United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 21, 2003
__________________________ Charles R. Fulbruge III
Clerk
No. 02-60447
Summary Calendar
__________________________
ORTCO CONTRACTORS, INC; LOUISIANA WORKERS’
COMPENSATION CORPORATION,
Petitioners,
versus
LYNETTE CHARPENTIER, Widow of Zeby Charpentier, Jr;
DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR,
Respondents.
___________________________________________________
Petition for Review of an Order
of the Benefits Review Board
___________________________________________________
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
Wiener, Circuit Judge:
Petitioners Ortco Contractors, Inc. (“Ortco”) and Louisiana
Workers’ Compensation Corporation (collectively, “Petitioners”)
seek our review of the Benefits Review Board’s (“BRB”) order
affirming the administrative law judge’s (“ALJ”) determination,
following an initial reversal and remand by the BRB, that
Respondent Lynette Charpentier is entitled to benefits under the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”). We
conclude that the BRB used an improper evidentiary standard in its
review of the ALJ’s initial determination, and that the ALJ had
reached the correct result in his initial holding, viz., that
Petitioners had successfully rebutted Charpentier’s presumed prima
facie entitlement to benefits under the LHWCA. We therefore grant
the petition for review, vacate the BRB’s decisions, and remand
with instructions.
I. FACTS AND PROCEEDINGS
The origin of this case was the death of Zeby Charpentier
(“Decedent”), a painter who died shortly after reporting to work
one morning. His death was the culmination of a heart attack that
had manifested symptoms the prior evening, when the Decedent
complained to his wife about “heartburn.” Presumably unaware of
the seriousness of his medical condition, Decedent sought no
medical attention that night or the next morning; he merely
purchased some over-the-counter palliative medication that morning
on his way to his painting job with Ortco. Within approximately 15
minutes after starting work, Decedent’s ongoing heart attack
escalated to a full-blown cardiac arrest. Efforts by medical
personnel failed to revive him.
As Decedent’s widow, Lynette Charpentier filed a claim for
general death benefits and coverage of funeral expenses under the
LHWCA.1 In April 2000, the ALJ denied her claim, finding first
that she had failed to establish a prima facie case that Decedent’s
injury was work-related; then proceeding on the assumption of a
1
32 U.S.C. § 909.
2
prima facie case but concluding that Petitioners had rebutted the
presumption of coverage and of work-related injury or aggravation.
Specifically, the ALJ noted that “there is no evidence of any
strenuous activity or stressful situation associated with
[Decedent’s] employment which could have caused, aggravated or
accelerated his condition.”
In reaching his decision, the ALJ relied on the testimony of
three physicians that Decedent’s heart attack and his resulting
death were not work-related. Dr. Joseph Tamimie reported this
conclusion unequivocally and unconditionally. Dr. Walter Daniels
initially believed that Decedent’s death “may have been work
related,” but ultimately agreed with Dr. Tamimie’s conclusions
after reading his report. Finally, Dr. Clement Eiswirth, a
cardiologist, testified, according to the ALJ, that Decedent “would
have died no matter where he was or what he was doing because the
only action that would have affected the outcome would have been if
[Decedent] had gone to the hospital.” Dr. Eiswirth also stated
that “the only connection between [Decedent’s] death and his
employment was the fact that [Decedent] was at work when the heart
attack process concluded.” All three doctors confirmed that the
medical records indicate that the heart attack began the previous
evening, while Decedent was at home, and progressed continually
until his fatal cardiac arrest the next morning.
After the ALJ denied Charpentier’s petition for
reconsideration, she appealed to the BRB. In an unpublished
3
opinion, dated May 9, 2001, the BRB vacated the ALJ’s decision and
remanded for further proceedings. The BRB first noted that, under
the LHWCA, Charpentier had established her prima facie case when
she showed that Decedent died at his place of employment, which
creates a presumption in favor of coverage under the LHWCA (the Ҥ
20(a) presumption”).2 The BRB ruled that if the Petitioners could
not affirmatively rebut the § 20(a) presumption, Charpentier would
be entitled to benefits under the LHWCA.
