United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-61083
Summary Calendar
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CHEVRON USA, INC; CRAWFORD & CO, INSURANCE CARRIER
Petitioners,
v.
CHRISTOPHER HEAVIN; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR
Respondents.
Petition for Review of an Order of the Benefits Review Board
(04-0661)
Before DEMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioners Chevron USA, Inc. (“Chevron”) and Crawford & Co.
(“Crawford”) appeal the order of the Benefits Review Board (“BRB”
or “the Board”) affirming the administrative law judge’s (“ALJ”)
decision to deny Petitoners’ request for special fund relief
under the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”)§ 8(f) , 33 U.S.C. §§ 908(f), 944. The BRB’s order
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
contains no reversible error. The Board correctly applied the
law, and it properly concluded that the ALJ’s factual findings
were supported by substantial evidence on the record as a whole.
We therefore AFFIRM the Board’s order.
I. FACTUAL AND PROCEDURAL HISTORY
Christopher Heavin (“Heavin”) began working for subsidiaries
of Gulf Oil1 on the day of his graduation from college in 1976.
On October 13, 1986, while working as a facility operator, Heavin
fell approximately forty feet from an offshore drilling platform.
He suffered a bruised heart, punctured lungs and diaphragm, an
injured liver, a laceration to his left kidney, and fractures to
his ribs, back, hip, and right femur.
In February 1982, prior to his accident, Heavin was treated
for back pain at Lafayette General Hospital. Heavin also
suffered from pre-existing kidney problems. In March 1983, Dr.
Charles Williams removed Heavin’s right kidney due to a
congenital deformity.
Heavin filed a claim for benefits arising from the injuries
that he sustained from the October 13, 1986, accident against
employer Chevron and Crawford, Chevron’s insurance carrier, under
the LHWCA, 33 U.S.C. § 901 et seq., as extended by the Outer
Continental Shelf Lands Act, 43 U.S.C. § 1333 et seq. The ALJ
issued a Decision and Order Granting Permanent Total Disability
1
Gulf Oil later merged with Chevron.
2
Benefits on December 11, 2003. Of relevance to this appeal, the
ALJ denied Chevron and Crawford’s petition for section 8(f)
relief because the ALJ found that Chevron and Crawford failed to
prove that Heavin’s permanent total disability was not due solely
to the injuries he sustained from the October 13, 1986, accident.
The ALJ then issued a Decision and Order Denying Request for
Modification dated May 7, 2004.
On May 20, 2004, Petitioners filed a timely notice of appeal
with the BRB. On April 26, 2005, the Board issued its Decision
and Order, which, among other things, affirmed the ALJ’s decision
to deny Petitioners’ request for section 8(f) relief.
Following the Board’s decision, Petitioners filed a petition
for review with the Ninth Circuit Court of Appeals on June 22,
2005. The Ninth Circuit transferred the case to this court under
28 U.S.C. § 1631 because Heavin sustained his injuries while
working in the Gulf of Mexico.
The ALJ’s Decision and Order Granting Permanent Total
Disability Benefits resolved several issues related to Heavin’s
workers’ compensation claim; however, the sole issue raised in
this appeal is whether Petitioners have proved that they qualify
for section 8(f)’s super fund relief.
II. STANDARD OF REVIEW
When considering an appeal of an ALJ’s order, the BRB lacks
statutory authority to “to engage in a de novo review of the
3
evidence or to substitute its views for those of the ALJ.” Ceres
Marine Terminal v. Dir., 118 F.3d 387, 389 (5th Cir. 1997); see
33 U.S.C. § 921(b)(3). The BRB must accept the ALJ’s findings
unless they “are not supported by substantial evidence in the
record considered as a whole or unless they are irrational.”
