UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60634
SHELL OFFSHORE, INC.,
Petitioner,
VERSUS
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR; FERNON GILLIAM,
Respondents.
CONSOLIDATED WITH
No. 96-60692
SHELL PIPE LINE CORP.,
Petitioner,
VERSUS
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; LEE H. CAFIERO,
Respondents.
On Petition for Review of the Decision of the
Benefits Review Board
September 24, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
BACKGROUND
These consolidated appeals present two issues: 1)whether the
Omnibus Consolidated Rescissions and Appropriations Act of 1996
violates due process by automatically affirming claims older than
one year as of September 12, 1996 and 2) what compensation, if any,
two offshore workers are entitled to under the Longshore and Harbor
Workers’ Compensation Act. We find the Appropriations Act
constitutional. We also affirm the compensation awarded to Gilliam
and vacate and remand the issue of compensation due to Cafiero.
I. No. 96-60634
Fernon Gilliam (“Gilliam”), a lease operator for Shell
Offshore, Inc. (“Shell”) injured his back on a platform in the Gulf
of Mexico. Gilliam reported his injury to his foreman, but he
continued to work for the remainder of his seven-day shift.
Gilliam returned to shore for a seven day leave. During this time,
he sought no medical assistance although he still experienced back
pain. When Gilliam returned to work, he completed another seven-
day shift despite having trouble performing his normal duties.
During his next week off, Gilliam still felt pain in his lower
back, which intensified after he assembled a swing set for his
granddaughter. Gilliam, however, returned to work for another
seven-day shift, but again, he had trouble performing his normal
duties. When Gilliam finished this shift, he went to the hospital.
In the course of his treatment, Gilliam consulted nine
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doctors. All agreed that Gilliam had suffered a back injury, but
they disagreed as to whether the primary cause of the injury was
the work-related accident or his assembly of the swing set.
Eventually, Gilliam filed for benefits under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), and he received a
hearing before an Administrative Law Judge (“ALJ”). Based on the
medical evidence, the ALJ concluded that the injury was compensable
and awarded Gilliam benefits. Shell appealed to the Benefits
Review Board (“BRB”).
II. No. 96-60694
Lee Cafiero, a meter technician for Shell Pipe Line Corp.
(“Shell”), injured his back by slipping on steps of a heliport.
The parties stipulated that Cafiero’s injury was work related, and
Shell voluntarily paid benefits to Cafiero under two separate
employee benefit plans, the Shell Disability Benefit Plan (“SDB
Plan”) and the Shell Disability Pension Plan (“SDP Plan”).
Apparently unsatisfied with his benefits package, Cafiero
claimed LHWCA benefits and received a hearing before an ALJ, who
ordered Shell to pay Cafiero compensation benefits. Shell filed an
appeal with the BRB.
III. The Appropriations Act
On September 12, 1996, the BRB affirmed the ALJ’s decisions in
the two cases pursuant to the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, § 101(e), 110
Stat. 1321 (1996)(the “Appropriations Act”). The Appropriations
Act required, in part, that all claims pending before the BRB for
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over one year, as of September 12, 1996, be automatically affirmed.
Shell appealed both cases contending that: 1) the
Appropriations Act violated Shell’s Fifth Amendment due process
rights; 2) Gilliam’s injury was the result of an independent,
supervening cause which ended Shell’s liability; 3) Cafiero waived
his right to extra compensation by not filing a brief on the issue
with this Court; 4) if Cafiero did not waive, then Shell deserved
credit for the monies it had already paid to him; and 5) Cafiero’s
post injury wage earning capacity should have been based on the
average of his reasonable salary range.
DISCUSSION
I. DUE PROCESS
In these consolidated appeals, Shell asserts that the
provisions of the Appropriations Act automatically affirming the
ALJs’ decisions violate its Fifth Amendment right to due process.
Thus, Shell asks this Court to declare the Appropriations Act
unconstitutional. We disagree.
The essential element of due process is the right to notice
and an opportunity to be heard “at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(internal quotation marks omitted). Not only does the LHWCA as
amended by the Appropriations Act afford Shell a full pre-
deprivation, trial-type hearing before the ALJ, it also grants
Shell a post-deprivation hearing in the Circuit Courts of Appeals.