The BRB then assessed whether Petitioners had successfully
rebutted Charpentier’s § 20(a) presumption. The three physicians
who testified on behalf of Petitioners, the BRB noted, “could not
rule out” that Decedent’s employment contributed to the fatal
result of his heart attack. The BRB further explained that “none
of these physicians unequivocally state [sic] that decedent’s work
activities on October 12, 1996, did not contribute to or accelerate
his death.” The BRB therefore remanded the case to the ALJ, ruling
that Charpentier met the § 20(a) presumption and that Petitioners
had failed to rebut it.
On remand, the ALJ did not hear any further testimony or
receive any additional evidence. In his second opinion, the ALJ
simply stated that Charpentier met her prima facie case, and that,
under the evidentiary standard set by the BRB in vacating the ALJ’s
prior decision, the Petitioners had failed to rebut Charpentier’s
2
33 U.S.C. § 920(a).
4
§ 20(a) presumption. The ALJ awarded Charpentier LHWCA benefits,
and Petitioners appealed to the BRB.
In a terse, unpublished opinion, the BRB affirmed the ALJ’s
decision following remand. The BRB noted that, under the law of
the case doctrine, it was bound by its own prior decision, in which
it recognized that Petitioners’ physicians “did not affirmatively
state that the decedent’s employment duties did not aggravate his
underlying condition to result in death, or hasten the decedent’s
death.” Petitioners timely filed a petition for review.
II. ANALYSIS
A. Standard of Review.
Our review of the BRB is limited in scope to “considering
errors of law and making certain that the BRB adhered to its
statutory standard of review of factual determinations, that is,
whether the ALJ’s findings of fact are supported by substantial
evidence and [are] consistent with the law.”3
B. The Evidentiary Standard For Rebutting The § 20(a) Presumption
Under The LHWCA.
Under the LHWCA, a claimant like Charpentier has the burden of
proving a prima facie case for coverage, viz., that (1) an injury
was suffered, and (2) the injury occurred in the course of
employment or was caused, aggravated or accelerated by conditions
3
Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90 (5th
Cir.1990) (quoting Miller v. Central Dispatch, Inc., 673 F.2d 773,
778 (5th Cir. Unit A 1982)).
5
at the work place.4 A claimant’s proof of these two predicates
triggers § 20(a)’s presumption that the injury is work-related and
that the claimant is entitled to coverage.5 To avoid coverage, the
employer must affirmatively rebut this presumption with
“substantial evidence to the contrary.”6 We have repeatedly held
that this evidentiary standard is less demanding than the ordinary
civil requirement that a party prove a fact by a preponderance of
evidence.7
In the instant case, Petitioners contend that the BRB used an
improper evidentiary standard when it reviewed the ALJ’s first
decision. We agree. In vacating the ALJ’s first decision and
affirming the second following remand, the BRB expressed several
different formulations of the requirement imposed by the LHWCA for
proving that an injury is not work-related: (1) “rule out,” (2)
“unequivocally state,” and (3) “affirmatively state.” These
evidentiary standards, Petitioners maintain, run afoul of our
holding in Conoco that the BRB cannot require employers to rebut a
§ 20(a) presumption by “ruling out” every conceivable connection
between the injury and the claimant’s employment. The LHWCA
requires a lower evidentiary standard than this —— the employer
4
Conoco v. Director, Office of Worker’s Compensation
Programs, U.S. Dep’t of Labor, 194 F.3d 684, 687 (5th Cir. 1999).
5
33 U.S.C. § 920(a).
6
Id. (emphasis added).
7
See, e.g., Avondale Shipyards, Inc., 914 F.2d at 91.
