Surell v. Hardee Sheet Metal ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID SURELL,
Petitioner,
v.
HARDEE SHEET METAL; LIBERTY
No. 96-2615
MUTUAL INSURANCE COMPANY;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(No. 94-2373)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
E. Paul Gibson, Allison A. Stover, RIESEN LAW FIRM, L.L.P.,
Charleston, South Carolina, for Petitioner. Stephen E. Darling, SINK-
LER & BOYD, P.A., Charleston, South Carolina, for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
David Surell appeals from the summary affirmance by the Benefits
Review Board ("BRB") of the Administrative Law Judge's ("ALJ")
denial of benefits under the Longshore and Harbor Workers' Com-
pensation Act (the "Act"), 33 U.S.C.A. §§ 901 to 950 (West 1986 &
Supp. 1996).1 The ALJ denied Surell's claim for temporary total dis-
ability benefits from October 20, 1989 (or February 6, 1990) until
April 7, 1990.2 Surell now contends that the ALJ erred by failing to
apply the presumption of coverage in § 920(a). Because the presump-
tion is inapplicable and because substantial evidence supported the
ALJ's determination that Surrell was not totally disabled, we affirm.
Section 920(a) provides that "[i]n any proceeding for the enforce-
ment of a claim for compensation under this chapter it shall be pre-
sumed, in the absence of substantial evidence to the contrary--(a)
That the claim comes within the provisions of this chapter." The pre-
sumption is one of "a causal connection between the injury to the
employee and his working conditions." See Noble Drilling Co. v.
Drake, 795 F.2d 478, 481 (5th Cir. 1986).
_________________________________________________________________
1 The BRB never addressed the merits of the appeal. On September 12,
1996, the BRB sent the parties a notice stating that pursuant to the provi-
sions of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the BRB relating to claims under the Act were deemed to have
been affirmed if the case had been pending before the BRB for one year
by September 12, 1996. Because Surell's appeal met these criteria, the
BRB informed the parties that the ALJ's decision had been effectively
affirmed by the BRB on September 12, 1996, for purposes of their rights
to obtain review in the court of appeals.
2 Surrell alternatively argues that if he is not entitled to temporary bene-
fits from October 1989 (the date he stopped working as a welder), then
he is at least entitled to benefits from February 1990 (the date he began
receiving "active medical care").
2
Here, Surell's injury and its relation to his employment is uncon-
tested. The contested issue is whether the injury totally disabled Sur-
rell for the relevant time period, and as such, the presumption in
§ 920(a) is inapplicable. Instead, Surrell bears the burden to show that
his disability prevented him from performing his regular employment.
See Newport News Shipbuilding v. Director, OWCP , 592 F.2d 762,
765 (4th Cir. 1979). Surell asserts that the medical reports of Dr. Tim-
othy Wagner and his own testimony regarding his pain satisfied his
burden of proof. We disagree.
Surell injured his neck and head in May 1989. He immediately
returned to work and continued working as a welder until October 1989.3
At the time he stopped working, he had not been treated for his condi-
tion since he saw Dr. Byron Williams in June 1989. Dr. Williams
advised Surell that he could return to all activities. Surell saw Dr.
Wagner in February 1990 and again in April 1990 (after he had
already returned to work). Dr. Wagner never placed any physical
restrictions on Surell's employment, and never suggested that Surell
was unable to perform welding work. In fact, the only limitations Dr.
Wagner ever set for Surell concerned his recreational weightlifting
activities. During the time periods for which Surell seeks benefits and
claims that pain prevented him from working as a welder, Surell only
sought medical treatment once--in February 1990. Before and after
that time period, Surell continuously worked as a welder, and since
returning to welding in April 1990, he has received several raises and
a promotion. Surell offered no medical evidence that his physical con-
dition changed from May 1989, the date of his initial injury, to Octo-
ber 1989, the date of his decision to stop working as a welder, to April
1990, the date of his decision to return to welding.
Therefore, we hold that the ALJ's finding that Surell failed to meet
his burden of showing that he was medically unable to work as a
welder was supported by substantial evidence. See See v. Washington
Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994) (standard
of review). Accordingly, we affirm. We dispense with oral argument
_________________________________________________________________
3 Although Surell testified that he stopped welding due to pain related
to his injuries, he also admitted that welding work had slowed after Hur-
ricane Hugo hit Charleston in September 1990 and that he was immedi-
ately hired as a hurricane damage estimator.
3
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
4