Accordingly, we conclude that Shell was not deprived of property
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without due process of law, and we affirm the constitutionality of
the Appropriations Act. See Bunol v. George Engine Co., 996 F.2d
67, 69 (5th Cir. 1993) (noting that where a party has had “an
opportunity to be heard ‘at a meaningful time and in a meaningful
manner’ before there was any government interference with its
property rights[, its] rights to due process have been adequately
protected”).
II. GILLIAM’S COMPENSATION UNDER LHWCA
A. Standard of Review
This Court must affirm the ALJ’ decision if it is in
accordance with the law, is rational, and is supported by
substantial evidence. See Mijangos v. Avondale Shipyards, Inc.,
948 F.2d 941, 944 (5th Cir. 1991). Substantial evidence is
evidence that “a reasonable mind might accept as adequate to
support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65
(1988) (internal quotation marks omitted).
B. Gilliam’s Award
The LHWCA makes compensation payable when an employee suffers
accidental injury or death arising out of and in the course of
employment. See 33 U.S.C. § 903 (1984). If an employee shows that
he was injured in a work-related accident, then he benefits from a
presumption that the LHWCA covers his injury. See 33 U.S.C. §
920(a)(1927). The burden of proof then shifts to the employer to
present substantial evidence rebutting the presumption that the
claimant’s injury was work-related. If the employer successfully
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rebuts the presumption, the ALJ must examine the evidence as a
whole to determine whether the injury is work-related. Here,
Gilliam produced evidence that he suffered a work-related injury.
Shell argues that it produced substantial evidence to rebut the
presumption because it showed that assembling the swing set, and
not the work accident, proximately caused Gilliam’s injury.
Generally, the idea of proximate cause, as applied in tort
law, does not apply to the LHWCA. See Bludworth Shipyard, Inc. v.
Lira, 700 F.2d 1046, 1050 (5th Cir. 1983). With only a few
exceptions, the court’s function is at an end once causation in
fact has been established. Id. One exception does arise when the
claimed injury has a supervening, independent cause. Here, Shell
argues that assembling the swing set was just such a cause.
This Circuit has articulated somewhat different standards as
to what constitutes supervening cause. See Bludworth, 700 F.2d at
1046 (noting the tension between two standards); see also Atlantic
Marine, Inc. v. Bruce, 661 F.2d 898, 901 n.5 (5th Cir. 1981).
While Shell urges this Court to hold that one standard has evolved
into the second, controlling standard, the rule in this Circuit is
that only an en banc court can overrule or change what a previous
panel has held. See Wood v. U.S., 863 F.2d 417, 421 (5th Cir.
1989); U.S. v. Nixon, 827 F.2d 1019,1023 (5th Cir. 1987). There
have been no en banc holdings on this issue. We need not decide
which standard is the operative one and we affirm Gilliam’s award
because the facts in this record do not meet either standard for
supervening cause.
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The initial standard was stated in Voris v. Texas Employers
Ins. Ass’n, 190 F.2d 929 (5th Cir. 1951) which held that a
supervening cause was an influence originating entirely outside of
employment that overpowered and nullified the initial injury.
Voris at 934. Here, assembling the swing set did not overpower and
nullify the work-related injury. The ALJ found that the work-
related accident caused the injury and that assembling the swing
set only exacerbated the symptom. This finding is supported by
substantial evidence.
Subsequently, in Mississippi Coast Marine v. Bosarge, 637 F.2d
994, 1000 (5th Cir. 1981) another panel held that a simple
“worsening” could give rise to supervening cause. There, the court
held that “[a] subsequent injury is compensable if it is the direct
and natural result of a compensable primary injury, as long as the
subsequent progression of the condition is not shown to have been
worsened by an independent cause.” Id. at 1000. Here, Shell claims
that under the worsening standard, it should not be held liable for
Gilliam’s injury. Gilliam did not need to seek medical aid until
after he assembled the swing set. Moreover, assembling a swing set
is not an every day activity but involves lifting, bending, and
twisting; therefore, assembling the swing set worsened the injury
and is a supervening cause.
