IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-60727
Summary Calendar
_____________________
SUSAN MILLER, widow of James Michael
Miller; JAMES MICHAEL MILLER, II,
minor child; JAMIE MICHELLE MILLER,
minor child; NANCY JO MILLER, minor
child,
Petitioners,
versus
LAKE ARTHUR SHIPYARD; LIBERTY MUTUAL
INSURANCE COMPANY; DIRECTOR, OFFICE OF
WORKERS’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,
Respondents.
_________________________________________________________________
Petition For Review of an Order
of the Benefits Review Board
_________________________________________________________________
(93-1956)
May 21, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Petitioners Susan Miller, widow of James Michael Miller, and
Mr. Miller’s three minor children, James Michael Miller, II, Jamie
Michelle Miller, and Nancy Jo Miller appeal the Benefits Review
Board’s (“BRB”) affirmance of the Administrative Law Judge’s
*
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this opinion should not be published and is not precedent except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.
(“ALJ”) decision denying their claims under the Longshoremen and
Harbor Worker’s Compensation Act (“LHWCA”), 33 U.S.C. §§ 901, et
seq. Finding no error, we affirm.
I
James Miller fell and injured his back on October 15, 1980,
while employed as a painter at Lake Arthur Shipyards. He
immediately began receiving weekly LHWCA benefits in the amount of
$300 per week, which the respondent initially calculated from an
average weekly wage of $450 per week.1 Mr. Miller underwent five
back surgeries between April 1981 and March 1987, and was
hospitalized on numerous occasions due to severe back pain and
severe hypertension. Liberty Mutual, Lake Arthur Shipyards’s
insurer, paid for each operation and hospitalization, but later
recalculated and reduced Mr. Miller’s LHWCA payments to $160.93 per
week on July 28, 1983. It maintained that payment schedule,
without annual step increases, until Mr. Miller’s death on May 20,
1989, at which time Liberty Mutual terminated all benefits.
II
The Millers filed claims for death benefits and increased
disability compensation under the LHWCA. An ALJ held a formal
hearing and concluded that the respondents correctly determined Mr.
1
This amount was later determined to be an overpayment, which
the ALJ permitted Liberty Mutual to utilize as a set-off against
any liability determined in favor of the Millers.
2
Miller’s compensation rate of $160.93 under 33 U.S.C. § 910(c).
The ALJ further determined that Mr. Miller was permanently totally
disabled as of May 14, 1985, and thus entitled to annual step
increases in his compensation rate after that date, but that the
respondents could offset their liability for the increases against
their prior overpayments. The ALJ also held that none of Mr.
Miller’s later falls and injuries were caused by the October 1980
work-related fall and subsequent back injury. Furthermore, Mr.
Miller’s irresponsible physical conduct and a 1985 injury were
determined to constitute intervening causes of Mr. Miller’s
ultimate total disability. Thus, the ALJ held that the respondents
were discharged from any liability for medical benefits or
disability compensation arising from the October 1985 injury.
Finally, the ALJ determined that the petitioners were not due death
benefits because any causal relationship between the October 1980
work-related injury and Mr. Miller’s death in 1989 of a heart
attack was too tenuous to support such a finding of liability. The
BRB affirmed the ALJ’s decision pursuant to the provisions of
Public Law 104-134.2 The petitioners now appeal.
III
2
Public Law 104-134 provides that appeals to the BRB that have
been pending for more than one year shall be considered affirmed by
the Board if not acted upon before September 12, 1996. See Omnibus
Appropriations for Fiscal Year 1996, Pub.L. No. 104-134, § 101(d),
110 Stat. 1321-219 (enacted 1996).
3
We review a decision of the BRB under the same standard it
employs to review a decision of the ALJ3: whether the decision
contains any errors of law and if the factual findings are
supported by substantial evidence. New Thoughts Finishing Co. v.
