Louisiana Insurance Guaranty Ass'n v. Bunol

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60508

LOUISIANA INSURANCE GUARANTY ASSOCIATION

Petitioner

VERSUS

ROBERT BUNOL; DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR

Respondents

Petition for Review of an Order
of The Benefits Review Board

May 12, 2000

Before HIGGINBOTHAM and SMITH, FALLON, District Judge:
Circuit Judges, and FALLON, District
Judge.* The Louisiana Insurance Guaranty
Association ("LIGA") appeals from a
decision by the Benefits Review Board
*
District Judge of the Eastern ("BRB") of the United States Department of
District of Louisiana, sitting by designation. Labor concerning benefits awarded to

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Robert Bunol pursuant to the Longshore because his employer went out of business.1
and Harbor Workers' Compensation Act LIGA moved to reconsider the ruling of the
("LHWCA"). Because we find that ALJ, but its motion was denied. On appeal,
substantial evidence supports the the BRB remanded the case to another ALJ
determination of the BRB, we affirm. who granted LIGA's request for
I. modification. The second ALJ ordered
Robert J. Bunol, Sr. was a diesel LIGA to pay compensation for temporary
mechanic who was injured in February and total disability benefits from August 1, 1979
again in August of 1979 while working for through September 4, 1979, and from April
the George Engine Company in Harvey, 28, 1980 through July 9, 1980 based on an
Louisiana. He suffered injuries to his back average weekly wage of $452.13.
and spine and underwent surgery on April The ALJ further ordered LIGA to pay
28, 1980. Following his operation, Bunol permanent partial disability benefits for the
worked in the repair shop, became an period from September 1, 1988 through
instructor, and ultimately resumed his full August 1, 1990 based on an average weekly
duties six months to a year later. wage of $452.12 and a residual earning
In March, 1988, Bunol was laid off from capacity of $188.25. For August 2, 1990 to
his job when the George Engine Company August 31, 1993, Bunol was awarded a
went bankrupt. He then began working for residual earning capacity of $150.42, and
his brother's insurance company in from September 1, 1993 onward a residual
September, 1988 until it was sold in earning capacity of $160.80. The second
August, 1990. Since 1990, he has not ALJ, however, relieved LIGA of its duty to
returned to any work. pay benefits for the period from 1980 to
Bunol filed a complaint for benefits 1988.
under the LHWCA after losing his job at Bunol appealed and LIGA cross
the insurance company. An administrative appealed the second ALJ decision. The BRB
law judge ("ALJ") found that Bunol failed affirmed the findings of the ALJ and also
to provide his employer with sufficient reinstated the award of the first ALJ for
notice of the February, 1979 injury and permanent partial disability compensation for
therefore was not entitled to disability the period from 1980 through 1988. LIGA
benefits. The ALJ did, however, award now appeals the second BRB decision to this
Bunol benefits related to his August, 1979 court.
claim. Bunol received temporary total II.
disability benefits at a compensation rate of We review an appeal from a decision by
$306.91, based on a weekly wage of the BRB de novo. Sketoe v. Exxon Co.,
$460.37, for the period between the date of USA, 188 F.3d 596, 597 (5th Cir. 1999). In
the accident until December 18, 1980. reviewing a decision of the BRB, we only
Thereafter, Bunol was entitled to permanent consider whether the BRB correctly found
partial disability benefits at a weekly rate of
$146.66 based on a residual wage capacity
1
of $240.38. The Louisiana Legislature created
Bunol sought compensation from LIGA LIGA to cover claims against bankrupt
employers and their insurers. See La. Stat.
Ann. § 22:1375, et. seq.

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that the ALJ's findings of fact are supported erred in determining the causal relationship
by substantial evidence and consistent with between Bunol's disability and any work-
the law. See Avondale Indus. v. Director, related accident. When Bunol claimed
OWCP 977 F.2d 186, 189 (5th Cir.1990). compensation under the LHWCA, the law
"[W]e may not substitute [our] judgment afforded him a presumption that his injury
for that of the ALJ, nor may we reweigh or arose out of and in the course of his
reappraise the evidence, instead we inquire employment. See 33 U.S.C. § 920(a). Once
whether there was evidence supporting the the presumption is invoked, the burden shifts
ALJ's factual findings." Boland Marine & to the employer to rebut the presumption
Manufact. Co. v. Rihner, 41 F.3d 997, 1002 with substantial evidence that his condition
(5th Cir. 1995) (quoting Empire United was not caused or aggravated by his
Stevedores v. Gatlin, 936 F.2d 819, 822 (5th employment. See Noble Drilling Co. v.
Cir. 1991)). Therefore, "we must affirm Drake, 795 F.2d 478, 481 (5th Cir. 1986). If
decisions that conclude correctly that the the employer meets this standard, then the
ALJ's findings are supported by substantial presumption disappears. Id.
evidence and are in accordance with the LIGA fails to overcome its burden. The
law." Darby v. Ingalls Shipbuilding, Inc., evidence considered by the ALJ and
99 F.3d 685, 688 (5th Cir. 1996). reviewed by the BRB shows that Bunol went
A. to see his doctor either the day of or the day
LIGA argues that the evidence in the after his July 31, 1979 injury. He reported
record is insufficient to support the the injury to the employer who in turn filed a
conclusions of the BRB. First, LIGA report. Although LIGA contends that the
suggests that the BRB erred in determining testimony of Bunol's doctor indicates that he
the causal relationship between Bunol's thought he was treating the injury of
disability and any work-related accident.2 February, 1979, the ALJ as fact finder
LIGA next asserts that sufficient evidence determines the credibility of witnesses and
supports neither the BRB's findings decides issues of conflicting evidence. See
regarding the nature and extent of Bunol's Avondale Indus., 977 F.2d at 189. LIGA
disability nor its determination of the presents no evidence to challenge the ALJ
average weekly wage afforded to Bunol. determination, and we therefore find the
LIGA then argues that Bunol was not conclusion of the BRB to be supported by
injured on a situs covered by the LHWCA. substantial evidence.
Finally, LIGA disputes the BRB's C.
determination concerning Bunol's residual LIGA next contends that the evidence
wage earning capacity and demonstration of considered by the ALJ and the BRB is
suitable alternative employment. insufficient to sustain a finding that Bunol
B. had worked in pain and with a decreased
We first consider whether the BRB earning capacity sufficient to justify partial
disability benefits for the period from 1980
to 1988.
2
We need not reach the issue of Bunol bears the initial burden of
whether the BRB's decision was issued demonstrating that he cannot return to his
timely because Bunol adopts the argument usual work in order to establish a prima
of LIGA in its brief.

