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Ortco Contractors, Inc. v. Charpentier

Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-05-21
Citations: 332 F.3d 283
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30 Citing Cases

                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       May 21, 2003

                      __________________________                Charles R. Fulbruge III
                                                                        Clerk
                             No. 02-60447
                           Summary Calendar
                      __________________________


ORTCO CONTRACTORS, INC; LOUISIANA WORKERS’
COMPENSATION CORPORATION,
                                                            Petitioners,

                                versus

LYNETTE CHARPENTIER, Widow of Zeby Charpentier, Jr;
DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR,
                                                            Respondents.

       ___________________________________________________

                 Petition for Review of an Order
                   of the Benefits Review Board
       ___________________________________________________



Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

Wiener, Circuit Judge:

     Petitioners Ortco Contractors, Inc. (“Ortco”) and Louisiana

Workers’ Compensation Corporation (collectively, “Petitioners”)

seek our review of the Benefits Review Board’s (“BRB”) order

affirming the administrative law judge’s (“ALJ”) determination,

following   an   initial   reversal   and   remand   by   the    BRB,    that

Respondent Lynette Charpentier is entitled to benefits under the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”).                   We

conclude that the BRB used an improper evidentiary standard in its

review of the ALJ’s initial determination, and that the ALJ had
reached the correct result in his initial holding, viz., that

Petitioners had successfully rebutted Charpentier’s presumed prima

facie entitlement to benefits under the LHWCA.             We therefore grant

the petition for review, vacate the BRB’s decisions, and remand

with instructions.

                         I.    FACTS AND PROCEEDINGS

     The origin of this case was the death of Zeby Charpentier

(“Decedent”), a painter who died shortly after reporting to work

one morning.       His death was the culmination of a heart attack that

had manifested symptoms the prior evening, when the Decedent

complained to his wife about “heartburn.”             Presumably unaware of

the seriousness of his medical condition, Decedent sought no

medical attention       that    night   or   the   next   morning;   he   merely

purchased some over-the-counter palliative medication that morning

on his way to his painting job with Ortco.           Within approximately 15

minutes    after    starting    work,   Decedent’s    ongoing   heart     attack

escalated to a full-blown cardiac arrest.                 Efforts by medical

personnel failed to revive him.

     As Decedent’s widow, Lynette Charpentier filed a claim for

general death benefits and coverage of funeral expenses under the

LHWCA.1    In April 2000, the ALJ denied her claim, finding first

that she had failed to establish a prima facie case that Decedent’s

injury was work-related; then proceeding on the assumption of a


     1
         32 U.S.C. § 909.

                                        2
prima facie case but concluding that Petitioners had rebutted the

presumption of coverage and of work-related injury or aggravation.

Specifically, the ALJ noted that “there is no evidence of any

strenuous    activity     or   stressful      situation     associated   with

[Decedent’s] employment which could have caused, aggravated or

accelerated his condition.”

     In reaching his decision, the ALJ relied on the testimony of

three physicians that Decedent’s heart attack and his resulting

death were not work-related.            Dr. Joseph Tamimie reported this

conclusion unequivocally and unconditionally.             Dr. Walter Daniels

initially believed that Decedent’s death “may have been work

related,” but ultimately agreed with Dr. Tamimie’s conclusions

after reading    his    report.    Finally,      Dr.   Clement   Eiswirth,   a

cardiologist, testified, according to the ALJ, that Decedent “would

have died no matter where he was or what he was doing because the

only action that would have affected the outcome would have been if

[Decedent] had gone to the hospital.”            Dr. Eiswirth also stated

that “the only connection between [Decedent’s] death and his

employment was the fact that [Decedent] was at work when the heart

attack process concluded.”        All three doctors confirmed that the

medical records indicate that the heart attack began the previous

evening, while Decedent was at home, and progressed continually

until his fatal cardiac arrest the next morning.