Chilton, 118 F.3d 1028, 1030 (5th Cir. 1997); Mendoza v. Marine
Personnel Co., 46 F.3d 498, 500 (5th Cir. 1995). “Substantial
evidence is evidence that provides ‘a substantial basis of fact
from which the fact in issue can be reasonably inferred . . . more
than a scintilla . . . more than create a suspicion . . . such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Avondale Indus., Inc. v. Director, Office
of Workers’ Compensation Programs, 977 F.2d 186, 189 (5th Cir.
1992) (quoting cases). This evidentiary standard is less exacting
than the preponderance of the evidence standard. Chilton, 118 F.3d
at 1030 (citing Avondale, 977 F.2d at 189).
Moreover, as the fact-finder, the ALJ may consider all
credibility inferences and his “selection among inferences is
conclusive if supported by the evidence and the law.” Mendoza, 46
F.3d at 500; Chilton, 118 F.3d at 1030 (noting ALJ’s decision need
not constitute sole inference that may be drawn from facts). We
may not reweigh the evidence or substitute our judgment for that of
3
Since the BRB actually issued no written findings of fact or
conclusions of law, see supra note 2, our references shall be to
the written opinion issued by the ALJ.
4
the ALJ. SGS Control Servs. v. Director, Office of Worker’s
Compensation Programs, 86 F.3d 438, 440 (5th Cir. 1996). Finally,
as is directly pertinent to one issue in this case, the ALJ may
accept any part of an expert’s testimony or reject it entirely.
Mendoza, 46 F.3d at 501.
IV
A
The petitioners complain that the ALJ erred in his
calculations of Miller’s average weekly wage. The ALJ utilized the
formula provided in 33 U.S.C. § 910(c) to uphold the respondents’
reduction of weekly benefits from $300 to $160.93. The ALJ did so
after discounting the testimony of the petitioners’ rehabilitation
specialist, Mr. Glenn M. Hebert, and concluding that Mr. Miller’s
W-2 form was the only credible evidence of income. The petitioners
contend that § 910(b) sets out the more proper standard. Section
910 provides in relevant part:
Except as otherwise provided in this chapter, the
average weekly wage of the injured employee at the time
of the injury shall be taken as the basis upon which to
compute compensation and shall be determined as follows:
(b) If the injured employee shall not have worked in
such employment during substantially the whole of such
year, his average annual earnings, if a six-day worker,
shall consist of three hundred times the average daily
wage or salary, and, if a five-day worker, two hundred
and sixty times the average daily wage or salary, which
an employee of the same class working substantially the
whole of such immediately preceding year in the same or
in similar employment in the same or a neighboring place
5
shall have earned in such employment during the days when
so employed.
(c) If either of the foregoing methods of arriving
at the average annual earnings of the injured employee
cannot reasonably and fairly be applied, such average
annual earnings shall be such sum as, having regard to
the previous earnings of the injured employee in the
employment in which he was working at the time of the
injury, and of other employees of the same or most
similar class working in the same or most similar
employment in the same or neighboring locality, or other
employment of such employee, including the reasonable
value of the services of the employee if engaged in self-
employment, shall reasonably represent the annual earning
capacity of the injured employee.
33 U.S.C. § 910.
The petitioners contend that the evidence they submitted in
the hearing before the ALJ allows the use of subsection 910(b) for
the calculation of Mr. Miller’s average earnings and that Fifth
Circuit law, as set out in Newport Shipbuilding & Repair, Inc. v.
Roundtree, permits the use of 910(c) only when neither (a) nor (b)
may be applied fairly and reasonably. 698 F.2d 743 (5th Cir.
1983). Glenn M. Hebert, accepted as an expert witness for the
petitioners, testified as to the reasonable average weekly wage of
a shipyard spray painter in southern Louisiana for 1979 through
1981. The petitioners submit that the ALJ’s reliance on Mr.
Miller’s one-week paycheck under the formula set out in § 910(c)
was error in the light of this expert testimony.
The parties agree that subsection (a), which relies upon the
employee’s wages during the prior year, is inapplicable because Mr.
