Conoco, Inc. v. Director, Office of Worker's Compensation Programs

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-60662
_____________________

CONOCO, INC.,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR;
REGINA DIXON PREWITT,
Respondents.
_________________________________________________________________

Petitions for Review of an Order of the
Benefits Review Board
_________________________________________________________________
November 12, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The issues presented in this appeal are (1) whether the U.S.

Department of Labor’s Benefits Review Board (“BRB” or the “Board”)

erred in affirming an award of disability benefits by the

Administrative Law Judge (“ALJ”) and (2) whether the Board erred in

its determination of the proper amount of attorney’s fees awarded

in this matter.
 I

A

We need not set forth the facts at length. In brief summary,

the respondent, Regina Dixon Prewitt, was an employee of the

petitioner, Conoco, Inc. She claims she was injured when struck by

a turnbuckle on her left shoulder or on the left side of her neck

while working on one of Conoco’s offshore oil platforms. As a

result of this claimed injury, Prewitt saw four doctors, a

psychologist, and a vocational specialist. She also visited the

emergency room on two occasions. Although the record indicates the

possibility that the injury never occurred or is a cover for

injuries stemming from an earlier auto accident or weightlifting

activities, and although there appears a probability that Prewitt

has magnified her claim, our factual review is nevertheless

circumscribed.

We review decisions of the Board to determine only whether it

“correctly concluded that the Administrative Law Judge’s order was

supported by substantial evidence on the record as a whole and is

in accordance with law.” Ingalls Shipbuilding, Inc. v. Director,

OWCP, 991 F.2d 163, 165 (5th Cir. 1993) (quoting Avondale Indus. v.

Director, OWCP, 977 F.2d 186, 189 (5th Cir. 1992)).

B

1

2
 Prewitt sought benefits under the Longshore and Harbor

Workers’ Compensation Act (the “Act”), 33 U.S.C. § 901, et seq.,

claiming temporary total disability. Conoco paid benefits through

November 30, 1995, but Prewitt sought payments from December 1,

1995, and thereafter. She also sought additional medical

treatment, contending that at the time of the benefits’ hearing she

had not reached maximum medical improvement. Conoco objected to

the claim for benefits by contending that Prewitt was not credible

and did not suffer a disabling injury; Conoco argued that Prewitt’s

pain was attributable to the earlier car accident. Alternatively,

Conoco contended that if Prewitt did suffer such an injury, she

reached maximum medical improvement in September 1994.

After a hearing, the ALJ awarded benefits to Prewitt.

Specifically, the ALJ evaluated the testimony and medical record

evidence and rejected Conoco’s argument that Prewitt’s testimony

was not credible and thus should be disregarded. The ALJ did not

find the various inconsistencies or discrepancies in Prewitt’s

testimony significant. Instead, the ALJ found Prewitt’s testimony

generally unequivocal and credible.

On the issue of causation, the ALJ applied the presumption in

33 U.S.C. § 920(a), finding that Prewitt established a prima facie

case of an “injury” within the meaning of the Act. To invoke the

section 920(a) presumption, a claimant must prove (1) that she

3
suffered a harm and (2) that conditions existed at work, or an

accident occurred at work, that could have caused, aggravated or

accelerated the condition. See Merrill v. Todd Pacific Shipyards

Corp., 25 BRBS 140 (1991). Once the presumption is invoked, the

burden shifts to the employer to rebut it through facts--not mere

speculation--that the harm was not work-related. See, e.g.,

Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84

(1995); Hampton v. Bethlehem Steel Corp., 24 BRBS 141, 144 (1990);

Smith v. Sealand Terminal, 14 BRBS 844 (1982).

The ALJ required Conoco to present specific and comprehensive

medical evidence to rebut the presumption of a connection between

the harm and employment.1 The ALJ found that Conoco failed to

carry that burden by focusing on Prewitt’s credibility rather than

1
The ALJ’s opinion states:

Once the presumption is invoked, the burden shifts to the
employer to rebut the presumption with substantial
countervailing evidence which establishes that claimant’s
employment did not cause, contribute to or aggravate her
condition. Employer must produce facts, not speculation,
to overcome the presumption of compensability. Reliance
on mere hypothetical possibilities in rejecting a claim
is contrary to the presumption created by Section 20(a).
Rather, the presumption must be rebutted with specific
and comprehensive medical evidence proving the absence
of, or severing, the connection between harm and
employment.

