UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-60002
____________________
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR,
Petitioner-Respondent,
versus
VESSEL REPAIR, INC.; ITT HARTFORD COMPANY,
Respondents-Petitioners,
versus
PEDRO T. VINA,
Respondent.
_________________________________________________________________
Petitions for Review of an Order
of the Benefits Review Board
_________________________________________________________________
February 22, 1999
Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Chiefly at issue in these challenges to a Benefits Review
Board decision involving Vessel Repair’s liability to its injured
employee, Pedro Vina, under the Longshore and Harbor Workers’
Compensation Act, and its entitlement from the LHWCA second-injury
fund administered by the Office of Worker’s Compensation Programs
(OWCP), is when Vessel Repair could have “reasonably anticipated”
that fund’s liability. Substantial evidence supports the
administrative law judge’s finding that such reasonable
anticipation arose after the consideration of the claim by the OWCP
district director. Also at issue are whether Vina’s prior injury
was “manifest” in a medical record prior to his employment-related
injury; whether that employment-related injury caused his permanent
partial disability; and the extent of his subsequent employment
opportunity. We DENY the petitions.
I.
Vina, born in 1943, injured his neck and back in 1986; was
treated by Dr. Ramos; and was unable to work for nearly a year. In
1988, he began work for Vessel Repair, a ship repair facility in
Port Arthur, Texas. In April 1992, while entering a barge to
perform welding work, Vina fell, re-injuring his back and neck.
Vina was examined by two orthopedic surgeons. Dr. Iceton
primarily treated Vina, seeing him several times between June 1992
and February 1993. In May 1993, Dr. Teuscher examined Vina at
Vessel Repair’s request. It was evident to both doctors that the
injury exacerbated a prior degeneration of Vina’s back and neck.
Vina did not, however, tell either doctor about the 1986 injury.
The doctors agreed that Vina had reached maximum medical
improvement in October 1992.
At that time, October 1992, Dr. Iceton had given Vina a “light
duty slip”, allowing him to return to work with lifting
restrictions. But, Vina was told by a Vessel Repair supervisor
that there was no work for him, and he never returned. (In March
2
1994, Vina performed some work for neighbors, but stopped because
of neck and back pain.)
Vina applied for compensation under the LHWCA. Vessel Repair
did not contest compensation for his temporary total disability
from April to October 1992. But, it controverted his entitlement
to permanent partial disability. The case was referred to the
Office of Administrative Law Judges (OALJ) in October 1993.
In June 1994, two days before the discovery deadline and
approximately two weeks before the scheduled hearing before the
ALJ, Vessel Repair first learned of the existence of Vina’s 1986
injury and his treatment by Dr. Ramos, who had since died. In
particular, Vessel Repair first learned of a medical report by Dr.
Ramos establishing the existence of Vina’s prior injury and pre-
existing condition. Accordingly, that July, Vessel Repair
presented a second-injury fund claim under LHWCA § 8(f), 33 U.S.C.
§ 908(f), to both the ALJ and the OWCP district director. The
district director denied the claim as untimely.
Earlier, when Dr. Teuscher, at Vessel Repair’s request, had
assessed the permanent injury in May 1993, he stated that “it is
difficult to accurately quantify that portion which was preexisting
and that portion which is attributable to his current injury”.
Later, however, upon viewing the 1987 x-rays taken for Dr. Ramos
after the 1986 injury, Dr. Teuscher modified his opinion. He saw
no difference between the x-rays before and after the 1992 injury,
3
and therefore considered that there was no objective basis for
different employment restrictions before and after that accident.
On the other hand, Dr. Iceton testified that, while he could
not apportion causation of permanent disability between the 1992
injury and Vina’s prior condition, each was a cause; and that
knowing the details regarding the 1986 injury would not change this
assessment, because he had inferred a prior degenerative disc
disease without such information.
Dr. Teuscher was unable with medical tests to confirm Vina’s
complaints of pain. He indicated, however, that Vina may require
permanent work restrictions because of his reports of pain. Dr.
Iceton found Vina’s complaints credible and his behavior consistent
with such pain. And, Vina testified that he suffered much more
serious pain two years after the 1992 injury than he did before it.
Two vocational experts, Quintanilla and Kramberg, assessed
Vina’s employment prospects. Based on an interview of Vina, a
review of his medical records, and research into the job market in
the Port Arthur area, Quintanilla estimated that several sorts of
jobs would be appropriate; he identified 11 particular jobs.