6
Miller was not employed as a shipyard spray painter “during
substantially the whole of the year immediately preceding his
injury.” 33 U.S.C. § 910(a). Subsection (b) bases its method of
calculation upon the prior year’s wages of coworkers who performed
the same or similar work. Subsection (c), in contrast with (a) and
(b), looks not to the actual prior wages, but to the employee’s
earnings potential at the time of injury. Roundtree, 698 F.2d at
745.
We have interpreted the statutory framework of § 910 of the
LHWCA to indicate a congressional intent to favor as a method of
calculating an employee’s average weekly wage that formula set out
in (a) over that in (b), (b) over (c), and (c) to be utilized as a
“catch-all” when neither (a) nor (b) may be “reasonably and fairly”
applied. SGS Control Servs. v. Director, Office of Worker’s
Compensation Programs, 86 F.3d 438, 441 (5th Cir. 1996); Empire
United Stevedores v. Gatlin, 936 F.2d 819, 821 (5th Cir. 1991);
Roundtree, 698 F.2d at 748-49. Thus, we have deemed subsection (c)
appropriate when the employee’s work is seasonal or otherwise
intermittent and when “‘otherwise harsh results’ would follow were
an employee’s wages invariably calculated simply by looking at the
previous year’s earnings.” Gatlin, 936 F.2d at 822; Roundtree, 698
F.2d at 750-51. We have also noted approvingly the use of
subsection (c) when the proper application of subsections (a) and
7
(b) is stymied by the presentation of insufficient evidence at the
hearing. Roundtree, 698 F.2d at 751.
The ALJ determined that the petitioners failed to present
sufficiently concrete evidence to permit the application of (a) or
(b). As noted earlier, subsection (b) requires proof of the
average daily wage of an employee “of the same class” who worked
substantially the entire immediately preceding year “in the same or
in similar employment in the same or a neighboring place.” 33
U.S.C. § 910(c). The ALJ discredited Hebert’s testimony as “too
vague, too speculative, and too lacking in specificity and other
indicia of reliability to provide either a reliable basis for
[those] basic and critical premises or to provide the requisite
evidentiary concreteness.” This determination by the ALJ was not
error.
Hebert based his testimony--that $450 per week was the
reasonable average weekly wage for shipyard spray painters in 1979
and 1980--on telephone surveys that he conducted of shipyards in
southern Louisiana. He testified that he telephoned six specific
shipyards in Louisiana and Mississippi, spoke with different
individuals in the shipyards’ personnel offices, and inquired of
that person’s present recollection of industry conditions in 1979
and 1980. Some of the individuals had been employed in the
personnel offices in 1980 and others had not. He also testified
8
that he obtained certain employment data from the Baton Rouge
Research and Development Section of the Louisiana State Employment
Security office. Hebert failed to consider Miller’s actual wages
and hours when employed by the Lake Arthur Shipyard, nor did he
review any actual earnings records.4 Furthermore, the ALJ noted
that he did not reference the actual wage records of any specific
shipyard employee whose employment might have been comparable to
Miller’s.
Hebert’s research and testimony is insufficient to demonstrate
the specifics required under subsection (b). There is no proof
that the data gathered by Hebert pertains to an employee (1) “of
the same class” as Miller, (2) who worked “substantially the whole
of such immediately preceding year” (3) “in the same or in similar
employment” (4) “in the same or a neighboring place.” The ALJ
properly discounted Hebert’s testimony as providing an insufficient
basis for application of subsection (b). Based on the evidence
that was before him, the ALJ correctly determined that subsection
(c) provided the appropriate formula for calculating Miller’s
annual wages.
B
4
Evidence of even one worker’s pay records would have
fulfilled the statutory requirement. Roundtree, 698 F.2d at 750.
9
The petitioners contend, in the alternative, that Hebert’s
testimony concerning wages of shipyard sprayers in 1979 and 1980
should be employed under the calculation set out in (c). They
maintain that Hebert’s figures, integrated into subsection (c)’s
formula, also produce an annual wage of $450 per week.