     After    the       ALJ    denied       Charpentier’s     petition   for

reconsideration, she appealed to the BRB.                 In an unpublished

                                        3
opinion, dated May 9, 2001, the BRB vacated the ALJ’s decision and

remanded for further proceedings.     The BRB first noted that, under

the LHWCA, Charpentier had established her prima facie case when

she showed that Decedent died at his place of employment, which

creates a presumption in favor of coverage under the LHWCA (the Ҥ

20(a) presumption”).2   The BRB ruled that if the Petitioners could

not affirmatively rebut the § 20(a) presumption, Charpentier would

be entitled to benefits under the LHWCA.

     The BRB then assessed whether Petitioners had successfully

rebutted Charpentier’s § 20(a) presumption.     The three physicians

who testified on behalf of Petitioners, the BRB noted, “could not

rule out” that Decedent’s employment contributed to the fatal

result of his heart attack.    The BRB further explained that “none

of these physicians unequivocally state [sic] that decedent’s work

activities on October 12, 1996, did not contribute to or accelerate

his death.”   The BRB therefore remanded the case to the ALJ, ruling

that Charpentier met the § 20(a) presumption and that Petitioners

had failed to rebut it.

     On remand, the ALJ did not hear any further testimony or

receive any additional evidence.      In his second opinion, the ALJ

simply stated that Charpentier met her prima facie case, and that,

under the evidentiary standard set by the BRB in vacating the ALJ’s

prior decision, the Petitioners had failed to rebut Charpentier’s



     2
         33 U.S.C. § 920(a).

                                  4
§ 20(a) presumption.     The ALJ awarded Charpentier LHWCA benefits,

and Petitioners appealed to the BRB.

      In a terse, unpublished opinion, the BRB affirmed the ALJ’s

decision following remand.          The BRB noted that, under the law of

the case doctrine, it was bound by its own prior decision, in which

it recognized that Petitioners’ physicians “did not affirmatively

state that the decedent’s employment duties did not aggravate his

underlying condition to result in death, or hasten the decedent’s

death.”   Petitioners timely filed a petition for review.

                               II.    ANALYSIS

A.    Standard of Review.

      Our review of the BRB is limited in scope to “considering

errors of law and making certain that the BRB adhered to its

statutory standard of review of factual determinations, that is,

whether the ALJ’s findings of fact are supported by substantial

evidence and [are] consistent with the law.”3

B.    The Evidentiary Standard For Rebutting The § 20(a) Presumption
      Under The LHWCA.

      Under the LHWCA, a claimant like Charpentier has the burden of

proving a prima facie case for coverage, viz., that (1) an injury

was   suffered,   and   (2)   the    injury   occurred   in   the   course   of

employment or was caused, aggravated or accelerated by conditions




      3
       Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90 (5th
Cir.1990) (quoting Miller v. Central Dispatch, Inc., 673 F.2d 773,
778 (5th Cir. Unit A 1982)).

                                       5
at the work place.4       A claimant’s proof of these two predicates

triggers § 20(a)’s presumption that the injury is work-related and

that the claimant is entitled to coverage.5          To avoid coverage, the

employer     must    affirmatively         rebut   this   presumption    with

“substantial evidence to the contrary.”6            We have repeatedly held

that this evidentiary standard is less demanding than the ordinary

civil requirement that a party prove a fact by a preponderance of

evidence.7

     In the instant case, Petitioners contend that the BRB used an

improper evidentiary standard when it reviewed the ALJ’s first

decision.    We agree.        In vacating the ALJ’s first decision and

affirming the second following remand, the BRB expressed several

different formulations of the requirement imposed by the LHWCA for

proving that an injury is not work-related: (1) “rule out,” (2)

“unequivocally      state,”    and   (3)   “affirmatively   state.”     These

evidentiary standards, Petitioners maintain, run afoul of our

holding in Conoco that the BRB cannot require employers to rebut a

§ 20(a) presumption by “ruling out” every conceivable connection

between the injury and the claimant’s employment.                 The LHWCA

requires a lower evidentiary standard than this —— the employer


     4
        Conoco v. Director, Office of Worker’s Compensation
Programs, U.S. Dep’t of Labor, 194 F.3d 684, 687 (5th Cir. 1999).
     5
         33 U.S.C. § 920(a).
     6
         Id. (emphasis added).
     7
         See, e.g., Avondale Shipyards, Inc., 914 F.2d at 91.