Although the BRB did not expressly address the ALJ’s opinion, this
requirement that the employer submit evidence “proving the absence
of, or severing, the connection,” like the “ruling out” standard
discussed infra, see section II.A., would be incorrect.

4
on medical evidence. Finding that Conoco had not rebutted the

statutory presumption, the ALJ concluded that Prewitt suffered a

compensable injury within the meaning of the Act, and that she was

temporarily totally disabled in that she was unable to return to

her former employment and suffered loss of wage earning capacity.

In addition, the ALJ concluded that Prewitt had not reached

“Maximum Medical Improvement” based on the testimony of Prewitt’s

treating physician, Dr. Fritchie, who suggested that further

diagnostic testing would be useful to determine whether additional

treatment could improve Prewitt’s condition. In evaluating the

credibility of the testimony by various medical professionals, the

ALJ specifically accorded greater probative weight to the testimony

of Dr. Fritchie than to that of other doctors who saw Prewitt, as

Dr. Fritchie was Prewitt’s treating physician for over two years

and thus was more familiar with her and her condition.

The ALJ held that Prewitt should receive temporary total

disability benefits based on her average weekly wage of $880.93,

beginning June 20, 1994. Conoco received credit for any

compensation already paid since that date but did not receive

credit, or offset, for the severance payment to Prewitt as a result

of a downsizing. The severance payment was based on Prewitt’s

service as an employee of Conoco and did not constitute wages in

lieu of compensation benefits. The ALJ also ordered Conoco to pay

5
reasonable, necessary, and appropriate medical expenses arising

from Prewitt’s June 1994 work injury. The ALJ did not assess any

penalties under section 14(e) for untimely payment by Conoco and

awarded interest according to the rate applied by United States

district courts. In a supplemental order dated October 15, 1997,

the ALJ awarded attorney’s fees.

2

Conoco appealed both the original and supplemental orders of

the ALJ to the BRB. The Board issued an order on September 3,

1998. Under a standard of review requiring the Board to affirm the

ALJ’s findings of fact that are rational and supported by

substantial evidence and legal conclusions that are supported by

law, see O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380

U.S. 359 (1965), the Board affirmed the award of benefits. The

amount of attorney’s fees is discretionary and may be set aside by

the Board only if it is arbitrary, capricious, an abuse of

discretion, or not in accordance with law. See Muscella v. Sun

Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980). The Board

modified the amount of the attorney’s fees awarded after adjusting

the billing increments.

Conoco argued that the ALJ erred in finding that Prewitt had

established a prima facie case under section 920(a) and in finding

that Conoco failed to rebut the presumption. Conoco also disputed

6
the conclusion that Prewitt remained totally disabled after

September 1994. Conoco contended that the bilateral tendinitis for

which Dr. Fritchie was treating Prewitt was a new and different,

nonwork-related injury.

The Board held that the ALJ’s invocation of the section 920(a)

presumption, on finding that Prewitt proved (1) an injury and (2)

a workplace accident or working conditions could have caused her

injury, was rational and supported by substantial evidence. The

Board also found rational the ALJ’s evaluation that the

inconsistencies in Prewitt’s testimony were inconsequential. The

Board affirmed that Conoco had a burden to present specific and

comprehensive evidence to rebut the presumption that the harm was

work-related, and that Conoco failed to meet that burden.

According to the Board, Conoco, in its reliance on inconsistencies

in Prewitt’s testimony and discrepancies between her testimony and

medical records, failed to rule out the possibility of a causal

relationship between Prewitt’s employment and her injury.

Specifically, the BRB stated:

Employer, however, has identified no specific and
comprehensive evidence ruling out a causal relationship
between claimant’s employment and her neck and shoulder
injuries, and, thus, has failed to meet its burden of
proof on rebuttal.

The Board also found no error in the ALJ’s decision to accord

greater weight to Dr. Fritchie’s testimony than to the testimony of

7
other doctors regarding Prewitt’s continuing total disability and

failure to attain maximum medical improvement. According to the

Board, Dr. Fritchie’s testimony constituted substantial evidence,

and the ALJ was within his discretion to credit it heavily.

Finally, the Board adjusted the award of attorney’s fees.