Contrary to Shell’s argument, there is only weak evidence to
suggest that assembling the swing set was a supervening cause. The
evidence does show, though, that Gilliam was having trouble
completing his normal work tasks even before he assembled the
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swing. Nor was assembling the swing an abnormal activity for one
with back pain. The swing set was very light, only six feet high,
and assembling it required little exertion. There is, therefore,
substantial evidence to support the ALJ, and he is the fact finder,
not this Court.
In the alternative, Shell argues that Gilliam’s intentional
misconduct is a supervening cause. Shell points to Bludworth which
concerned a claimant who intentionally withheld a material fact
from his treating physician. Id. at 1046. Shell argues that this
case comes within Bludworth because Gilliam did not inform his
first four doctors of the work accident. Rather, he told the
doctors only about the swing set incident and blamed his pain on
assembling it. Additionally, of the nine doctors who treated
Gilliam, only the sixth knew about both incidents. Shell argues
that, as a result, none of the remaining physicians could treat
Gilliam properly.
We reject this argument. There is no evidence of intentional
misconduct. The facts do not indicate that Gilliam intentionally
withheld any information. Simple oversight is equally likely.
Further, there is no evidence that Gilliam’s failure to inform all
nine of his doctors of both incidents affected his treatment.
III. CAFIERO’S COMPENSATION UNDER LHWCA
Cafiero filed a brief in this Court only on the
constitutional issue. As Shell has pointed out, there is authority
within this Circuit that a party who inadequately briefs an issue
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waives the claim. Villenueva v. CNA Ins. Cos., 868 F.2d 684, 687
n.5 (5th Cir. 1989); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994). In CNA, the insurance company raised an issue with this
Court that had no statutory support; thus, there was no legal basis
on which we could decide the issue. In Cinel, the appellant
attempted to raise a new issue which had not been briefed. Again,
this Court had no legal basis upon which to decide the issue.
Although Cafiero failed to brief the issues of his
compensation as raised by Shell, we will decide the issues. Here,
the rule does not apply because Cafiero has neither attempted to
raise new issues nor raised an issue without sufficient statutory
support. This case is similar to Louisiana Landmarks Soc. v. City
of New Orleans, 85 F.3d 1119, 1122 n.3 (5th Cir. 1996) in which we
noted that while the appellee had not argued an issue in its brief,
we could still consider the issue since the appellant’s brief had
addressed it. “The policies . . .[of] avoid[ing] piecemeal
litigation and conserv[ing] judicial resources . . .are less
implicated when the party against whom waiver is asserted is the
appellee.” Laitram Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed.
Cir. 1997). Cafiero is the Appellee and Shell, the Appellant, has
briefed the issues; therefore, this Court may decide the issues on
the merits.
A. THE ALJ’S GRANT OF CREDIT TO SHELL
l. Standard of Review
Shell urges this Court to consider whether the ALJ’s grant of
credit was proper as a matter of law. As such, it would be subject
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to de novo review. We conclude, however, that the resolution of
this issue rests upon a factual dispute because the question is
whether the half-pay that Shell paid Cafiero was an advance payment
of compensation. Therefore, the standard of review is substantial
evidence.
2. The Merits
The parties agree that Cafiero is entitled to LHWCA benefits,
but Shell contends that it deserved a 100% credit for the full-pay
and half-pay it paid Cafiero under the Shell Disability Benefits
Plan (“SDB Plan”)1.
Section 914(j) of the LHWCA provides that “[i]f the employer
has made advance payments of compensation, he shall be entitled to
be reimbursed out of any unpaid installment or installments of
compensation due.” 33 U.S.C. § 914(j)(1984). The BRB has stated
that “[I]f [the] employer paid the benefits and intended them as
advance payments of compensation,[the] employer is entitled to a
credit under Section 14(j).” Mijangos v. Avondale Shipyards, Inc.,
19 BRBS 15, 21 (1986). The employer, however, is not entitled to
a credit when it continues the employee’s salary under a formal
salary continuance plan unless it shows that these payments were
intended to be advance payments of compensation. See Fleetwood v.