                                       6
must adduce only substantial evidence that the injury was not work-

related.8

      Charpentier,       the     Director      of        the    Office     of     Worker’s

Compensation, and the U.S. Departmant of Labor (collectively,

“Respondents”),        nevertheless,         urge    us        to   affirm      the   BRB’s

decisions.      They invite us to consider the BRB opinions that state

explicitly that “a medical opinion does not have to rule out every

possibility that the injury or death might be work related.”                             The

BRB   used    the     term    “rule   out”    here,       they      maintain,     only    to

paraphrase      Dr.    Eiswirth’s      answer       to    Charpentier’s          counsel’s

question on whether he could “rule out” that Decedent’s exertion at

his job was a contributing factor to the fatality of his heart

attack.      Dr. Eiswirth replied: “No, I cannot” —— meaning, he could

not rule out this possibility with absolute, 100% certainty.

Respondents maintain that we should not penalize the BRB for this

single use of the term “rule out,” and that we should recognize

that the BRB carefully reviewed the entire record and correctly

determined that Petitioners did not meet the “substantial evidence”

requirement.

      Respondents       are    correct   that       the    BRB,      in   repeating      the

obligatory standard of review in each opinion, recognized that its

review of an ALJ’s decision is limited to whether “substantial

evidence” has been submitted to rebut a § 20(a) presumption.                           Yet,



      8
          Conoco, 194 F.3d at 690.

                                          7
after giving lip service to this standard of review, the BRB

proceeded    to   disregard     it   entirely,    repeatedly     violating   the

correct standard in the wording and substance of its opinion.                 In

its initial ruling in this case, the BRB found that the testifying

physicians “could not rule out” that Decedent’s death was work-

related.     The BRB also stated that these physicians could not

“unequivocally state” that Decedent’s death was not work-related.

Again, when reviewing the ALJ’s decision following remand, the BRB

explained    that   Petitioners’      physicians    “did   not    affirmatively

state” and “did not unequivocally state” that Decedent’s heart

attack was not aggravated by his work conditions.                In making such

evidentiary demands on Petitioners, the BRB flagrantly violated our

decision in Conoco that the BRB cannot create a higher evidentiary

hurdle than the “substantial evidence” standard expressly stated in

the LHWCA.

     First, the BRB’s determination that Petitioners’ testifying

physicians “could not rule out” that Decedent’s death was work-

related is in direct violation of our holding in Conoco that the

BRB may not use this standard in assessing evidence under the

LHWCA.     The BRB’s post hoc rationalization in a footnote of its

second   opinion    that   it   was   simply     paraphrasing    Charpentier’s

question of Dr. Eiswirth falls well short of the mark.                  Simply

because a physician answers a question in a deposition that he

cannot “rule out” every conceivable causal connection between a

claimant’s employment and an injury does not justify the BRB’s

                                        8
reliance on such an answer as a de facto evidentiary standard under

the LHWCA. Charpentier’s demand that Dr. Eiswirth “rule out” every

possible nexus between Decedent’s death and the work conditions

clearly asked more of Dr. Eiswirth than is required under the

LHWCA. The BRB may not permit an expressly discredited evidentiary

standard to slip into its review of claims under the LHWCA simply

because it is able to discern this standard directly from the words

of an expert witness’s testimony.

      Second, Respondents efforts to rehabilitate the BRB’s specific

use of the term “ruling out” as innocent is belied by the substance

of the BRB’s two opinions in this case.                 In addition to embracing

Dr. Eiswirth’s failure to “rule out” any possibility, however

remote, that Decedent’s death was work-related, the BRB stated

repeatedly that Petitioners’ failed their evidentiary burden under

the LHWCA because the physicians did not “unequivocally state” or

“affirmatively state” that there was no conceivable connection

between Decedent’s fatal heart attack and his work conditions.

This sets up a far more demanding evidentiary standard than is

specified by the plain words of the LHWCA.