Subsection (c) focuses on the injured employee’s earning
capacity at the time he sustained his injury. “[T]he ALJ must make
a fair and accurate assessment of the injured employee’s earning
capacity--the amount that the employee would have the potential and
opportunity of earning absent the injury.” Gatlin, 936 F.2d at
823. The ALJ may look to three sources of information in
determining the employee’s potential for earnings: (1) the injured
employee’s previous earnings in the employment he held at the time
of injury; (2) previous earnings of other employees in the “same or
most similar class” who enjoyed the “same or most similar
employment in the same or neighboring locality”; and (3) the
injured employee’s previous earnings from other employment. 33
U.S.C. § 910(c). Unlike subsections (a) and (b), subsection (c)
does not premise the average weekly wage calculation solely on the
actual earnings of the employee or of other similarly situated
employees, but merely provides that such evidence is one of several
possible factors to be considered. Gatlin, 936 F.2d at 823.
10
The ALJ noted these considerations, but ultimately determined
that Mr. Miller’s record of employment for eight days with the
shipyard was the only credible evidence of earnings in the case.
The petitioners presented no substantial evidence of Mr. Miller’s
earnings (or willingness to work) prior to his employment by the
shipyard, nor any evidence of what might have prevented him from
working. The ALJ had previously discounted Hebert’s testimony as
too speculative and we again find no error in this decision. The
only credible evidence of earnings before the ALJ consisted of Mr.
Miller’s W-2 forms memorializing his eight days of employment with
Lake Arthur Shipyard. We deem this proof sufficient to support the
ALJ’s determination of Mr. Miller’s average weekly wage under the
formula prescribed in subsection (c). Thus, the determination that
Miller’s average weekly wage was $241.41, resulting in a temporary
total disability compensation rate of $160.93, is supported by
substantial evidence.
C
i
The petitioners maintain that the ALJ correctly determined
that Mr. Miller was totally permanently disabled as of May 14,
1985, and that this classification entitled him to annual step
11
increases from that date until his death in 1989.5 They assert,
however, that the increases should be calculated from a beginning
benefits rate of $300 per week. The ALJ determined that Mr. Miller
was entitled to compensation for permanent total disability
resulting from his 1980 work-related injury at the rate of $160.936
per week with annual step increases beginning October 1985 through
October 1988.7 The ALJ further held, however, that the respondents
could offset their liability for the annual increases against their
initial overpayments from 1980 until 1983.
ii
The respondents challenge the ALJ’s determination that Mr.
Miller suffered a compensable total permanent disability because of
a work-related injury.8 The ALJ’s determinations are supported by
5
Section 10(f) provides for annual step increases in the
amount of disability compensation upon proof of permanent total
disability. 33 U.S.C. § 910(f). The respondents never classified
Mr. Miller as permanently disabled and thus never increased his
rate of compensation.
6
We have already held that the ALJ’s determination that Mr.
Miller’s average weekly wage was $160.93 is supported by
substantial evidence and we decline to readdress this issue.
7
Where warranted, the LHWCA provides for annual increases
effective October 1 of any particular year. 33 U.S.C. § 910(f)(1).
8
From the record before this court, it appears that the
respondents did not petition this court for review. The governing
statutory provision provides that
Any person adversely affected or aggrieved by a final
order of the Board may obtain a review of that order in
the United States court of appeals for the circuit in
12
which the injury occurred, by filing in such court within
sixty days following the issuance of such Board order a
written petition praying that the order be modified or
set aside.
33 U.S.C. § 921(c); see also 20 C.F.R. § 802.410(a) (“Within 60
days after a decision by the Board has been filed . . ., any party
adversely affected or aggrieved by such decision may file a
petition for review with the appropriate U.S. Court of Appeals . .
. .”). The filing of a petition by an appropriate party provides
this court with jurisdiction over the proceeding and we “have the
power to give a decree affirming, modifying, or setting aside, in
whole or in part, the order of the Board and enforcing same to the
extent that such order is affirmed or modified.” 33 U.S.C. §
921(c).