6
must adduce only substantial evidence that the injury was not work-
related.8
Charpentier, the Director of the Office of Worker’s
Compensation, and the U.S. Departmant of Labor (collectively,
“Respondents”), nevertheless, urge us to affirm the BRB’s
decisions. They invite us to consider the BRB opinions that state
explicitly that “a medical opinion does not have to rule out every
possibility that the injury or death might be work related.” The
BRB used the term “rule out” here, they maintain, only to
paraphrase Dr. Eiswirth’s answer to Charpentier’s counsel’s
question on whether he could “rule out” that Decedent’s exertion at
his job was a contributing factor to the fatality of his heart
attack. Dr. Eiswirth replied: “No, I cannot” —— meaning, he could
not rule out this possibility with absolute, 100% certainty.
Respondents maintain that we should not penalize the BRB for this
single use of the term “rule out,” and that we should recognize
that the BRB carefully reviewed the entire record and correctly
determined that Petitioners did not meet the “substantial evidence”
requirement.
Respondents are correct that the BRB, in repeating the
obligatory standard of review in each opinion, recognized that its
review of an ALJ’s decision is limited to whether “substantial
evidence” has been submitted to rebut a § 20(a) presumption. Yet,
8
Conoco, 194 F.3d at 690.
7
after giving lip service to this standard of review, the BRB
proceeded to disregard it entirely, repeatedly violating the
correct standard in the wording and substance of its opinion. In
its initial ruling in this case, the BRB found that the testifying
physicians “could not rule out” that Decedent’s death was work-
related. The BRB also stated that these physicians could not
“unequivocally state” that Decedent’s death was not work-related.
Again, when reviewing the ALJ’s decision following remand, the BRB
explained that Petitioners’ physicians “did not affirmatively
state” and “did not unequivocally state” that Decedent’s heart
attack was not aggravated by his work conditions. In making such
evidentiary demands on Petitioners, the BRB flagrantly violated our
decision in Conoco that the BRB cannot create a higher evidentiary
hurdle than the “substantial evidence” standard expressly stated in
the LHWCA.
First, the BRB’s determination that Petitioners’ testifying
physicians “could not rule out” that Decedent’s death was work-
related is in direct violation of our holding in Conoco that the
BRB may not use this standard in assessing evidence under the
LHWCA. The BRB’s post hoc rationalization in a footnote of its
second opinion that it was simply paraphrasing Charpentier’s
question of Dr. Eiswirth falls well short of the mark. Simply
because a physician answers a question in a deposition that he
cannot “rule out” every conceivable causal connection between a
claimant’s employment and an injury does not justify the BRB’s
8
reliance on such an answer as a de facto evidentiary standard under
the LHWCA. Charpentier’s demand that Dr. Eiswirth “rule out” every
possible nexus between Decedent’s death and the work conditions
clearly asked more of Dr. Eiswirth than is required under the
LHWCA. The BRB may not permit an expressly discredited evidentiary
standard to slip into its review of claims under the LHWCA simply
because it is able to discern this standard directly from the words
of an expert witness’s testimony.
Second, Respondents efforts to rehabilitate the BRB’s specific
use of the term “ruling out” as innocent is belied by the substance
of the BRB’s two opinions in this case. In addition to embracing
Dr. Eiswirth’s failure to “rule out” any possibility, however
remote, that Decedent’s death was work-related, the BRB stated
repeatedly that Petitioners’ failed their evidentiary burden under
the LHWCA because the physicians did not “unequivocally state” or
“affirmatively state” that there was no conceivable connection
between Decedent’s fatal heart attack and his work conditions.
This sets up a far more demanding evidentiary standard than is
specified by the plain words of the LHWCA.
In fact, we perceive no distinction between (1)
“unequivocally” or “affirmatively” stating that an injury is not
work-related, and (2) “ruling out” the possibility that an injury
is work-related. This is a classic distinction without a
difference. The meaning of these evidentiary demands is the same.