Kramberg testified, however, that all but two of those jobs were
inappropriate given Vina’s inability to speak, read or write
English; the lifting and gaze restrictions specified by Drs. Iceton
and Teuscher; the location of the jobs; or other factors. In fact,
Kramberg had doubts about the remaining two jobs.
4
In October 1995, the ALJ ruled in favor of Vina regarding the
causation of permanent partial disability by the 1992 accident. As
for future employment, the ALJ substantially agreed with Kramberg’s
conclusion. The ALJ assessed Vina’s residual weekly earning
capacity and found Vessel Repair eligible for § 8(f) relief,
thereby transferring its liability beyond the first 104 weeks of
permanent disability payments to the OWCP second-injury fund.
The Benefits Review Board (BRB) agreed, except for the
assessment of residual earning capacity (it decided that the 1992
minimum wage should have been used, without inflation adjustment).
II.
We review BRB decisions de novo, applying the same standard as
the Board and so upholding an ALJ’s decision when in accordance
with law and supported by substantial evidence. 33 U.S.C. §
921(b)(3); e.g., New Thoughts Finishing Co. v. Chilton, 118 F.3d
1028, 1030 (5th Cir. 1997).
A.
Vessel Repair asserts, first, that Vina’s permanent disability
was not due to his 1992 injury; second, that the ALJ erred in
finding only minimum-wage employment available. Vina points to
conflicting evidence before the ALJ supporting his position and
which the ALJ chose to credit.
5
1.
In contending that the 1992 accident did not cause any portion
of Vina’s permanent disability, Vessel Repair maintains that such
disability was due solely to prior degeneration, and particularly
to the 1986 injury.
Preliminarily, we dismiss Vessel Repair’s suggestion that the
ALJ did not engage in a consideration of all of the medical
evidence regarding causation, or that the ALJ applied the “true
doubt rule” repudiated in Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994). The ALJ’s opinion summarizes exhaustively the
evidence and assesses its credibility in detail. Whether Vina’s
1992 injury caused his disability is discussed at length and with
a full consideration of all the evidence.
Pointing to the testimony of Dr. Teuscher, who, upon viewing
Dr. Ramos’ records concerning the 1986 injury, revised his earlier
agreement with Dr. Iceton on causation, Vessel Repair asserts that
Dr. Iceton substantially agreed with Dr. Teuscher, and that no
substantial evidence suggests that the 1992 injury contributed to
Vina’s disability. However, Dr. Iceton was not equivocal regarding
causation of permanent injury: while he could not determine how
much the prior condition and the 1992 injury each contributed to
permanent disability, both were factors. Regarding Vina’s
permanent impairment, Dr. Iceton stated plainly that “some of it
was caused by the [1992] accident”.
6
And, Dr. Teuscher was less emphatic than Vessel Repair
suggests. His only unequivocal testimony on causation was that the
1992 injury was not the sole cause of Vina’s disability, which is
undisputed. The only legally relevant question is whether the 1992
injury is a cause of that disability.
Dr. Teuscher stated that, as a physician, he would place no
work restrictions on Vina as a result of the 1992 injury; but, he
then allowed that additional restrictions would be appropriate “on
a symptomatic basis”, i.e., because of Vina’s pain. In addition,
when asked whether Vina’s symptoms of pain were caused by the 1992
injury, the doctor replied: “the issue here is that I don’t have
an explanation for his source of pain”.
Independent of the medical testimony, the ALJ also credited
Vina’s testimony in July 1994 of present pain greater than that
suffered before the 1992 injury. Dr. Iceton also found Vina’s
reports of pain credible in the light of his repeated medical
examinations. While the tests Dr. Teuscher performed did not
corroborate Vina’s pain, neither did he state that it did not
exist; he conceded that permanent disability could be based upon
it. Vessel Repair does not dispute that “a finding of disability
can be based on nothing more than a claimant’s credible reports of
pain”. Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944
(5th Cir. 1991) (quoting this statement of the law by the ALJ and
reinstating his order relying upon it).
7
Citing Consolidation Coal Co. v. OWCP, 54 F.3d 434, 438 (7th
Cir. 1995), Vessel Repair questions the ALJ’s reliance on Dr.