The question facing this court is whether we have jurisdiction
under the LHWCA to grant relief to a party that did not petition
for review. The respondents were adversely affected by the ALJ’s
determination that Mr. Miller was entitled to step increases, but
they failed to follow the process statutorily outlined for them to
receive relief--they did not file a petition. This failure appears
to be fatal to their request for relief from the ALJ’s
determination.
Not only does the language of the Code and the regulations
quoted supra support this interpretation, but the federal rules of
appellate procedure reinforce our view. Rule 15 sets out the
procedure for gaining review of an agency order. Fed.R.App.P. 15;
see Ingalls Shipbuilding v. Director, OWCP, 117 S.Ct. 796, 806
(1997) (“Rule 15(a) clearly applies to appeals from the Benefits
Review Board . . . .”). The rule provides that a petition must be
filed with the clerk of the appropriate court of appeals, that the
petition must name each party seeking review, that the petition
must designate the respondent “and the order or part thereof to be
reviewed.” Fed.R.App.P. 15(a). Based on the language of the law
before us, and on the analogous situation when a party fails to
file a notice of appeal, it appears that we are without
jurisdiction to grant relief to the non-petitioning respondents.
See Fed.R.App.P. 4; Marts v. Hines, 117 F.3d 1504, 1506-19 (5th
Cir. 1997) (Garwood, J., dissenting).
Nevertheless, as the parties did not brief this issue and our
own research unearthed no controlling precedent, we may pretermit
the jurisdictional issue because the respondents’ challenge is
meritless, as discussed infra. United States v. McGill, 74 F.3d
64, 66 (5th Cir. 1996); United States v. Weathersby, 958 F.2d 65,
13
substantial evidence and the respondents are entitled to no relief
on the merits. The ALJ concluded that Mr. Miller reached maximum
medical improvement after his 1980 work-related injury on May 14,
1985. Two physicians determined that Mr. Miller suffered a 25%
impairment to his whole body as of 1985, and this evidence was not
contradicted by the respondents. Dr. Phillips, an orthopedic
surgeon, noted Mr. Miller’s 25% impairment after an examination in
April 1984 and further determined that Mr. Miller would not be able
to return to his prior employment. Dr. Gunderson, an orthopedic
surgeon and Mr. Miller’s treating physician, posited that Mr.
Miller reached maximum medical improvement as of May 14, 1985, and
similarly assigned a 25% disability to Mr. Miller’s whole body.
Substantial evidence thus supports the ALJ’s determination that Mr.
Miller reached maximum medical improvement on May 14, 1985, and
that he suffered under a 25% permanent impairment to his whole
body.
66 (5th Cir. 1992) (citing Norton v. Mathews, 427 U.S. 524, 532, 96
S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976) (“‘In the past, we
similarly have reserved difficult questions of our jurisdiction
when the case alternatively could be resolved on the merits in
favor of the same party.’”), quoted in Texas Employers’ Ins. Ass’n
v. Jackson, 862 F.2d 491, 497 n.8 (5th Cir. 1988) (en banc), cert.
denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989));
Pierce v. Winograd, 757 F.2d 714, 716 (5th Cir. 1985)
(pretermitting mootness issue); Koehring Co. V. Hyde Constr. Co.,
324 F.2d 295, 296 (5th Cir. 1963) (pretermitting jurisdictional
question).
14
The ALJ further held that the permanent impairment resulted
from Mr. Miller’s 1980 work-related injury and was thus
compensable. The LHWCA provides for compensation to be paid to an
employee who suffers an accidental injury or death that arises out
of and in the course of employment. 33 U.S.C. §§ 902(2), 903. The
test is one of causation in fact--whether the employment caused the
injury. Shell Offshore, Inc. v. Director, Office of Worker’s
Compensation Programs, 122 F.3d 312, 316 (5th Cir. 1997); Bludworth
Shipyard, Inc. v. Lira, et al., 700 F.2d 1046, 1049 (5th Cir.
