Michelle Horner, as beneficiary of the Estate of Gary Horner v. Cascade General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE HORNER, as beneficiary of
the Estate of Gary Horner; MICHELLE
HORNER, as personal representative of
the Estate of Gary Horner,
Petitioners,
v.
CASCADE GENERAL; VIGOR
INDUSTRIAL, LLC; AMERICAN
HOME ASSURANCE INSURANCE;
CHARTIS CLAIMS, INC.; SIGNAL
MUTUAL INDEMNITY
ASSOCIATION; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAM,
Respondents.
No. 14-73251
BRB No. 2013-0555
MEMORANDUM*
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted June 8, 2017
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
FILED
DEC 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Petitioner Michelle Horner (Horner), as the personal representative of the
estate of Gary Horner (Gary),1 petitions for review of the opinion of the Benefits
Review Board (Board) affirming the decision of an administrative law judge (ALJ)
setting compensation under the Longshore and Harbor Workers’ Compensation
Act (LHWCA) based on aggravation of Gary’s knee condition due to work-related
activities. Horner contends that an earlier injury onset date applied based on
complications stemming from Gary’s femur fracture and rod implant that
ultimately worsened his knee condition. According to Horner, the ALJ failed to
properly weigh medical evidence reflecting that Gary’s knee condition was
aggravated at an earlier date due to his femur fracture.
Substantial evidence supports the injury onset date determination made by
the ALJ and affirmed by the Board based on aggravation of Gary’s knee condition
when he returned to his work activities. See Gen. Constr. Co. v. Castro, 401 F.3d
963, 965 (9th Cir. 2005) (“Under the LHWCA, we review [the Board’s] decisions
for errors of law and for adherence to the substantial evidence standard. The
[Board] must accept the ALJ’s factual findings if they are supported by substantial
evidence. . . .”) (citations and internal quotation marks omitted). The ALJ
1 Petitioners have not challenged our prior order substituting Gary’s
daughter as the personal representative of his estate.
2

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sufficiently weighed the respective medical opinions of Dr. Jon C. Vessely and Dr.
Robert Wells in determining that Gary’s “increase in knee pain was nine months
after the femur fracture but only six weeks after resuming full duty at work” and
“[t]he change that coincided in time with the increased pain was [Gary’s] return to
full-duty work, not the femur fracture and repair.” Additionally, the ALJ
accurately observed that “Dr. Vessely declined to opine on whether [Gary’s] work
activities after April 2008 aggravated the pathology of [Gary’s] right knee because
he felt necessary testing was not done.” In sum, the ALJ considered the medical
evidence relevant to Gary’s knee condition and his determination was supported by
substantial evidence. See id.
PETITION DENIED.
3

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