      In   fact,     we    perceive           no   distinction     between   (1)

“unequivocally” or “affirmatively” stating that an injury is not

work-related, and (2) “ruling out” the possibility that an injury

is   work-related.        This   is   a       classic    distinction   without   a

difference.   The meaning of these evidentiary demands is the same.

The BRB cannot allow the previously rejected “ruling out” standard

                                          9
to seep interstitially into its opinions by simply rephrasing it in

more innocuous terms.

     In ignoring Conoco’s injunction that it follow the express

terms of the LHWCA, the BRB appears to have failed to read the

Conoco decision in its entirety: The Conoco court already rejected

similar formulations of the evidentiary standard that the BRB

invokes in the instant case.       In Conoco, the BRB had affirmed an

ALJ’s decision that an employer must “rule out” all possible causal

connections     between   an   injury    and   a   claimant’s   employment

conditions to rebut the § 20(a) presumption.           We did not merely

rebuke the ALJ (and the BRB) for illegitimately engrafting this

extra-statutory requirement on the LHWCA; we also recognized that

the ALJ relied on various formulations of the phrase “rule out,”

quoting from the ALJ’s decision that “the [§ 20(a)] presumption

must be rebutted with specific and comprehensive medical evidence

proving the absence of, or severing, the connection between harm

and employment.”9     We then held such formulation to be equally

repugnant to the LHWCA, noting that “this requirement..., like the

‘ruling out’ standard..., would be incorrect.”10          If an employer

need not submit “specific and comprehensive” evidence to rebut the



     9
          Id. at 688 n.1 (quoting the ALJ’s opinion).
     10
       Id. Furthermore, in the text of the opinion, we summarized
the ALJ’s and BRB’s requirement that an employer has a “burden to
present specific and comprehensive evidence to rebut the [§ 20(a)]
presumption,” id. at 689, and we again criticized this as an
“incorrect burden.” Id. at 690.

                                    10
§ 20(a) presumption, it clearly cannot be required to submit

“unequivocal” evidence to do so.             If a phrase is proscribed, so is

its synonym.

     We thus reaffirm the holding of the Conoco court that the

evidentiary standard for rebutting the § 20(a) presumption is the

minimal requirement that an employer submit only “substantial

evidence to the contrary.”            We continually affirm the BRB and ALJs

on the substantial evidence standard; they must learn to apply that

standard to employers as well as to employees:

     The language [of the LHWCA] does not require a “ruling
     out” standard; indeed, the hurdle is far lower. Indeed,
     the plain language of the statute uses the phrase
     “substantial evidence to the contrary.”      To place a
     higher standard on the employer is contrary to statute
     and case law.    We therefore unequivocally reject the
     “ruling out” standard applied by the [BRB] in this
     case.11

The plain terms of the LHWCA precludes the BRB from fabricating a

stricter       evidentiary    standard,          regardless     of   how   it   may   be

verbalized       ——    whether   it    is   in     terms   of    “specifically        and

comprehensively” stating, “ruling out,” “unequivocally stating,”

“affirmatively stating,” or some other as yet-to-be articulated

phrase.    Considerable time, money and judicial resources could be

saved     by    a     straightforward       application         of   the   words      and

requirements of the LHWCA.

C.   The ALJ Reached the Right Result the First Time.

     Once an employer successfully rebuts a § 20(a) presumption by


     11
          Id. at 690 (citations omitted).

                                            11
producing “substantial evidence” —— more than a modicum but less

than a preponderance —— that the injury was not work-related, the

ALJ must assess the issue of causation by looking at all record

evidence.12      In these cases, the BRB reviews such determinations of

the ALJ under the same deferential standard that governs our

review:         If   the   BRB   determines   that   the   ALJ’s   decision   is

“supported by substantial evidence and is in accordance with the

law,” the ALJ’s decision must be affirmed.13                The BRB “may not

substitute its judgment for that of the ALJ, nor may [it] reweigh

or reappraise the evidence.”14

     Here, the BRB did not give proper deference to the ALJ’s

initial assessment of the evidence, incorrectly erecting a higher

evidentiary hurdle than the one specified in the LHWCA.              Under the

proper standard of review, the ALJ’s first holding, i.e., that

Charpentier was not entitled to LHWCA benefits, was supported by

substantial evidence and was consistent with the law.              That should

have marked the end of the BRB’s review.