1983). Proximate cause, as that concept is employed in tort law,
is generally not applicable in the LHWCA setting. Shell Offshore,
122 F.3d at 316; Bludworth Shipyard, 700 F.2d at 1050.
This is because proximate cause analysis in a typical
tort case focuses on the question whether a party, in the
conduct of his everyday affairs, should be held legally
responsible for remote consequences of his acts. The
inquiry under the LHWCA is much narrower. The court’s
sole function is to determine whether the injury
complained of was one “arising out of” the employment.
Once causation in fact is established, with only a few
exceptions, the court’s function is at an end.
Bludworth Shipyard, 700 F.2d at 1050.
The allegation of a supervening, independent cause of the
claimed injury is one such exception. Shell Offshore, 122 F.3d at
316; Bludworth Shipyard, 700 F.2d at 1050. We have previously
noted that this Circuit has articulated different definitions of
what may constitute a supervening, independent cause. Shell
15
Offshore, 122 F.3d at 316. One standard requires an influence
originating entirely outside of employment that effectively
overpowers and nullifies the initial injury. Id. (citing Voris v.
Texas Employers Ins. Ass’n, 190 F.2d 929, 934 (5th Cir. 1951)).
The second standard allows for severance of causation if the
subsequent event merely “worsens” the initial injury. Id. (citing
Mississippi Coast Marine v. Bosarge, 637 F.2d 994, 1000 (5th Cir.
1981)).
The ALJ determined that no supervening, independent cause
contributed to Mr. Miller’s impairment before May 14, 1985, and
that Mr. Miller’s 25% permanent disability therefore constituted a
compensable injury. This finding is supported by substantial
evidence under either standard. Mr. Miller’s initial back injury
focused at the L4-5 and L5-S1 levels. Although Mr. Miller suffered
subsequent injuries after the October 1980 injury and before
May 14, 1985, none disrupted the causation chain or expanded his
initial injury outside the originally affected back area.
Substantial evidence supports the ALJ’s determination that Mr.
Miller was permanently partially disabled as of May 14, 1985, and
that the disability arose out of and in the course of his
employment.
Due to the permanent partial disability, the ALJ further
concluded that Mr. Miller could not return to his prior employment.
16
This finding, supported by substantial evidence, made a prima facie
case for legal total disability. SGS Control Servs., 86 F.3d at
444; Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 126 (5th
Cir. 1994) (“Whereas maximum medical improvement is the indication
of permanent versus temporary disability, the availability of
suitable alternative employment distinguishes partial from total
disability.”; citing 33 U.S.C. §902(10)). In order to lessen their
compensation liability, the burden then shifted to the respondents
to demonstrate that Mr. Miller could have performed suitable
alternative work or that such employment was available. SGS
Control Servs., 86 F.3d at 444 (noting employer must establish
employee is “capable of performing . . . other realistically
available jobs”). They presented no such evidence. Thus, Mr.
Miller, although only medically permanently partially disabled as
of May 14, 1985, became legally entitled to total disability
benefits as of that date. Id.; Abbott, 40 F.3d at 126; see also
Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035
(5th Cir. 1990) (en banc) (noting LHWCA does not provide for 10(f)
adjustments for period of temporary total disability). The ALJ’s
decision awarding the petitioners permanent total disability
benefits as of May 14, 1985, is supported by substantial evidence.9
9
After May 1985, Mr. Miller suffered subsequent injuries and
endured several operations that ultimately left him physically
17
D
The petitioners’ final argument is that Mr. Miller’s 1980
work-related injury had a sufficient causal relationship to his
death nine years later to warrant payment of death benefits. The
cause of death was hypertensive and atherosclerotic cardiovascular
disease. The petitioners’ argument proceeds in the following
manner: Miller suffered a work injury that aggravated his pain;
the pain increased his high blood pressure; the high blood pressure
aggravated his pre-existing atherosclerotic disease; the
aggravation of his disease in turn hastened his death.
