UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-60469
Summary Calendar
Louisiana Insurance Guaranty Association;
Baton Rouge Marine Contractors, Inc.,
Petitioners,
VERSUS
William Parker; Director, Office of Worker’s
Compensation Programs, United States Department of Labor,
Respondents.
Petition to Review a Decision
of the Benefits Review Board
(99-0410)
February 27, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
Per Curiam:*
This case involves the appeal of an administrative ruling
under the Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. §§ 901 – 950 (2001). Baton Rouge Marine Contractors,
*
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opinion should not be published and is not precedent except under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.
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Inc. (BRMC), appeals from the Benefits Review Board’s (“BRB” or
“Board”) decision finding it liable for William Parker’s asbestos-
related disability. BRMC claims that the Board’s decision was in
error because (1) it was not the “responsible employer” for
Parker’s disability, and (2) Parker did not make a proper claim for
medical expenses. We affirm the BRB’s decision.
I.
Before his retirement in 1976, William Parker worked as a
longshoreman for several employers at the Port of Baton Rouge,
including BRMC and Louisiana Stevedores, Inc. His employers
routinely required him to handle asbestos in its powdered form. In
1994, doctors diagnosed Mr. Parker with pulmonary asbestosis.
Parker then brought this worker’s compensation claim against BRMC,
his last port employer. The administrative law judge (ALJ) found
that BRMC was the responsible employer and that Parker was entitled
to recover for his full disability. BRMC’s appeals to the BRB were
denied. Although it is clear that Mr. Parker handled asbestos
while working for both BRMC and Louisiana Stevedores, the parties
dispute whether he last handled the substance while working for
BRMC or Louisiana Stevedores. BRMC also claims that even if it was
the responsible employer, Parker is not entitled to recover medical
expenses because he made no claim for medical expenses and failed
to offer proof of the amount of these expenses.
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II.
Section 921(c) of the LHWCA affords this court jurisdiction to
review decisions of the BRB, but our review is limited to
determining whether the BRB correctly concluded that the ALJ’s
order was “supported by substantial evidence on the record as a
whole and is in accordance with the law.” Avondale Indus., Inc. v.
Director, OWCP, 977 F.2d 186, 189 (5th Cir. 1992). “Substantial
evidence is evidence that provides ‘a substantial basis of fact
from which the fact in issue can be reasonably inferred.’” Id.
(quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292,
299-300 (1939)).
III.
The LHWCA employs the “last exposure” rule of causation.
Under the last exposure rule, the “responsible employer” is the
last employer that subjected the claimant to asbestos before the
claimant knew or should have known of the relationship between his
employment and his asbestos-related illness. See Fulks v. Avondale
Shipyards, Inc., 637 F.2d 1008, 1011-12 (5th Cir. 1981) (citing
Travelers Insurance Company v. Cardillo, 225 F.2d 137 (2d Cir.),
cert. denied, 350 U.S. 913 (1955)). The rule is designed to
simplify proof of causation where the claimant was exposed to a
toxic substance while working for several different employers. See
Avondale Indus., 977 F.2d at 190. Since the ALJ found that Parker
made a prima facie case against BRMC, the burden shifted to BRMC to
show that Parker was exposed to asbestos while performing work
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covered under the LHWCA for a subsequent employer. Id.
BRMC contends that there is not sufficient evidence that it
was the responsible employer because it proved that Parker was last
exposed to asbestos while employed at Louisiana Stevedores. BRMC
submitted evidence that its employees ceased unloading asbestos on
June 22, 1973, because all of the asbestos shipped to Baton Rouge
after that date was stored at a government warehouse. BRMC also
notes that Parker admitted to handling asbestos while working for
Louisiana Stevedores in 1974. Although Parker returned to work for
BRMC after working for Louisiana Stevedores, BRMC submits that
there is no evidence that he handled asbestos for BRMC after 1973.