     Nevertheless, the BRB vacated the ALJ’s initial decision that

Charpentier was ineligible for benefits under the LHWCA on the




     12
        Gooden v. Director, Office of Worker’s Compensation
Programs, U.S. Dep’t of Labor, 135 F.3d 1066, 1068 (5th Cir. 1998).
     13
       Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991).
     14
          Id.

                                        12
basis of the “aggravation rule.”15        This rule specifies that when

“an employment injury worsens or combines with a preexisting

impairment to produce a disability greater than that which would

have    resulted   from   the   employment   injury    alone,   the   entire

resulting disability is compensable.”16

       At first blush, the aggravation rule might appear to weigh in

favor of Charpentier’s claim.        Decedent’s heart attack, although

clearly having begun the previous evening while he was at home, not

work, concluded fatally some fifteen minutes after he started his

painting work for Ortco the next morning.       Thus, it would appear on

the surface that Decedent’s pre-existing and ongoing heart attack

might have been aggravated by his work, leading to the fatal

cardiac arrest.      If this assessment were correct, then the ALJ

would have erred in failing to acknowledge this causal link in the

aggravation of Decedent’s heart attack.

       We reached such a conclusion in Gooden, when we vacated an

ALJ’s decision that denied LHWCA benefits.            We held that the ALJ

improperly focused on the non-work-related origins of an employee’s

chronic heart condition, which pre-dated by several years the heart



       15
            See Cairns v. Matson Terminals, Inc., 21 B.R.B.S. 252
(1988).
       16
       Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.
1986).    In the instant case, the BRB explained that the
“aggravation rule provides that where an employee’s work
aggravates, accelerates, or combines with a pre-existing condition,
the entire resultant condition is compensable,” citing Wheatley v.
Adler, 407 F.2d 307, 312 (D.C. Cir. 1968) (en banc).

                                     13
attack that struck the employee while he was on the job.         We stated

that “[i]t 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   heart

condition.”17     Thus, in that case, the ALJ erred in failing to

consider the work conditions under which the employee suffered his

actual heart attack.      We remanded with instructions for the ALJ to

make findings that “address the heart attack itself,” not the pre-

existing heart condition.18

     Our decision in Gooden is easily distinguishable from the

record before us in the instant case.           The employee’s injury in

Gooden —— his heart attack —— began and ended on the job.                The

injury was the heart attack in toto; only the cardiac disease pre-

dated the injury and that was for an extended time.          In this case,

it is indisputable that Decedent’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’s work. Unlike the situation in

Gooden, the heart attack in this case did not begin and end

entirely in the context of Decedent’s employment.           Here, Decedent

brought an ongoing heart attack to work with him that morning.           And

—— according to un-rebutted medical testimony —— it would have



     17
          Gooden, 135 F.3d at 1069 (emphases added).
     18
          Id. at 1069.

                                     14
escalated to a fatal cardiac arrest no matter where he was at that

time, with the possible exception of the hospital.

     Respondents nevertheless repeat the BRB’s contention that

Decedent’s employment might have contributed to the fatal nature of

his heart attack, a possibility that the BRB tries to ascribe to

Petitioners’ expert witnesses for not having been able to “rule

out” or “unequivocally” deny. The BRB infers this supposition from

the fact that Decedent’s heart attack, although beginning many

hours earlier when he was at home, turned fatal shortly after his

arrival at work.   Ergo, reasons the BRB, there is “circumstantial”

evidence that Decedent’s working conditions aggravated his pre-

existing heart attack.   We see this evidence not as circumstantial

but as coincidental.