Ceres, 118 F.3d at 389. Therefore, when reviewing a decision
from the BRB, this court’s “only function is to correct errors of
law and to determine if the BRB adhered to its proper scope of
review--i.e., has the Board deferred to the ALJ’s fact-finding or
has it undertaken de novo review and substituted its views for
the ALJ’s.” Id. (quoting Avondale Shipyards, Inc. v. Vinson, 623
F.2d 1117, 1119 n.1 (5th Cir. 1980)). When conducting a review
of the Board’s order, this court must “independently examine the
record to determine whether the ALJ’s findings are supported by
substantial evidence.” Id. We determine whether the ALJ’s
findings were supported by substantial evidence because the LHWCA
“has the effect of shifting deference away from the BRB and to
the ALJ.” Id. at n.1.
Substantial evidence is “that relevant evidence--more than a
scintilla but less than a preponderance--that would cause a
reasonable person to accept the fact finding.” Dir. v. Ingalls
Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997). In other
words, substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Louis Dreyfus Corp. v. Dir., 125 F.3d 884, 886 (5th
4
Cir. 1997).
III. DISCUSSION
Petitioners contend that the Board and the ALJ’s finding
that Petitioners failed to satisfy section 8(f)’s requirements is
not supported by substantial evidence. Specifically, Petitioners
point to evidence which they argue clearly demonstrates that
Heavin’s pre-existing back and kidney problems contributed to his
current permanent total disability. Petitioners also argue that
the ALJ erred by focusing on the fact that their experts
addressed the incorrect standard for satisfying section 8(f).
Petitioners maintain that the ALJ should have delved into the
record to determine whether Petitioners produced enough evidence
to prove that they met section 8(f)’s requirements.
Traditional workers’ compensation regimes follow the
“aggravation rule,” which makes an employer liable for an
employee’s entire disability even though the disability resulted
from a current employment injury and a pre-existing impairment.
Ceres, 118 F.3d at 389. However, section 8(f) limits the
employer’s liability for a work-related permanent disability if
the employer can show that the employee had a pre-existing
permanent partial disability that contributed to the current
employment-related disability. Id.; see 33 U.S.C. § 908(f).
After 104 weeks, section 8(f) shifts liability from the employer
to a special fund financed through contributions from employers
5
in the industry. Ingalls, 125 F.3d at 306 n.4; see 33 U.S.C.
§§ 908(f)(1), 944.
The elements that an employer must establish to take
advantage of section 8(f)’s super fund provision depend on
whether the employee suffered a permanent partial disability or a
permanent total disability. Two R Drilling Co. v. Dir., 894 F.2d
748, 750 (5th Cir. 1990). In this case, the ALJ determined that
Heavin suffered a permanent total disability2 as a result of his
work-related injuries from the October 13, 1986, accident. Thus,
Petitioners must establish that Heavin had: “(1) an existing
permanent partial disability before the employment injury; (2)
that the permanent partial disability was manifest to the
employer; and (3) that the current disability is not due solely
to the employment injury.” Id. (citations omitted). The
employer bears the burden of proving these elements. Id.; Louis
Dreyfus, 125 F.3d at 887.
The ALJ determined that Petitioners had satisfied the first
two of section 8(f)’s three requirements. Therefore, the only
disputed issue on appeal is whether Petitioners proved that
Heavin’s current disability is not due solely to the employment
2
Under the LHWCA, a permanent total disability means that
the claimant has suffered injuries which prevent him from
reentering the labor force. See Ceres, 188 F.3d at 390-91; see
also 33 U.S.C. § 902(10) (stating that “disability means
incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment”).
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injury.3 Petitioners contend that they met the contribution
requirement because Heavin’s October 13, 1986, accident would not
have rendered him permanently totally disabled absent his pre-
existing back and kidney disabilities. Petitioners also argue
that this court should grant them section 8(f) relief as a matter
of public policy to avoid discouraging employers from hiring
employees with pre-existing permanent partial disabilities.
A. The Contribution Requirement
Petitioners maintain that the Board and the ALJ erred by
finding that it did not meet the contribution requirement. To
support its claim, Petitioners cite to a medical report by Dr.