The BRB cannot allow the previously rejected “ruling out” standard
9
to seep interstitially into its opinions by simply rephrasing it in
more innocuous terms.
In ignoring Conoco’s injunction that it follow the express
terms of the LHWCA, the BRB appears to have failed to read the
Conoco decision in its entirety: The Conoco court already rejected
similar formulations of the evidentiary standard that the BRB
invokes in the instant case. In Conoco, the BRB had affirmed an
ALJ’s decision that an employer must “rule out” all possible causal
connections between an injury and a claimant’s employment
conditions to rebut the § 20(a) presumption. We did not merely
rebuke the ALJ (and the BRB) for illegitimately engrafting this
extra-statutory requirement on the LHWCA; we also recognized that
the ALJ relied on various formulations of the phrase “rule out,”
quoting from the ALJ’s decision that “the [§ 20(a)] presumption
must be rebutted with specific and comprehensive medical evidence
proving the absence of, or severing, the connection between harm
and employment.”9 We then held such formulation to be equally
repugnant to the LHWCA, noting that “this requirement..., like the
‘ruling out’ standard..., would be incorrect.”10 If an employer
need not submit “specific and comprehensive” evidence to rebut the
9
Id. at 688 n.1 (quoting the ALJ’s opinion).
10
Id. Furthermore, in the text of the opinion, we summarized
the ALJ’s and BRB’s requirement that an employer has a “burden to
present specific and comprehensive evidence to rebut the [§ 20(a)]
presumption,” id. at 689, and we again criticized this as an
“incorrect burden.” Id. at 690.
10
§ 20(a) presumption, it clearly cannot be required to submit
“unequivocal” evidence to do so. If a phrase is proscribed, so is
its synonym.
We thus reaffirm the holding of the Conoco court that the
evidentiary standard for rebutting the § 20(a) presumption is the
minimal requirement that an employer submit only “substantial
evidence to the contrary.” We continually affirm the BRB and ALJs
on the substantial evidence standard; they must learn to apply that
standard to employers as well as to employees:
The language [of the LHWCA] does not require a “ruling
out” standard; indeed, the hurdle is far lower. Indeed,
the plain language of the statute uses the phrase
“substantial evidence to the contrary.” To place a
higher standard on the employer is contrary to statute
and case law. We therefore unequivocally reject the
“ruling out” standard applied by the [BRB] in this
case.11
The plain terms of the LHWCA precludes the BRB from fabricating a
stricter evidentiary standard, regardless of how it may be
verbalized —— whether it is in terms of “specifically and
comprehensively” stating, “ruling out,” “unequivocally stating,”
“affirmatively stating,” or some other as yet-to-be articulated
phrase. Considerable time, money and judicial resources could be
saved by a straightforward application of the words and
requirements of the LHWCA.
C. The ALJ Reached the Right Result the First Time.
Once an employer successfully rebuts a § 20(a) presumption by
11
Id. at 690 (citations omitted).
11
producing “substantial evidence” —— more than a modicum but less
than a preponderance —— that the injury was not work-related, the
ALJ must assess the issue of causation by looking at all record
evidence.12 In these cases, the BRB reviews such determinations of
the ALJ under the same deferential standard that governs our
review: If the BRB determines that the ALJ’s decision is
“supported by substantial evidence and is in accordance with the
law,” the ALJ’s decision must be affirmed.13 The BRB “may not
substitute its judgment for that of the ALJ, nor may [it] reweigh
or reappraise the evidence.”14
Here, the BRB did not give proper deference to the ALJ’s
initial assessment of the evidence, incorrectly erecting a higher
evidentiary hurdle than the one specified in the LHWCA. Under the
proper standard of review, the ALJ’s first holding, i.e., that
Charpentier was not entitled to LHWCA benefits, was supported by
substantial evidence and was consistent with the law. That should
have marked the end of the BRB’s review.
