IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2008
No. 07-60370 Charles R. Fulbruge III
Summary Calendar Clerk
BERRY BROTHERS GENERAL CONTRACTORS INC; ZURICH
AMERICAN INSURANCE COMPANY
Petitioners
v.
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; PERRY W TAYLOR
Respondents
Petition for Review from the
Benefits Review Board
BRB Nos. 06-0675 & 06-0675A
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Berry Brothers (“Berry”) petitions for review of the final decision of the
Benefits Review Board (“Board”) affirming an administrative law judge’s (“ALJ”)
decision. The ALJ found Berry responsible for an injury suffered by Perry
Taylor (“Taylor”) pursuant to the Longshore and Harbor Workers’ Compensation
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-60370
Act (“LHWCA”), as amended, 33 U.S.C. § 901 et seq. Berry’s petition is
DENIED.
I. FACTS AND PROCEEDINGS
On April 7, 2004, while working as a welder for Berry, Taylor injured his
right knee when the catwalk on which he was working flipped. He continued
working the day of his injury and the following day. He was off for two weeks
because of a lack of work. After returning to work for Berry, he sought medical
attention and was removed from work on June 8, 2004 by Dr. Fitter who
prescribed Vioxx for Taylor. Fitter returned Taylor to work on June 22, 2004,
but Taylor did not return to work for Berry. In his deposition, Fitter testified
that without attempting to engage in work activities, a patient would not know
if the disability were temporary or permanent.
Taylor went to work for other employers. He stopped taking Vioxx and his
knee pain returned. He went to see Fitter again in November 2004 who
recommended an MRI of Taylor’s knee, but Berry canceled the MRI because it
was too expensive. In February 2005, Taylor saw Dr. Blanda about his knee.
Blanda recommended an arthrogram and reviewed an MRI that Taylor had paid
for himself. Blanda recommended arthroscopic surgery. He also testified in his
deposition that activities normally performed by a welder would aggravate or
exacerbate Taylor’s knee condition. Blanda indicated that Vioxx would have
relieved the symptoms of Taylor’s injury.
Taylor filed a notice of controversion on December 20, 2004. On June 3,
2005, he asked the Department of Labor to refer the matter to an ALJ for
disposition. It was referred to an ALJ on June 8, 2005. On November 23, 2005,
Berry moved for leave to file a third-party complaint. The ALJ denied the
motion on December 7, 2005 because trial was set for January 2006 and Taylor
would be prejudiced by the continuance resulting from the addition of a third
party. After a hearing, the ALJ found that Berry was the employer responsible
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for Taylor’s injury. The ALJ decided that Berry, as opposed to Taylor’s
employers subsequent to the catwalk accident, was responsible for Taylor’s
temporary disability benefits and medical expenses because Taylor’s condition
was the natural progression of the original injury and not the aggravation of a
prior injury. The Board affirmed.
In its petition, Berry argues that the Board erred in affirming the ALJ’s
finding that Taylor’s continued pain was a natural progression of his catwalk
injury. It also asks this Court to review the ALJ’s denial of its motion for leave
to file a third-party complaint.
II. STANDARD OF REVIEW
We review a decision of the Benefits Review Board using the
same standard the Board applies to review a decision of the ALJ:
whether the decision is supported by substantial evidence and is in
accordance with law. Substantial evidence is evidence that provides
a substantial basis of fact from which the fact in issue can be
reasonably inferred . . . more than a scintilla . . . more than create
a suspicion . . . such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. The substantial
evidence standard is less demanding than that of preponderance of
the evidence, and the ALJ’s decision need not constitute the sole
inference that can be drawn from the facts.
Moreover, we may not substitute our judgment for that of the
ALJ, nor reweigh or reappraise the evidence, but may only
determine whether evidence exists to support the ALJ’s findings.
All doubts are to be construed in favor of the employee in accordance
with the remedial purposes of the act.
New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030–31 (5th Cir. 1997)
(internal quotations and citations omitted).
III. APPLICABLE LAW
“[T]he aggravation rule is a doctrine of general workers’ compensation law
which provides that, where an employment injury worsens or combines with a
preexisting impairment to produce a disability greater than that which would
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have resulted from the employment injury alone, the entire resulting disability
is compensable.” Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.
1986). An aggravation of a preexisting condition can be an injury under the
LHWCA. Id. Thus, “a single employer may be held liable for the totality of an
injured worker’s disability, even though the disability may be attributable to a
series of injuries that the worker suffered while working for more than one
employer.” Metro. Stevedore Co. v. Crescent Wharf & Warehouse Co., 339 F.3d
1102, 1104 (9th Cir. 2003).