James London in which he opined that Heavin’s injuries from the
October 13, 1986, accident combined with his pre-existing back
impairment to produce a greater total impairment than would have
resulted from the work injury alone. Petitioners also rely on
Dr. London’s deposition testimony in which he stated that
Heavin’s current work restrictions arose from both the October
13, 1986, injuries and his pre-existing back impairment.
In addition to the pre-existing back condition, Petitioners
maintain that Heavin’s pre-existing kidney disability contributed
to his present disability. A medical report authored by Dr.
London dated August 25, 1998, stated that Heavin’s pre-existing
congenital kidney condition made his injuries from the October
3
This element is also known as the contribution requirement.
See Ceres, 118 F.3d at 389.
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13, 1986, accident materially and substantially greater.
Petitioners also rely on a medical report by Dr. Nachman
Brautbar, which opines that the removal of Heavin’s right kidney
in 1983 was a contributing factor to his current impairment
because being hired with one kidney increases the risk for
developing renal failure and hemodialysis. Finally, Petitioners
cite a medical report by Dr. Peter Grodon in which he noted that
Heavin’s kidney condition left him vulnerable to nephrotoxic
drugs and profound dehydration. Petitioners use Dr. Grodon’s
report to argue that the pre-existing kidney condition
contributed to Heavin’s current permanent total disability.
Petitioners maintain that if Heavin still had a right kidney, he
would be able to reenter the labor market because he would have
higher kidney function, which would allow him to take medications
that would enable him to control his back pain and incontinence.
Contrary to Petitioners’ arguments, the ALJ found that
Heavin’s pre-existing back condition did not contribute to his
current permanent total disability. The ALJ cited a medical
report from Dr. Blanda, which noted that Heavin’s back pain
resulted from kidney problems. A report from Dr. Raymond
Linovitz also suggested that Heavin’s back problem really arose
from his kidney problems or possibly a sciatic nerve problem.
The ALJ credited Dr. Linovitz’s opinion that a 1982 medical
record referring to back pain with no follow-up treatment was
insufficient to show that Heavin suffered from a pre-existing
8
back condition. The opinions of Drs. Blanda and Linovitz provide
substantial evidence--such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion--to sustain the
ALJ’s determination that Heavin’s pre-existing back condition, if
he even had one, did not contribute to his present disability.
See Louis Dreyfus, 125 F.3d at 886.
There was also substantial evidence in the record for the
ALJ to conclude that Heavin’s pre-existing kidney problems did
not contribute to his present disability. Dr. Grodon testified
that “You have a perfect example of people donating a kidney for
transplant, and they have one kidney left, and they live normal
lives...[Heavin] does not have a disability because of his
kidneys. Even now.” Heavin v. Chevron USA, Inc., 2002-LHC-2122,
07-105398, at 27 (Dep’t of Labor Dec. 11, 2003). Put
differently, only having one kidney does not limit someone from
the labor market. Dr. Grodon also stated that “considering the
substantial trauma to his body, in my opinion, both kidneys would
have been damaged, in all medical probability to an identical
degree.” Id. Therefore, even assuming Heavin’s kidney problems
did limit him for the labor force, the October 13, 1986, accident
was so traumatic that it alone would have been sufficient to
render Heavin permanently totally disabled. The ALJ concluded
from this testimony that Heavin’s pre-existing kidney problem
played no role in the severity and extent of his permanent
condition. In other words, Heavin’s pre-existing kidney problems
9
did not contribute to his present inability to enter the labor
force.
The record yielded substantial evidence to support the ALJ’s
finding that neither Heavin’s pre-existing back condition, if he
had one, nor his pre-existing kidney problems contributed to his
present inability to reenter the labor force. The ALJ credited a
medical report from Dr. Grodon dated June 18, 2001, which stated
that Heavin’s orthopedic limitations, not his liver or kidney
disorders, limited him from the labor market. Thus, Petitioners’
own expert, Dr. Grodon, provided the substantial evidence for the
ALJ to determine that Heavin’s pre-existing kidney condition did
not contribute to his current permanent total disability.