Nevertheless, the BRB vacated the ALJ’s initial decision that
Charpentier was ineligible for benefits under the LHWCA on the
12
Gooden v. Director, Office of Worker’s Compensation
Programs, U.S. Dep’t of Labor, 135 F.3d 1066, 1068 (5th Cir. 1998).
13
Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991).
14
Id.
12
basis of the “aggravation rule.”15 This rule specifies that when
“an employment injury worsens or combines with a preexisting
impairment to produce a disability greater than that which would
have resulted from the employment injury alone, the entire
resulting disability is compensable.”16
At first blush, the aggravation rule might appear to weigh in
favor of Charpentier’s claim. Decedent’s heart attack, although
clearly having begun the previous evening while he was at home, not
work, concluded fatally some fifteen minutes after he started his
painting work for Ortco the next morning. Thus, it would appear on
the surface that Decedent’s pre-existing and ongoing heart attack
might have been aggravated by his work, leading to the fatal
cardiac arrest. If this assessment were correct, then the ALJ
would have erred in failing to acknowledge this causal link in the
aggravation of Decedent’s heart attack.
We reached such a conclusion in Gooden, when we vacated an
ALJ’s decision that denied LHWCA benefits. We held that the ALJ
improperly focused on the non-work-related origins of an employee’s
chronic heart condition, which pre-dated by several years the heart
15
See Cairns v. Matson Terminals, Inc., 21 B.R.B.S. 252
(1988).
16
Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.
1986). In the instant case, the BRB explained that the
“aggravation rule provides that where an employee’s work
aggravates, accelerates, or combines with a pre-existing condition,
the entire resultant condition is compensable,” citing Wheatley v.
Adler, 407 F.2d 307, 312 (D.C. Cir. 1968) (en banc).
13
attack that struck the employee while he was on the job. We stated
that “[i]t is well settled that a heart attack suffered in the
course and scope of employment is compensable even though the
employee may have suffered from a related preexisting heart
condition.”17 Thus, in that case, the ALJ erred in failing to
consider the work conditions under which the employee suffered his
actual heart attack. We remanded with instructions for the ALJ to
make findings that “address the heart attack itself,” not the pre-
existing heart condition.18
Our decision in Gooden is easily distinguishable from the
record before us in the instant case. The employee’s injury in
Gooden —— his heart attack —— began and ended on the job. The
injury was the heart attack in toto; only the cardiac disease pre-
dated the injury and that was for an extended time. In this case,
it is indisputable that Decedent’s heart attack began in the
evening while he was at home, continued there throughout the night
and early morning, and finally concluded in the fatal cardiac
arrest 15 minutes into his morning’s work. Unlike the situation in
Gooden, the heart attack in this case did not begin and end
entirely in the context of Decedent’s employment. Here, Decedent
brought an ongoing heart attack to work with him that morning. And
—— according to un-rebutted medical testimony —— it would have
17
Gooden, 135 F.3d at 1069 (emphases added).
18
Id. at 1069.
14
escalated to a fatal cardiac arrest no matter where he was at that
time, with the possible exception of the hospital.
Respondents nevertheless repeat the BRB’s contention that
Decedent’s employment might have contributed to the fatal nature of
his heart attack, a possibility that the BRB tries to ascribe to
Petitioners’ expert witnesses for not having been able to “rule
out” or “unequivocally” deny. The BRB infers this supposition from
the fact that Decedent’s heart attack, although beginning many
hours earlier when he was at home, turned fatal shortly after his
arrival at work. Ergo, reasons the BRB, there is “circumstantial”
evidence that Decedent’s working conditions aggravated his pre-
existing heart attack. We see this evidence not as circumstantial
but as coincidental.
