C & D Production Services v. Director

Case: 09-60485 Document: 00511091160 Page: 1 Date Filed: 04/26/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 26, 2010

No. 09-60485 Lyle W. Cayce
Summary Calendar Clerk

C & D PRODUCTION SERVICES; ZURICH NORTH AMERICA,

Petitioners
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; CLAUDIA S. CAMPBELL, Widow of John D.
Campbell,

Respondents

Petition for Review of an Order of the
Benefits Review Board
(08-0706 & 08-0852)

Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioners C & D Production Services (“Employer”) and Zurich North
America petition for review of a final order of the Benefits Review Board
awarding benefits to the widow of John D. Campbell (“Campbell”). Campbell
worked as an offshore mechanic for Employer and, while on an offshore
platform, suffered a heart attack that caused his death. The Administrative

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-60485

Law Judge (“ALJ”) found that his widow, Claudia S. Campbell (“Claimant”),
was entitled to death benefits under the Longshore and Harbor Workers
Compensation Act (“LHWCA”). The Board affirmed the ALJ’s decision. For the
reasons set forth below, we deny the petition for review.
Petitioners first argue the Board erred in concluding that Claimant carried
her burden of proving that working conditions existed that could caused,
aggravated, or accelerated the heart attack. We disagree. “It 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
condition.” Gooden v. Director, Office of Worker’s Compensation Programs, 135
F.3d 1066, 1069 (5th Cir. 1998). In the case of a heart attack, the injury or
accident “‘arises out of the employment when the required exertion producing
the injury is too great for the man undertaking the work; and the source of the
force producing the injury need not be external.’” Id. (quoting Southern
Stevedoring Co. v. Henderson, 175 F.2d 863, 866 (5th Cir. 1949)). Here, there
was substantial evidence that Campbell’s work on the platform the day of his
injury precipitated the heart attack, including evidence showing that Campbell
traveled up and down hundreds of feet of stairs and expert medical testimony
establishing the requisite causation between that activity and his heart attack.1

1
Petitioners contend the instant case is analogous to Ortco Contractors, Inc. v.
Charptentier, 332 F.3d 283 (5th Cir. 2003), in which we held the employee's heart attack was
a non-compensable injury because, while the attack concluded 15 minutes after he began work,
the employee'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 work." Id. at 291. Unlike Ortco, the Benefits Review Board’s
decision is supported by expert medical opinion that the strenuous work activities Campbell
performed on the day of his death, most notably the climbing of over two-hundred feet of
stairs, was a precipitating cause of the heart attack. This evidence supports the finding that
Campbell’s injury “occurred in the course of employment or was caused, aggravated, or
accelerated by conditions at the work place.” Id. at 287 (citing Conoco v. Director, Office of
Worker’s Compensation Programs, 194 F.3d 684, 687 (5th Cir. 1999)).

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No. 09-60485

Petitioners next argue that the Board’s attorneys fee award was erroneous
in multiple respects. First, petitioners claim that the award of fees in the
amount of $250.00 per hour is unreasonably excessive based on the customary
rates in the geographic area. In support of this argument, petitioners provide
only their own unsupported statements as to the appropriate rate and point to
two administrative decisions finding that $175.00 per hour is a reasonable rate.
However, these arguments do not demonstrate that the Board abused its
discretion in awarding fees considering “the necessary work done,” as well as
“the quality of the representation, the complexity of the legal issues involved,
and the amount of benefits awarded” in this case. See 20 C.F.R. § 702.132.
Second, petitioners contend the Board erred in awarding benefits where
claimant’s counsel utilized quarter-hour minimum billing periods, specifically
pointing to billing entries where counsel listed .2 hours for preparation of a letter
and another .2 hours for attempts to call the claimant. Although we have
disfavored the use of quarter-hour minimum billing periods, petitioners have not
shown that the time billed was not an accurate reflection of the time actually
expended. See Conoco, 194 F.3d at 692 (noting disapproval of quarter-hour
minimum billing, but affirming award where Board found the billing records
“represented work actually performed”). Finally, petitioners object to an award
of fees where opposing counsel engaged in “block billing,” i.e., describing multiple
activities in only one time entry. Although multiple actions are listed in single
entries, the Board did not abuse its discretion in finding the entries sufficiently
specific to satisfy the requirements of 20 C.F.R. § 702.132.
Accordingly, we conclude the Board did not err in awarding benefits to the
claimant, and find no abuse of discretion in its fee award. The petition for
review is therefore DENIED.

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