Case: 09-20847     Document: 00511204326          Page: 1    Date Filed: 08/16/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 16, 2010
                                     No. 09-20847
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BIRGITT EYSSELINCK, Individually and as Next Friend of TE and NU,
minors, and Timothy A. Eysselinck, deceased,

                                                   Plaintiff - Appellant
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; RONCO CONSULTING GROUP; FIDELITY
AND CASUALTY COMPANY/CNA INTERNATIONAL,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-4589


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Birgitt Eysselinck’s husband, Timothy A. Eysselinck, committed suicide
while home on a leave of absence from his civilian job as a Task Leader for de-
mining operations in Iraq. She sought death benefits under the Longshore and
Harbor Workers’ Compensation Act, but her claim was denied at each
administrative level. The district court also denied relief. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20847   Document: 00511204326     Page: 2   Date Filed: 08/16/2010

                                 No. 09-20847

                        I. FACTUAL BACKGROUND
      The decedent was responsible for the overall administration and training
of certain personnel who would perform de-mining operation tasks in Iraq. This
included defusing or rendering inoperable unexploded ordinance such as cluster
bombs and improvised explosive devices. He returned home on February 21,
2004 on a three-month leave of absence. On April 23, 2004, he committed
suicide. Eysselinck claims entitlement to death benefits because the work-
related stress and dangerous nature of the decedent’s work caused him to suffer
Post Traumatic Stress Disorder (“PTSD”) leading to an irresistible impulse to
commit suicide.
      These claims are brought under the procedures of the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-50, as
extended by the Defense Base Act, 42 U.S.C. §§ 1651-54. An Administrative
Law Judge (“ALJ”) heard competing experts. Each expert reviewed records and
witness interviews. Neither had interviewed the decedent, nor were there any
contemporaneous medical treatment notes or records by a mental health care
professional. Thus, each expert was making a retrospective diagnosis of whether
the decedent suffered PTSD. The expert for the claimant stated the opinion that
the decedent must have suffered from PTSD related to his working conditions
because he could find no other cause. The other expert believed the available
evidence failed to establish that the decedent suffered from PTSD. Rather, the
decedent’s act was due to a combination of non-work related stressors, including
alcohol consumption.
      The ALJ concluded that the expert who found insufficient support for a
diagnosis of PTSD was more persuasive.       The decedent was found to have
willfully committed suicide, and benefits were denied. The Benefits Review
Board (“BRB”) affirmed. The district court subsequently denied the petition for
review of the BRB decision.

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                                  No. 09-20847

                                II. DISCUSSION
      Our review is of the BRB decision, not that of the district court.
“[A]ppellate court review need accord no particular deference to the district
court’s conclusion as to whether the identical administrative record does or does
not support the administrative determination. . . .” H.B. Zachry Co. v. Quinones,

, 477 (5th Cir. 2000) (quoting La. Envtl. Soc’y, Inc. v. Dole, 

, 119 (5th Cir. 1983)).
      We examine the BRB decision “to determine whether it has adhered to its
proper scope of review – i.e., whether the ALJ’s findings of fact are supported by
substantial evidence and are consistent with the law.” Gulf Best Elec., Inc. v.
Methe, 

, 603 (5th Cir. 2004) (citing H.B. 

).
      “Substantial evidence is that relevant evidence – more than a scintilla but
less than a preponderance – that would cause a reasonable person to accept the
fact finding.” Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of Labor v.
Ingalls Shipbuilding, Inc., 

, 305 (5th Cir. 1997). It is “evidence that
‘a reasonable mind might accept as adequate to support a conclusion.’” Hall v.
Consol. Emp’t Sys., Inc., 

, 1029 (5th Cir. 1998) (quoting Pierce v.
Underwood, 

, 565 (1988)).
      Civilian contractor employees working overseas are entitled to benefits
under the LHWCA. 42 U.S.C. § 1651(c). Even so, “[n]o compensation shall be
payable if the injury was occasioned solely by the intoxication of the employee
or by the willful intention of the employee to injure or kill himself or another.”
33 U.S.C. § 903(c). Eysselinck has the burden of proving the decedent’s suicide
was the result of an irresistible impulse to kill himself. To prove an irresistible
impulse, the claimant must produce expert opinion that the decedent suffered
from a mental disease or impairment that created the impulse leading to the
suicide. Voris v. Tex. Emp’rs Ins. Ass’n, 

, 931 (5th Cir. 1951).



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                                        No. 09-20847

       On appeal, Eysselinck argues there is substantial evidence in the record
to prove that the decedent suffered from PTSD 1 causing an irresistible impulse
to commit suicide, and the ALJ erred in finding the doctor it relied upon was
more credible. Extensive testimony was offered about the decedent’s work and
activities before his death. The ALJ found that the decedent had not been
exposed to life threatening situations in Iraq. After weighing both experts’
testimony, the ALJ concluded one was more credible than the other.
       A court may not reweigh or re-evaluate the evidence considered by the
ALJ. La. Ins. Guar. Ass’n v. Bunol, 

, 296 (5th Cir. 2000). “That the
facts may permit diverse inferences is immaterial. The [ALJ] alone is charged
with the duty of selecting the inference which seems most reasonable and his
choice, if supported by the evidence, may not be disturbed.” Presley v. Tinsley
Maint. Serv., 

, 436 (5th Cir. 1976) (citation omitted). We accept the
evidentiary choices made by the ALJ.
       Eysselinck also argues she was not granted the statutory presumption
that the decedent’s death was not willful. There is such a presumption, but it
applies only “in the absence of substantial evidence to the contrary . . . .” 33
U.S.C. § 920(d). This presumption’s “only office is to control the result where
there is an entire lack of competent evidence.” Del Vecchio v. Bowers, 

, 286 (1935).        The ALJ was presented with a voluminous record and
thoroughly reviewed all of the testimony and expert opinions. The presumption
does not control. See 

         In the alternative, Eysselinck argues that the decedent “at the least . . . suffered from
depression which could only have resulted from his service in Iraq. The ALJ and the [BRB]
did not formally consider this fact.” Although Eysselinck averred the decedent suffered from
depression, the issue before the ALJ was whether PTSD, not depression, could overcome the
voluntary intentions of the decedent’s suicide such that it could be described as involuntary.
She did not argue depression caused the suicide. There was substantial evidence to support
the ALJ’s decision.

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