Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1990)

Patrick MARSH, Petitioner,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; ToddPacific Shipyards Corporation; Aetna Casualty andSurety Company, Respondents.

No. 89-70191.

United States Court of Appeals, Ninth Circuit.

Submitted June 8, 1990.* Decided June 26, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


Petitioner Patrick Marsh appeals the Benefits Review Board's affirmance of the Administrative Law Judge's factual finding of no permanent disability. After careful review of the record, we affirm.

We accept as we must the ALJ's determination that the claimant was not credible. See Nardella v. Campbell Machine, Inc., 525 F.2d 46 (9th Cir. 1975). There is substantial evidence in the record. Dr. Craemer's report and testimony, if believed, satisfies this requirement. See Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327 (9th Cir. 1980) (review of BRB and ALJ for findings of fact is for substantial evidence).

The fact that Dr. Craemer's testimony differed from that set forth in his earlier medical report on the claimant does not require that the trier of fact reject that testimony. Dr. Craemer's explanation for why he initially felt there was some apportionment due after the 1981 injury is adequately set forth in the record. He evaluated the medical reports generated by the 1978 and the 1981 injuries, and explained how the improved technology of the later tests supported the reported symptoms as well as the actions taken after the earlier injury. He based the initial apportionment recommendation on the claimant's subjective evidence; but, " [f]rom the objective findings, the medical tests that I reviewed, there was no change. I will stand behind that."

The Benefits Review Board did not err in affirming the ALJ's finding of no permanent disability as a result of the 1981 injury.



The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3