Of course, the BRB was able to draw this inference only
because it first rejected the ALJ’s detailed findings by employing
the impermissibly stringent standard of review that Petitioners’
expert witnesses must “rule out” or “unequivocally” deny such a
possibility. In his first decision, the ALJ gave much weight to
the testimony of Dr. Eiswirth, a board-certified cardiologist.19
Dr. Eiswirth related that if “you’re having a heart attack and you
do any physical activity, you’re at increased risk of death.”
(Emphasis added.) Dr. Eiswirth further explained, according to the
19
See Conoco, 194 F.3d at 691 (noting that it is within the
discretion of the ALJ to place “greater weight” on one medical
expert than another).
15
ALJ, that this meant that “the only action that would have
[favorably] affected the outcome would have been if [Decedent] had
gone to the hospital.” (Emphasis added.) In other words, Decedent
could have gone fishing, he could have gone shopping, he could have
mowed his lawn or carried in the groceries —— he could have engaged
in virtually any activity, and not necessarily one involving stress
or exertion —— and the cardiac arrest still would have occurred.
Thus, as the ALJ recognized, it was only happenstance that Decedent
was “at work when the heart attack process concluded.”
To apply the aggravation rule in this context would empty it
of any meaning under the LHWCA. If an employee’s pre-existing
injury would necessarily be exacerbated by any activity regardless
of where or when this activity takes place, and an employee happens
to go to work, it is an impermissible leap of logic to say that
there must be a causal connection between the worsening of the
employee’s injury and his work. There is a causal connection
between the employee’s life activity and his exacerbated injury,
but it does not matter whether this activity happened to take place
at work or elsewhere. To approve LHWCA benefits in such cases
would be to place a thumb on the scale in favor of LHWCA claimants;
yet the Supreme Court has expressly disapproved when, in the past,
we weighted the LHWCA to the advantage of claimants.20 There is no
20
Mendoza, 46 F.3d at 500 n.1 (noting that the Supreme Court
explicitly rejected the “true doubt rule,” which weighted the LHWCA
in favor of claimants by requiring that all doubtful fact questions
be resolved in favor of claimants).
16
reason for us —— or the BRB —— to incur the condemnation of the
Court by doing so again.
In their appellate briefs, Respondents attempt to buttress the
BRB’s opinions by labeling as contradictory and speculative the
nature of the physicians’ testimony, such as Dr. Daniels’s changing
his conclusion following his review of Dr. Tamimie’s report. These
arguments miss the point entirely. An ALJ “is a factfinder and is
entitled to consider all credibility inferences. He can accept any
part of an expert's testimony; he may reject it completely.”21
“The ALJ’s selection among inferences is conclusive if supported by
the evidence and the law.”22 Based here on substantial evidence and
the applicable law, the ALJ found that Petitioners had rebutted the
§ 20(a) presumption and had established that there was no specific
causal connection between Decedent’s heart attack turning fatal and
his work. And, in doing so, the ALJ relied on evidence that was of
significantly greater probative value than substantial. Thus,
according to the circumscribed scope of our review, this is a
factual finding to which we —— and the BRB —— must defer.23
III. CONCLUSION
Our review of the record satisfies us that, although the ALJ
initially erred in ruling that Charpentier failed to make a prima
21
Avondale Shipyards, Inc., 914 F.2d at 91.
22
Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th
Cir. 1995).
23
Conoco, 194 F.3d at 690.
17
facie case —— indeed, she did —— the ALJ’s analysis, conclusions,
and holdings after assuming arguendo that the claimant had proved
a prima facie case, were correct. Petitioners submitted
substantial evidence sufficient to rebut Charpentier’s § 20(a)
presumption, and this evidence established that Decedent’s death at
his place of employment was, in essence, a coincidence.
Accordingly, we vacate both opinions of the BRB and remand with
instructions that the case be further remanded to the ALJ for
reinstatement of the his initial holding, which denied benefits to
Charpentier.
PETITION GRANTED; BRB’s RULINGS VACATED; CASE REMANDED WITH
INSTRUCTIONS
18