Despite BRMC’s evidence that its employees no longer unloaded
asbestos after 1973, there is still sufficient evidence that Parker
was last exposed to asbestos while working at BRMC. As noted in
the BRB’s first opinion in this case, BRMC continued to handle
asbestos shipped by truck to warehouses even after its employees
stopped unloading it. Thus, regardless of who unloaded the
asbestos at the port, there is sufficient evidence that Parker was
exposed to it even after he worked for Louisiana Stevedores. BRMC
therefore has not carried its burden of demonstrating that it was
not the responsible employer.
IV.
Section 907(a) of the LHWCA requires employers to pay its
employees’ medical expenses from work-related injuries: “The
employer shall furnish such medical, surgical, and other attendance
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or treatment, nurse and hospital service, medicine, crutches, and
apparatus, for such period as the nature of the injury or the
process of recovery may require.” The Act also requires employers
to reimburse employees for any out-of-pocket medical expenses when
the employer wrongfully refuses the employee’s request for medical
treatment. 33 U.S.C. § 907(d)(1)(A) (“An employee shall not be
entitled to recover any amount expended by him for medical or other
treatment services unless – (A) the employer shall have refused or
neglected a request to furnish such services . . . .”). BRMC
argues that even if it is the responsible employer, Parker was not
entitled to recover medical expenses because he failed to make a
claim for medical expenses and because he submitted no medical
bills to prove the amount of his expenses. Additionally, BRMC
argues that the ALJ’s order that it pay Parker’s reasonable medical
expenses is in error because it does not specify the amount owed.
Contrary to BRMC’s contention, Parker clearly requested §
907(a) medical benefits in his claim dated July 9, 1996. Mr.
Parker’s attorney addressed his claim to BRMC and copied the
Department of Labor. The claim letter reads in pertinent part:
We represent the interests of Mr. Parker in his
claim for benefits under the Longshore & Harbor Workers’
Compensation Act. Enclosed is our POA for you file.
Also enclosed is a copy of correspondence, the LS-203 and
attendant medical reports filed with the USDOL.
The claimant retired from employment, with his last
covered exposure to injurious stimuli with your company
in 1976. We are requesting authorization for treatment
by the Claimant’s choice of physicians, Drs. Jackson and
Nulti, per 33 USC § 907.
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We therefore find sufficient evidence in the administrative record
that Mr. Parker made a claim for medical expenses.
As to the proof of Parker’s medical expenses, BRMC’s brief
cites no authority for the propositions that a LHWCA claimant must
provide invoices of his medical expenses or that an ALJ’s order to
pay reasonable medical expenses include an exact dollar amount.
BRMC has therefore waived these arguments on appeal. United States
v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001) (“Generally
speaking, a defendant waives an issue if he fails to adequately
brief it.”); accord Fed. R. App. P. 28(a)(9)(A) (stating that an
appellant’s brief must include its “contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies”). Furthermore, our review of the
administrative record reveals sufficient factual support for the
BRB’s decision to affirm the ALJ’s award of reasonable medical
expenses relating to Parker’s emergency medical treatment at Our
Lady of the Lake Hospital and his examinations by Dr. Hackley and
Dr. Gomes. The ALJ reviewed extensive testimony from Parker’s
treating physicians about the nature, extent, and likely causes of
Parker’s pulmonary asbestosis. The ALJ also reviewed Parker’s
numerous medical reports before determining that there was a
sufficient nexus between Parker’s treatments at Our Lady of the
Lake and by Drs. Hackley and Gomes to justify an award of
reasonable medical expenses relating to those treatments. Although
the ALJ did not award Parker a particular dollar amount for his
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medical expenses, as the BRB observed, LHWCA’s medical care
regulations govern the procedures for disputing the amount of these
medical expenses. See 20 C.F.R. §§ 702.413 – 702.417 (2001).
V.
We therefore find sufficient evidence in the administrative
record to support the BRB’s ruling that BRMC is the responsible
employer for Parker’s injuries. We also find sufficient evidence
that Parker properly requested and proved his right to payment or
reimbursement of all medical costs incurred. Accordingly, the
decision of the Benefits Review Board opinion dated May 10, 2001 is
AFFIRMED.
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