Having reviewed both Petitioners’ arguments and the ALJ’s
decision and order, Petitioners establish--at best--that a fact
finder could draw multiple inferences from the evidence in the
record. The well-established law in this circuit is that whether
“the facts may permit diverse inferences is immaterial. The
administrative law judge alone is charged with the duty of
selecting the inference which seems most reasonable and his
choice, if supported by the evidence, may not be disturbed.”
Presley v. Tinsley Maint. Serv., 529 F.2d 433, 436 (5th Cir.
1976); Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir.
1995). It is the ALJ who “determines the weight to be accorded
to evidence and makes credibility determinations.” Mendoza, 46
F.3d at 500. Further, “where the testimony of medical experts is
10
at issue, the ALJ is entitled to accept any part of an expert's
testimony or reject it completely.” Id. at 501; Mijangos v.
Avondale Shipyards, Inc., 948 F.2d 941, 945 (5th Cir. 1991). In
this case, the ALJ’s selection of inferences was reasonable and
supported by the evidence. Therefore, this court cannot disturb
the ALJ’s factual findings.
Petitioners argue that the ALJ erred by focusing on the fact
that their experts’ opinions did not address the correct legal
standard for permanent total disability cases. Petitioners’
experts, Drs. London and Grodon, stated that Heavin’s current
injury is materially and substantially greater because of his
pre-existing injuries. The ALJ correctly noted that those
opinions would be relevant to a permanent partial disability
case, but not to Heavin’s permanent total disability case. See
Two R Drilling, 894 F.2d at 750. Petitioners contend that
instead of focusing on the fact that their experts addressed the
incorrect standard, the ALJ should have delved into the record to
determine whether Petitioners had proved the contribution
requirement for a permanent total disability.
Petitioners’ argument fails for two reasons. First, in
permanent total disability cases, an employer cannot establish
the contribution requirement by simply showing that the
employee’s current disability is greater than it would have been
absent the employee’s pre-existing impairments. Ceres, 118 F.3d
at 390; Ingalls, 125 F.3d at 306-07. Instead, the employer has
11
to prove that the employee would not be totally disabled--i.e.,
unable to reenter the labor force--without his prior injury.
Ingalls, 125 F.3d at 307. Second, the ALJ’s decision
demonstrates that the ALJ looked beyond the fact that
Petitioners’ experts addressed the incorrect standard and that
the ALJ delved into the record evidence when making factual
determinations. For example, the ALJ discredited Dr. Grodon’s
testimony that Heavin’s current disability is substantially
greater than it would have been from the October 13, 1986,
accident alone not only because this testimony was irrelevant to
the correct standard, but also because it was conclusory and
contradicted some of his other statements. Heavin, 2002-LHC-
2122, 07-105398 at 27.
B. Public Policy
Petitioners argue that this court should grant them section
8(f) relief as a matter of public policy because Congress enacted
section 8(f) to reduce discrimination against handicapped
workers. In order to further congressional intent, Petitioners
contend that this court should construe section 8(f) liberally in
favor of employers.
Almost all authorities agree that Congress enacted section
8(f) to diminish an employer’s incentive to discriminate against
partially disabled workers. See Lawson v. Suwanee Fruit & S.S.
Co., 336 U.S. 198, 201 (1949); Ceres, 118 F.3d at 389. Section
8(f) strikes a balance between encouraging employers to hire
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partially disabled workers and avoiding a moral hazard problem in
which employers would seek to shift liability to the special fund
in cases where there were only insignificant pre-existing
injuries. Ingalls, 125 F.3d at 306. Therefore, the elements
that an employer must prove to benefit from section 8(f) reflect
Congress’s judgment about the best way to achieve the public
policy goal of reducing discrimination against disabled workers.
Broadly referring to Congress’s desire to reduce discrimination
against the partially disabled is no substitute for actually
meeting section 8(f)’s demands. Public policy does not entitle
Petitioners to section 8(f) relief because Petitioners failed to
meet the contribution requirement.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the
Benefits Review Board.
AFFIRMED.
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