. He explained that quadriceps ruptures are

usually due to a degenerative condition, that stress contributes to

a rupture and that the quadriceps machine put stress on the tendon.

The ALJ’s reliance on this doctor’s preliminary testimony that did

not take into consideration all the facts is misplaced. Further,

Gilds’s failure to mention the October injury during his January

diagnostic visit is not substantial evidence which would support

the ALJ’s determination that Cooper rebutted the Section 20

causation presumption. We therefore conclude that there is no

5 substantial evidence in the record to support the ALJ’s denial of

Gilds’s claim for benefits.

CONCLUSION

Based on the foregoing, we find that the Benefits Review

Board’s error in applying the wrong standard of review was harmless

and affirm its finding that Cooper failed to rebut the Section 20

presumption on the issue of causation.

AFFIRMED.

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