Iceton being Vina’s treating physician and seeing him several
times, while Dr. Teuscher only saw him once. But, that case
involved an ALJ who conceded that evidence was equally weighted;
the Seventh Circuit referred to cases disparaging a “mechanical
determination” favoring a treating physician’s opinion and the
treatment of physicians’ views as “necessarily” weightier than a
specialist’s. Id. at 438.
Here, the ALJ explained why more extended examination of the
patient would render more reliable a doctor’s assessment of the
patient’s subjective pain and its cause. In sum, substantial
evidence supports the ALJ in crediting Vina’s testimony and Dr.
Iceton’s repeated observations of him over Dr. Teuscher’s
inferences from x-rays and a single interview.
2.
In challenging the future employability decision, Vessel
Repair raises several questions regarding Kramberg’s assessment,
referring, for instance, to his not explaining to whom he talked in
investigating two of the job possibilities identified by the other
expert (Quintanilla), and to Kramberg’s “cleverly ambiguous and
unverifiable comments”. However, such concerns should have been
8
directed to Kramberg, or answered with evidence to contradict his
testimony.*
Vessel Repair introduced no response or explanation to rebut
Kramberg’s assessment of Vina’s job prospects. Accordingly, there
is substantial evidence to support the ALJ’s future employment
finding.
B.
The DOWCP challenges second-fund injury liability, covered by
LHWCA § 8(f), 33 U.S.C. § 908(f): subject to certain exceptions,
where an employee has pre-employment permanent partial disability
and then, during employment, suffers an injury increasing that
disability, the employer’s liability is limited to 104 weeks of
coverage, with the remainder paid from a special fund.
Courts have added a “manifest” requirement. “To satisfy the
requirements of section 8(f), this court has required an employer
to prove that the claimant's pre-existing permanent partial
disability was ‘manifest’ to the employer prior to the current
*
In one case of the identification of contact persons, such a
question was asked — and answered – during Kramberg’s testimony.
Vessel Repair asked, concerning Allied Fabrication and Welding,
whether Kramberg had spoken to Damon, “the person that worked on
the computer in the office”; and Kramberg answered “That’s
correct”. Now, however, Vessel Repair complains, concerning the
same employer, that Kramberg “does not identify the individual with
whom he spoke, so that his comments could be verified”. Concerning
Tubal-Cain Industries, Vessel Repair maintains that Quintanilla
identified the person to whom he spoke, Judice, but Kramberg did
not. However, in his deposition, Kramberg refers to what “Mr.
Judice indicated to me”.
9
injury.” Ceres Marine Terminal v. Director, OWCP, 118 F.3d 387,
392 (5th Cir. 1997). This “manifest” requirement has been added in
the light of § 8(f)’s purpose to protect a worker with permanent
partial disability from hiring discrimination. Of course, such
discrimination is not possible where such disability is unknown and
unknowable. See id. As discussed infra, such knowledge can be
constructive.
The fund liability is contested in two ways: first, the
“absolute defense” of § 908(f)(3) applies; second, Vina’s pre-
employment injury was not “manifest”.
1.
An employer’s second-injury fund application is to be made to
the deputy commissioner (also termed the district director) prior
to his consideration of the compensation claim. 33 U.S.C. §
908(f)(3). That subsection further provides:
Failure to present such request prior to such
consideration shall be an absolute defense to
the special fund’s liability for the payment
of any benefits in connection with such claim,
unless the employer could not have reasonably
anticipated the liability of the special fund
prior to the issuance of a compensation order.
33 U.S.C. § 908(f)(3)(emphasis added). Vessel Repair relies on the
emphasized language and, in particular, the manifest requirement,
maintaining that, when this matter was before the district
director, because it did not then know of the treatment by Dr.
Ramos, it could not have reasonably anticipated that Vina’s prior
10
condition was manifest and so could not have reasonably anticipated
special fund liability.
The fact-finding by the ALJ regarding the timing of Vessel
Repair’s knowledge of Dr. Ramos’ report is not disputed by DOWCP.
It is also undisputed that, without that report, the manifest
requirement is unmet, and so the second-injury fund is not liable.
(As discussed infra, DOWCP maintains that, even given the report,
the requirement is unmet.)
Disputing none of these facts, DOWCP asserts only that Vessel
Repair should have presented its “excuse” to the district director
and requested an extension prior to his referral to the OALJ.
However, it goes without saying that, where an employer’s reason
for not presenting an application before such referral is because
it could not reasonably anticipate second-injury fund liability
until after the referral, it cannot present the reason prior to
referral.