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facie case for total disability. If he meets Bunol did work failed to fairly represent an
this burden, then his employer must entire year of work. Therefore, the ALJ
establish the availability of suitable applied the methodology of section 910(c)
alternative employment. See P&M Crane that provides a formula to calculate average
Co., 930 F.2d 424 (5th Cir. 1991). Even if weekly wages when the other standards
able to work, Bunol may be found to be "cannot reasonably and fairly be applied."
totally disabled if he is working with Id. § 910(c). The BRB affirmed.
extraordinary effort and in excruciating The courts give broad discretion to ALJs
pain. See Argonaut Ins. Co. v. Patterson, in determining appropriate wage awards. See
846 F.2d 715 (11th Cir. 1988). These National Steel & Shipbuilding Co. v.
factors are also relevant in determining an Bonner, 600 F.2d 1288, 1292 (9th Cir. 1979).
award of permanent partial disability and LIGA offers no evidence to rebut the
wage-earning capacity after an injury. See conclusion of the ALJ. Rather, LIGA
33 U.S.C. § 908(c)(21)(h). suggests an alternative method for
Both ALJs found that Bunol worked in calculating his wage. The ALJ made no
substantial pain from 1980 to 1988. In its error of law by applying section 910(c) and
decision, the BRB notes that Bunol testified found that the evidence showed Bunol had
that he worked in constant pain and that his not worked substantially the whole year and
doctor placed restrictions on his physical therefore did not satisfy the section 910(a)
activities at work. LIGA offers no evidence criteria. Thus, we do not find that the BRB
to rebut the findings of the BRB. erred in affirming the ALJ decision.
Therefore, according to our standard of E.
review, we find that the BRB properly LIGA additionally asserts that sufficient
found that Bunol worked in pain and is evidence does not demonstrate that Bunol's
entitled to benefits for the period from 1980 injury occurred on a covered situs. Section
to 1988. 3(a) of the LHWCA restricts compensation
D. awards to injuries "occurring on the
LIGA further insists that the BRB navigable waters of the United States
improperly calculated Bunol's average (including any adjoining pier, wharf, dry
weekly wage to determine his benefits. The dock, terminal, building way, marine railway,
methods for calculating average weekly or other adjoining area customarily used by
wages are listed at 33 U.S.C. section 910. an employer in loading, unloading, repairing,
LIGA contends that the ALJ should have dismantling, or building a vessel)." 33
applied section 910(a) rather than section U.S.C. § 903(a).
910(c) to determine his average weekly LIGA claims that evidence exists to
wage because Bunol worked "substantially support a finding by the ALJ that Bunol's
the whole of the year." See 33 U.S.C. § accident occurred in a field in Baton Rouge
910(a) (providing the computation formula or on a dock in Harvey. The ALJ, however,
for injured employees who worked "during found that the evidence showed that the
substantially the whole of the year injury occurred on the dock. The BRB
immediately preceding injury"). Id. further concluded that Bunol's employer
The ALJ determined that section 910(c) conducted maritime activity at this facility.
applied because the forty-two weeks that Again, the ALJ weighed conflicting evidence

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and rendered a decision that a reasonable
mind might accept as adequate to support a
conclusion. See Avondale Indus., 977 F.2d
at 189 (defining "substantial evidence" as
evidence that provides a substantial basis of
fact from which can be reasonably inferred)
(internal quotation omitted). Therefore, we
find that the evidence supports the BRB's
determination that Bunol's injury occurred
on a situs covered by the LHWCA.
F.
Finally, LIGA disputes the BRB's
determination concerning Bunol's residual
wage earning capacity and demonstration of
suitable alternative employment.3 LIGA
again provides no evidence to challenge the
findings of the BRB. We may not second-
guess the determinations of the ALJ and the
BRB absent a showing that substantial
evidence does not support their conclusions.
See Rihner, 41 F.3d at 1002. Accordingly,
we find that the record supports the fact-
finding of the ALJs and the determination of
the BRB.

Respondent’s motion to dismiss the petition
for review is MOOT.

AFFIRMED.

3
At oral argument, LIGA's counsel
stated that LIGA challenges, on appeal,
only the BRB's factual determination and
raises no issue as to LIGA's duty, under
these facts, to find suitable alternative
employment. Accordingly, we decide only
the factual issue.

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