Newport News Shipbuilding and Dry Dock Co., 16 BRBS 282 (1984),
aff’d, 776 F.2d 1225 (4th Cir. 1985).
Here, the ALJ found that the SDB Plan provided an employee
1
Shell does not dispute on appeal the payments it made to
Cafiero under the SDP Plan.
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with 26 weeks of full-pay and 26 weeks of half-pay for an
occupational disability regardless of length of employment. During
the half-pay periods, disability benefits were to be reduced if the
half pay plus any workers compensation totaled more than the
worker’s full pay. The ALJ found that Shell intended the 26 weeks
of full-pay to be advance compensation within the meaning of
Section 914(j). As a result, Shell would get full credit for
monies paid during the full-pay period. The ALJ, however, found
that the 26 weeks of half-pay were not advance compensation
payments within Section 914(j). In coming to this conclusion, the
ALJ relied upon the testimony of a Shell Human Resources
representatives who stated that the half-wage payments under the
SDB Plan were not intended to be advance compensation payments.
Moreover, while the full-wage payments were to be offset by
compensation payments, the SDB Plan stated that the half-wage
payments were not to be so offset.
When the ALJ signed the order implementing this plan, however,
he gave Shell credit for only two-thirds of the full-wage payments
it made. The ALJ gave no explanation for this result despite the
fact that it found Shell entitled to full credit for the full-wage
payments. Because there is no factual support in the record for
this result, we find there is no substantial evidence to support
the two-thirds credit. Therefore, we modify the judgment to
reflect Shell’s entitlement to full credit for the full-wage
payments and affirm.
As for the half-pay benefits, we affirm the ALJ’s decision.
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We must affirm if the decision is supported by substantial
evidence. Here, Shell’s own employee testified that the half-wage
payments were not intended as advance compensation payments, and
its SDB Plan states that the half-wage payments were not to be
offset while the full-wage were. Shell argues that the ALJ’s
decision does not make sense because both the half- and full-pay
benefits were coming from the same plan, the purpose of which was
to compensate an injured employee. The law, however, states that
the employer must intend the payment as an advance compensation
payment. Mijangos 19 BRBS at 21. Shell submits that the only
change in intent was the amount of benefits to be paid not the
purpose for paying the benefits. Such a submission, however, is
not strong enough to overcome the evidence of Shell’s own employee
who gave contrary testimony or the evidence of Shell’s own plan
which states that half-wages are not to be offset.
B. CAFIERO’S POST INJURY WAGE EARNING CAPACITY
1. Standard of Review
Although Shell again urges this Court to adopt a de novo
standard, we decline because the issue is factual not legal. Here,
the issue turns on whether substantial evidence supports the ALJ’s
finding that $35,000 was the correct wage earning capacity.
2. The Merits
The LHWCA provides that Cafiero’s post-injury wage earning
capacity should be fixed “as shall be reasonable.” See 33 U.S.C.
§ 908(h)(1984). The BRB has held that an average of the range of
salaries identified for suitable alternative employment is a
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reasonable method for determining a claimant’s post-injury wage
earning capacity. See Abbot v. Louisiana Ins. Guaranty Ass’n, 27
BRBS 192, 205 (1993).
Here, Cafiero previously had worked as an insurance salesman,
and Shell presented uncontradicted evidence that his post-injury
wage earning capability ranged form $35,000 to $50,000. Instead of
choosing the average, as the BRB has held, the ALJ chose $35,000 as
Cafiero’s capacity. There is no explanation for this decision and
we find no evidence in the record to support the ALJ’s decision not
to use the average of Cafiero’s earning capacity. We vacate the
decision and remand it to the ALJ for reconsideration consistent
with this opinion.
CONCLUSION
For the foregoing reasons we AFFIRM in part and VACATE and
REMAND in part.
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Shell Offshore, Inc. v. Director, Office of Worker's Compensation Programs
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-09-24
Citations: 122 F.3d 312
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