We therefore decline DOWCP’s invitation to impose on employers
a requirement to explain to the district director circumstances
which, to the employers’ knowledge, do not then yet exist. The
LHWCA explicitly contemplates excuses which may arise after the
referral to the OALJ; moreover, by their nature, such post-referral
excuses must be assessed by the ALJ rather than by the district
director.
11
Relatedly, DOWCP puts its claim in terms of jurisdiction and
the ALJ’s authority to review the district director, citing Bath
Iron Works Corp. v. Director, OWCP, 950 F.2d 56 (1st Cir. 1991).
There, however, the court noted that, “importantly,
Employer-Carrier possessed other information earlier which in the
factual assessment of the ALJ and the Benefits Review Board enabled
[Employer-Carrier] to ‘reasonably anticipate’ the liability of the
special fund”. Id. at 59. Because here, DOWCP does not contest
the facts regarding reasonable anticipation, Bath Iron Works is
inapposite.
Moreover, as its quoted language shows, the First Circuit in
Bath Iron Works considers reasonable anticipation to turn on fact-
finding within the province of the ALJ, rather than that of the
district director. We agree with the First Circuit there and with
a recent Fourth Circuit opinion (upon which DOWCP relies), which
holds that “reasonable anticipation” is essentially a factual
matter appropriate for an ALJ’s assessment. See Director, OWCP v.
Newport News Shipbuilding and Dry Dock Co., 134 F.3d 1241, 1246
(4th Cir. 1998) (remanding to the ALJ, not the district director,
for failure to make required factual findings regarding reasonable
anticipation) (“Only an ALJ has the power to make the factual
findings, assess the credibility of the relevant witnesses, and
resolve any inconsistencies in the evidence necessary to determine
if [the employer] demonstrated that it could not have ‘reasonably
12
anticipated’ the late-asserted ground for § 8(f) relief at the time
the company initially filed its application with the district
director.”). Accordingly, finding substantial evidence in the
record to support the ALJ’s finding on reasonable anticipation, we
must defer to the ALJ.
DOWCP urges that Vessel Repair was obliged to engage in
discovery while the matter was pending before the district director
in order to “develop its case” and learn whether Vina’s prior
condition was manifest in a medical record. On this record, we
disagree. A great number of people suffer from back conditions
without having been treated; for example, Dr. Teuscher testified
that degenerative disk disease is a natural consequence of aging.
Accordingly, the bare fact of a back condition is not necessarily
a warrant for discovery regarding the existence of a medical record
making the condition manifest. Cf. Jones v. Capital Cities/ABC
Inc., 168 F.R.D. 477, 480 (S.D.N.Y. 1996) (“The purpose of
discovery is to find out additional facts about a well-pleaded
claim, not to find out whether such a claim exists.”). Cajun
Tubing Testors, Inc. v. Hargrave, 951 F.2d 72 (5th Cir. 1992), upon
which DOWCP relies, explicitly predicates the duties to submit a §
8(f) claim and to take discovery on knowledge of a claim: “An
employer is clearly obligated to submit a claim when it knows that
it has such a claim”. Id. at 75 (emphasis added).
13
2.
DOWCP also contests whether Vina’s prior injury was “manifest”
from medical records pre-dating the 1992 injury. The parties agree
that an injury or condition is manifest if diagnosed and identified
in a medical record, for then the employer has constructive
knowledge of its existence.
In urging that no medical record exists identifying Vina’s
condition, DOWCP points particularly to Dr. Ramos’ statement in one
of his reports: “The computerized tomographic examination of the
cervical spine is normal with no findings to suggest a herniated
disc or bony spinal stenosis”. Another of Dr. Ramos’ reports
indicates plainly, however, that Vina had suffered an injury at
work. Dr. Ramos also stated, “The preliminary scout radiograph
demonstrates degenerative narrowing of the C4-5, C5-6 and C6-7 disc
spaces. Despite this narrowing, I do not see any findings to
suggest a herniated disc”. And, a letter by Dr. Ramos to Vina’s
employer over one year after the 1986 injury reports continuing and
worsening lumbosacral pain and neck discomfort. These documents
provide substantial evidence to support the ALJ’s finding that
Vina’s prior condition increasing his susceptibility to become
disabled if re-injured was manifest.
V.
Accordingly, the petitions are
DENIED.
14