United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-60689
Summary Calendar
____________________
LAWRENCE A WALKER
Petitioner
v.
UNITED STATES RAILROAD RETIREMENT BOARD
Respondent
_________________________________________________________________
Appeal from the United States Railroad Retirement Board
No. 03-AP-0097
_________________________________________________________________
Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Lawrence A. Walker seeks review of a decision by
a three-member panel of the Railroad Retirement Board in which it
concluded that Respondent United States Railroad Retirement Board
was entitled to reimbursement of sickness benefits pursuant to
§ 12(o) of the Railroad Unemployment Insurance Act. Because the
*
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that this opinion should not be published and is not precedent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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record contains substantial evidence to support the Board’s
decision, we AFFIRM.
I. BACKGROUND
On November 19, 1990, Lawrence A. Walker, who was employed
as a carman by the Norfolk Southern Railway Company (“Norfolk”),
allegedly suffered an injury to his neck while performing a
company required stretching exercise. As a result, Walker filed
a lawsuit against Norfolk for his alleged injury, a fracture to
the transverse process of the seventh cervical vertebral body.
Walker also claimed, and was paid, sickness benefits for his
injury under the Railroad Unemployment Insurance Act (“RUIA”), 45
U.S.C. § 351 et seq. On December 11, 1990, the Railroad
Retirement Board (the “Board”) sent to Norfolk a notice of lien
under § 12(o) of the RUIA. 45 U.S.C. § 362(o). The notice
advised Norfolk of the Board’s right to reimbursement for any
sickness benefits paid to Walker on account of Norfolk’s
liability. During the period from November 20, 1990 through
January 21, 1998, Walker received a total of $29,925 in sickness
benefits.
On May 15, 2002, Norfolk and Walker entered into a
settlement agreement in the amount of $199,999.99. The amount of
sickness benefits paid to Walker, $29,925, was withheld from the
settlement to satisfy the Board’s lien. On February 28, 2002,
Walker requested reconsideration of the amount of the Board’s
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lien, claiming that the sickness benefits he received were not
paid as a result of his November 19, 1990 injury, but rather as a
result of an unrelated lower back problem. Walker’s request was
denied, and he subsequently appealed to the Board’s Bureau of
Hearings and Appeals. On September 8, 2003, a hearing officer
denied Walker’s appeal after determining that his claims for
sickness benefits, like the settlement agreement, were based on
the injury he allegedly sustained on November 19, 1990. Walker
then appealed to the Board itself.
On May 14, 2004, the Board denied Walker’s appeal. The
Board noted that the injury for which Walker recovered under the
settlement was a fractured transverse process. The Board further
noted that each time Walker claimed sickness benefits, he claimed
a transverse process fracture as one of the causes of his
inability to work. The Board noted that Walker’s doctor, Raul M.
Diaz, testified that after August 1991, Walker was able to return
to heavy physical labor. However, the Board also noted that Dr.
Diaz had signed multiple supplemental doctor’s statements
accompanying Walker’s applications for sickness benefits, which
stated that Walker’s inability to work was due to a cervical
transverse process fracture. The Board found that the multiple
statements of sickness filed by Dr. Diaz were entitled to greater
weight in determining whether Walker was unable to work because
of a cervical transverse fracture. Thus, the Board concluded
that Walker was paid sickness benefits for a cervical transverse
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fracture, and since Walker recovered from Norfolk for this same
injury, the Board was entitled to reimbursement. Walker now
appeals the Board’s decision.
II. STANDARD OF REVIEW
The Board’s decision is subject to review by this court
under § 5(f) of the RUIA.1 45 U.S.C. § 355(f). A decision by
the Board is not to be set aside on judicial review if its
findings of fact are supported by substantial evidence in the
record and if it is not based on an error of law. 45 U.S.C.
§ 355(f); Elzy v. R.R. Ret. Bd., 782 F.2d 1223, 1224 (5th Cir.
1986); Fingar v. United States R.R. Ret. Bd., 402 F.2d 544, 547
(5th Cir. 1968). “Evidence is substantial if it consists of
‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Elzy, 782 F.2d at 1224
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“While we require more than a mere scintilla of evidence, we may
not substitute our judgment for that of the Board.” Id.; see
also Davis v. Schweiker, 641 F.2d 283, 285 (5th Cir. 1981).
1
Section 5(f) of the RUIA states in pertinent part:
(f) Review of final decision of Board by Courts of
Appeals; costs. Any claimant . . . aggrieved by a final
decision under subsection (c) of this section, may, only,
after all administrative remedies within the Board will
have been availed of and exhausted, obtain a review of
any final decision of the Board . . . in the United
States circuit court of appeals [court of
appeals] . . . .
45 U.S.C. § 355(f).
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III. DISCUSSION
Under § 2 of the RUIA, the Board is authorized to pay
sickness benefits to qualified railroad employees.2 45 U.S.C.
§ 362. The Board must pay sickness benefits without regard for
the liability of any person to pay damages for the underlying
sickness or, in this case, injury. Id. The Board, however, is
entitled to reimbursement from any damages payable or paid to the
employee by a person liable for the same injury. Id. Upon
notice to the liable party, the Board shall have a lien on any
damages paid by that party to the extent of the amount of
sickness benefits it paid to the employee. Id.
The only issue before us is whether there is substantial
evidence in the record to support the Board’s finding that Walker
2
Section 12(o) of the RUIA specifically provides:
(o) Liability of third party for sickness; reimbursement
of Board. Benefits payable to an employee with respect to
days of sickness shall be payable regardless of the
liability of any person to pay damages for such
infirmity. The Board shall be entitled to reimbursement
from any sum or damages paid or payable to such employee
or other person through suit, compromise, settlement,
judgment, or otherwise on account of any liability (other
than a liability under a health, sickness, accident, or
similar insurance policy) based upon such infirmity, to
the extent that it will have paid or will pay benefits
for days of sickness resulting from such infirmity. Upon
notice to the person against whom such right or claim
exists or is asserted, the Board shall have a lien upon
such right or claim, any judgment obtained thereunder,
and any sum or damages paid under such right or claim, to
the extent of the amount to which the Board is entitled
by way of reimbursement.
45 U.S.C. § 362(o).
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received sickness benefits for the injury he sustained on
November 19, 1990 (a fracture of the cervical transverse
process)--the same injury for which he settled with Norfolk.
Walker argues that the injury he sustained on November 19, 1990
had healed completely as of August 1, 1991. Walker asserts that
after August 1, 1991, he claimed sickness benefits for multiple
medical conditions, including degenerative disc disease of the
lumbar spine, high blood pressure, and various mental and
emotional conditions. To support his claim, Walker points to
evidence in the record that he was diagnosed with a cervical
strain, an injury he sustained on October 12, 1991. Walker also
points to the fact that he was diagnosed with a degenerative disc
disease in November 1994. However, as the Board noted, Walker’s
doctor, Dr. Diaz, signed multiple supplemental doctor’s
statements from 1990 to 1997, which accompanied Walker’s
applications for sickness benefits, averring that Walker’s
inability to work was due to a cervical transverse process
fracture. Further, in his applications for sickness benefits,
Walker indicated November 19, 1990 as the date he became injured.
Dr. Diaz also indicated November 19, 1990 as the date of injury
in the supplemental doctor’s statements that he signed. Thus, we
conclude that the evidence in the record is sufficient to support
the Board’s conclusion.
IV. CONCLUSION
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For the foregoing reasons, the decision of the Board is
AFFIRMED.
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