[I]n cases where the disability is the result of cumulative traumas,
so-called ‘two-injury’ cases, the responsible employer depends upon
the cause of the worker’s ultimate disability. If the worker’s
ultimate disability is the result of the natural progression of the
initial injury and would have occurred notwithstanding a
subsequent injury, the employer of the worker on the date of the
initial injury is the responsible employer. However, if the disability
is at least partially the result of a subsequent injury aggravating,
accelerating or combining with a prior injury to create the ultimate
disability, we have held that the employer of the worker at the time
of the most recent injury is the responsible, and therefore liable,
employer.
Id. at 1105.
IV. DISCUSSION
A. Aggravation Rule
Berry argues that the Board erred in affirming the ALJ’s finding because
of the testimony of Doctors Fitter and Blanda. Fitter testified that “repeated
deep knee bends can accelerate the degenerative process. In other words, make
it worse.” He said that such activities “can be expected to aggravate . . . arthritic
change.” However, Fitter also testified that he returned Taylor to work and that
Taylor had to engage in regular work activities to know if the arthritic condition
was a temporary or permanent condition. Fitter concluded that the catwalk
“accident was a significant factor in developing symptoms from [Taylor’s]
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No. 07-60370
arthritis.” He also agreed that Taylor’s condition was a normal progression of
an arthritic condition that became painful as a result of the catwalk accident.
Blanda testified that the activities of a welder would probably exacerbate
a knee condition like Taylor’s. He stated “[i]f you have an injury and you
continue to abuse the joint with severe wear and tear problems, then you’re
going to cause further damage.” Blanda also said “an injury predisposes or
causes degeneration in many cases . . . .”
Berry relies on four cases where an employee’s last employer was held
responsible for aggravating a condition originally suffered while working for a
previous employer. In Kelaita v. Director, Office of Workers’ Compensation
Programs, the Ninth Circuit held the last employer responsible for the injury
because the employee suffered ”pain flare-ups . . . related to his work” at the last
place of employment. 799 F.2d 1308, 1312 (9th Cir. 1986). In Foundation
Constructors, Inc. v. Director, Office of Workers Compensation Programs, the
Ninth Circuit held the last employer responsible for a preexisting back condition
which deteriorated so much over the six months the employee worked for the
last employer that he had to leave the job. 950 F.2d 621, 622, 625 (9th Cir. 1991).
In Metropolitan Stevedore Company, the Ninth Circuit held that an employer
was responsible for an employee whose previous condition got progressively
worse over one day of work, the only day that employee worked for the company.
339 F.3d at 1104, 1107. In Delaware River Stevedores, Inc. v. Director, Office of
Workers’ Compensation Programs, the Third Circuit held the last employer
responsible when the employee suffered a flare-up of pain after months of
working long hours that resulted in a final debilitating event. 279 F.3d 233,
242–43 (3d Cir. 2002).
None of these cases are applicable. There is no indication in the record
that Taylor suffered from increased pain, a flare-up of pain, or a worsening of his
condition caused by his work for a subsequent employer. While Fitter and
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No. 07-60370
Blanda opined that strenuous activity consistent with welding work would likely
aggravate an injury like Taylor’s, nothing indicates that it actually did. The
record indicates that Taylor’s condition remained the same after his injury, but
the symptoms were reduced while he was taking Vioxx. Blanda’s testimony that
Vioxx would reduce Taylor’s pain is consistent with the ALJ’s finding that
Taylor’s pain was a natural progression of the original injury. Under the
deferential substantial evidence standard of review, this Court must deny
Berry’s petition.
B. Denial of Motion for Leave to File Third-Party Complaint
Berry argues that the ALJ abused its discretion by denying its motion for
leave to file a third-party complaint. Upon the filing of a petition by a party, the
courts of appeals “shall have jurisdiction of the proceeding and shall have the
power to give a decree affirming, modifying, or setting aside, in whole or in part,
the order of the [Benefits Review] Board . . . .” 33 U.S.C. § 921(c). Berry does not
allege that it raised the denial of its motion in its petition to the Board. There
is no mention of the denial of the motion in Berry’s petition for review to the
Board, nor in the Board’s decision and order. Because Berry did not raise this
issue before the Board, “[w]e therefore may not consider it.” James J. Flanagan
Stevedores, Inc. v. Gallagher, 219 F.3d 426, 437 (5th Cir. 2000); see also United
States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36–37 (1952).
V. CONCLUSION
Berry’s petition is DENIED.
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