The LHWCA provides that compensation be paid for “death
arising out of and in the course of employment.” 33 U.S.C.
§ 902(2). Some of our older cases have held that an injury that
merely hastens death may be regarded as actually causing it.
Calbeck v. Strachan Shipping Co., 306 F.2d 693, 695 (5th Cir.
1962); Southern Stevedoring Co. v. Henderson, 175 F.2d 863, 866
permanently totally disabled as of July 17, 1987. Specifically,
the ALJ determined that Mr. Miller injured his back in October 1985
at the L3-4 level, that this injury was not work-related, and that
it constituted a supervening cause of Mr. Miller’s ultimate
permanent total disability. Mr. Miller exacerbated the October
1985 injury with intentional misconduct such as lifting a washing
machine, a 35-pound amplifier, and a refrigerator. The ALJ held
that this misconduct also acted as supervening causes. Shell
Offshore, 122 F.3d at 316. The ALJ thus determined that the
respondents were not liable for compensation related to the 1985
injury at the L3-4 level. This finding is supported by substantial
evidence.
18
(5th Cir. 1949) (“since to hasten one’s death is to cause it”).
Thus, it appears that the petitioners would be entitled to death
benefits if Mr. Miller’s 1980 work-related injury hastened his
death.
The ALJ found no such causal relation and we must determine
whether that finding is supported by substantial evidence. The ALJ
relied to a significant degree on the observations of Dr. Lawrence
O’Meallie, a board-certified internist and cardiac specialist. Dr.
O’Meallie, the only cardiologist who rendered an opinion in this
case, stated that there was no causal relationship between Mr.
Miller’s exacerbated hypertension and his death. The heart
specialist posited that Mr. Miller’s underlying coronary disease--
atherosclerosis--caused his death. He stated that it is “the
underlying disease process [of hypertension] that’s causing the
acceleration of the coronary disease, not the back that’s causing
the blood pressure that’s causing the atherosclerosis.” He
concluded that even if Mr. Miller’s back pain did cause his blood
pressure to increase episodically, any evidence of a causal
relationship between those increases and Mr. Miller’s sudden death
was too speculative to warrant imposition of liability.
Dr. O’Meallie’s opinion directly contradicted those of Mr.
Miller’s treating physicians, Dr. Grovenburg and Dr. Shirley. Both
of those physicians submitted that Mr. Miller’s severe back pain
19
increased his hypertension which, in turn, aggravated the heart
disease that eventually killed him. The ALJ noted, however, that
the record contained no evidence indicating that Mr. Miller’s
hypertension was diagnosed as medically significant between 1980
and October 1985. As previously noted, Mr. Miller suffered an
supervening back injury in October 1985 at the L3-4 level. Dr.
Grovenburg did not treat Mr. Miller for severe labile hypertension
until 1988 and 1989--after Mr. Miller’s supervening 1985 injury and
his flagrant physical misconduct. Thus, the ALJ determined that
even if Mr. Miller’s back pain was causally related to his death,
supervening incidents destroyed any causal relationship between his
1980 work-related incident and his back pain suffered after his
nonwork-related injury of October 1985. See Mendoza, 46 F.3d at
501 (“[W]here the testimony of medical experts is at issue, the ALJ
is entitled to accept any part of an expert’s testimony or reject
it completely.”).
Finally, the ALJ noted that nine years had passed between the
1980 injury to Mr. Miller’s back and his death in 1989. Based on
the evidence before him, the ALJ deemed any causal relation too
tenuous to support an award of death benefits. This finding is
supported by substantial evidence.
E
20
Substantial evidence supports the ALJ’s denial of the
respondents’ request for section 8(f) relief. 33 U.S.C. § 908(f).
V
The ALJ’s determinations are supported by substantial evidence
and, for the foregoing reasons, the decision of the Benefits Review
Board is
A F F I R M E D.
21