     Of course, the BRB was able to draw this inference only

because it first rejected the ALJ’s detailed findings by employing

the impermissibly stringent standard of review that Petitioners’

expert witnesses must “rule out” or “unequivocally” deny such a

possibility.   In his first decision, the ALJ gave much weight to

the testimony of Dr. Eiswirth, a board-certified cardiologist.19

Dr. Eiswirth related that if “you’re having a heart attack and you

do any physical activity, you’re at increased risk of death.”

(Emphasis added.) Dr. Eiswirth further explained, according to the



     19
       See Conoco, 194 F.3d at 691 (noting that it is within the
discretion of the ALJ to place “greater weight” on one medical
expert than another).

                                 15
ALJ,    that   this   meant   that   “the   only   action   that   would   have

[favorably] affected the outcome would have been if [Decedent] had

gone to the hospital.” (Emphasis added.) In other words, Decedent

could have gone fishing, he could have gone shopping, he could have

mowed his lawn or carried in the groceries —— he could have engaged

in virtually any activity, and not necessarily one involving stress

or exertion —— and the cardiac arrest still would have occurred.

Thus, as the ALJ recognized, it was only happenstance that Decedent

was “at work when the heart attack process concluded.”

       To apply the aggravation rule in this context would empty it

of any meaning under the LHWCA.             If an employee’s pre-existing

injury would necessarily be exacerbated by any activity regardless

of where or when this activity takes place, and an employee happens

to go to work, it is an impermissible leap of logic to say that

there must be a causal connection between the worsening of the

employee’s injury and his work.             There is a causal connection

between the employee’s life activity and his exacerbated injury,

but it does not matter whether this activity happened to take place

at work or elsewhere.         To approve LHWCA benefits in such cases

would be to place a thumb on the scale in favor of LHWCA claimants;

yet the Supreme Court has expressly disapproved when, in the past,

we weighted the LHWCA to the advantage of claimants.20             There is no


       20
       Mendoza, 46 F.3d at 500 n.1 (noting that the Supreme Court
explicitly rejected the “true doubt rule,” which weighted the LHWCA
in favor of claimants by requiring that all doubtful fact questions
be resolved in favor of claimants).

                                       16
reason for us —— or the BRB —— to incur the condemnation of the

Court by doing so again.

     In their appellate briefs, Respondents attempt to buttress the

BRB’s opinions by labeling as contradictory and speculative the

nature of the physicians’ testimony, such as Dr. Daniels’s changing

his conclusion following his review of Dr. Tamimie’s report. These

arguments miss the point entirely.        An ALJ “is a factfinder and is

entitled to consider all credibility inferences. He can accept any

part of an expert's testimony; he may reject it completely.”21

“The ALJ’s selection among inferences is conclusive if supported by

the evidence and the law.”22 Based here on substantial evidence and

the applicable law, the ALJ found that Petitioners had rebutted the

§ 20(a) presumption and had established that there was no specific

causal connection between Decedent’s heart attack turning fatal and

his work.    And, in doing so, the ALJ relied on evidence that was of

significantly greater probative value than substantial.           Thus,

according to the circumscribed scope of our review, this is a

factual finding to which we —— and the BRB —— must defer.23

                           III.   CONCLUSION

     Our review of the record satisfies us that, although the ALJ

initially erred in ruling that Charpentier failed to make a prima


     21
          Avondale Shipyards, Inc., 914 F.2d at 91.
     22
       Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th
Cir. 1995).
     23
          Conoco, 194 F.3d at 690.

                                     17
facie case —— indeed, she did —— the ALJ’s analysis, conclusions,

and holdings after assuming arguendo that the claimant had proved

a     prima   facie   case,   were    correct.      Petitioners       submitted

substantial evidence sufficient to rebut Charpentier’s § 20(a)

presumption, and this evidence established that Decedent’s death at

his     place   of    employment     was,   in   essence,     a    coincidence.

Accordingly, we vacate both opinions of the BRB and remand with

instructions that the case be further remanded to the ALJ for

reinstatement of the his initial holding, which denied benefits to

Charpentier.

PETITION GRANTED;       BRB’s   RULINGS     VACATED;   CASE       REMANDED   WITH
INSTRUCTIONS




                                       18