Today’s post provides us with an opportunity to brag on one of our own, Rob Popich, who successfully argued Hymel v. Dir., OWCP, for the Employer and Carrier. The Fifth Circuit’s new, unreported Hymel decision is the third victory Mr. Popich earned in this case, having previously prevailed in front of an administrative law judge (“ALJ”), the Benefits Review Board (“BRB”), and now the Fifth Circuit.
Claimant, a longshoreman, filed a claim after he alleged injury as a result of a work-related incident wherein he was struck by a forklift. In accordance with the Longshoremen and Harbor Workers’ Compensation Act, a claimant is entitled to a presumption of application if he can establish 1) he suffered harm and 2) conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition. (See 33 U.S.C. § 920.) The employer then has the opportunity to rebut the presumption by presenting substantial evidence establishing the absence of a connection between the injury and the employment.
Through his presentation of evidence to the ALJ, Mr. Popich successfully rebutted the presumption in favor of the Claimant: the ALJ determined Claimant’s credibility was questionable, and his testimony was inconsistent. Based on this evidence, the ALJ found in favor of Employer and Carrier. The Claimant appealed to the BRB hoping to convince it that the ALJ’s finding of facts were not supported by substantial evidence or consistent with the law. However, the BRB affirmed the ALJ’s determination in favor of Employer and Carrier. Claimant then appealed to the Fifth Circuit.
The Fifth Circuit, being limited in its scope of review to consideration of errors of law, had to determine if the BRB adhered to its statutory standard review of factual determinations made by the ALJ.
Claimant first argued the ALJ’s characterization of witness testimony was improper; the ALJ had determined Claimant did not provide a medical provider with all of information necessary for a diagnosis when Claimant neglected to reveal he was previously injured due to an unrelated incident. The Fifth Circuit held that the ALJ did not, in fact, mischaracterize witness testimony, as the ALJ was in the best position to assess credibility and conflicting evidence. Second, Claimant argued the ALJ incorrectly found his testimony inconsistent. Again, the Fifth Circuit noted the ALJ was in the proper position to weigh the testimony of various witnesses, more than one of which recalled the work incident differently than Claimant. Third, Claimant alleged the introduction of personnel files were improper. In disagreeing with this argument, the Fifth Circuit noted the ALJ did not abuse their discretion in admitting this evidence, as it was not bound by traditional rules of evidence.
In reaching its conclusions, the Fifth Circuit looked to dicta of Avondale Indus., Inc. v. Dir., OWCP, 977 F.2d 186 (5th Cir. 1992) which stated that “[T]he ALJ’s decision need not constitute the sole inference that can be drawn from the facts . . . . As fact finder, the ALJ determines questions of credibility of witnesses and of conflicting evidence.” The ALJ had simply weighed the evidence and made a credibility determination, which the ALJ is entitled to do. Further, the Fifth Circuit noted the ALJ is not bound by formal rules of evidence; admissibility of evidence can depend solely on whether it is such evidence as a reasonable mind might accept as probative. In conclusion, the Fifth Circuit held that the BRB did not err in finding the ALJ’s determinations supported by substantial evidence and in accordance with the law.