Prewitt’s counsel initially sought a fee of $15,037.50 for 91.75

hours of service by lead counsel at $150.00 per hour and 15 hours

of service by associate counsel at $100.00 per hour, and costs of

$339.55. The ALJ awarded $12,792.63 in fees, after reducing the

number of hours by lead counsel to 83.5 and disallowing $71.92 in

costs. In reducing the fee award, the Board found merit in

Conoco’s argument that the ALJ improperly awarded fees based on

minimum quarter-hour billing records. The regulations governing

the Review Board indicate that billing should be submitted in

quarter-hour increments. See 20 C.F.R. § 802.203(d)(3). This

court, in two unpublished opinions, however, refused to interpret

the regulation to authorize “rounding-up” to quarter-hour

increments for work that was actually performed in a shorter period

of time.2 Heeding that guidance, the Board reduced certain entries

2
See Ingalls Shipbuilding, Inc. v. Director, OWCP [Fairley],
No. 89-4459 (5th Cir. July 25, 1990) (unpublished); Ingalls
Shipbuilding, Inc. v. Director, OWCP [Biggs], No. 94-40066 (5th
Cir. Jan. 12, 1995) (unpublished). According to 5th Cir. Rule
47.5.3, “[u]npublished opinions issued before January 1, 1996, are
precedent.”

8
from one-quarter hour to one-eighth hour billing increments and

adjusted the award of fees to $12,717.63 for 83 hours of work at a

rate of $150.00 per hour, and affirmed an award of costs of

$267.63.

On October 28, 1998, the Board issued a supplemental order on

Prewitt’s counsel’s request for attorney’s fees associated with

defending the Board appeal brought by Conoco. The Board again

accepted Conoco’s objection to quarter-hour billing increments, and

reduced the billing increments from one-quarter hour to one-eighth

hour. The Board entered a total award of $2,005.02, representing

$1,987.50 for 13.25 hours of legal services at an hourly rate of

$150.00, and $17.52 in costs.

II

A

The BRB applied an incorrect burden on the employer. Title

33, U.S.C. § 920(a) (“Presumptions”) states: “In any proceeding

for the enforcement of a claim for compensation under this chapter

it shall be presumed, in the absence of substantial evidence to the

contrary (a) [t]hat the claim comes within the provisions of this

chapter.” “The statute creates a rebuttable presumption which the

employer [has] the duty of rebutting with evidence that the

[workplace] accident neither caused nor aggravated

plaintiff’s . . . condition.” Brown v. Jacksonville Shipyards,

9
Inc., 893 F.3d 294, 297 (11th Cir. 1990). As we have earlier

noted, the BRB held that Conoco had failed to adduce “specific and

comprehensive evidence ruling out a causal relationship between

claimant’s employment and her neck and shoulder injuries, and,

thus, has failed to meets its burden of proof on rebuttal.”

(emphasis added)(citing Brown).

Brown stated, “[n]one of the physicians expressed an opinion

ruling out the possibility that there was a causal connection

between the accident and Brown’s disability. Therefore, there was

not direct concrete evidence sufficient to rebut the statutory

presumption.” Id. at 297 (emphasis added). The BRB in its order

purported to rely on our decision in Noble Drilling v. Drake, 795

F.2d 478 (5th Cir. 1986). Noble Drilling, however, does not

support a “ruling out” standard. In that case, we agreed that the

claimant had successfully made out a prima facie case of workplace

injury, and thus shifted the burden to the employer. Noble

Drilling articulated the employer’s burden as follows:

To rebut this presumption of causation, the employer was
required to present substantial evidence that the injury
was not caused by the employment. When an employer
offers sufficient evidence to rebut the presumption – the
kind of evidence a reasonable mind might accept as
adequate to support a conclusion – only then is the
presumption overcome; once the presumption is rebutted it
no longer affects the outcome of the case.

Id. at 481 (emphasis added). The language does not require a

“ruling out” standard; indeed, the hurdle is far lower. See also

10
Lennon v. Waterfront Transport, 20 F.3d 658, 662 (5th Cir. 1994)

(“If [the employer] presented substantial evidence that Lennon’s

injury was not work related, the ALJ was obligated to weigh all of

the evidence of record to determine whether the injury arose out of

[claimant’s] employment.” (citing Del Vecchio v. Bowers, 296 U.S.

280, 286-87 (1935)); cf. Eller & Co. v. Golden, 620 F.2d 71, 73

(5th Cir. 1980). 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 Board in this case.

This said, however, the BRB did not commit reversible error in

affirming the ALJ’s judgment. We review the BRB’s finding that

substantial evidence exists to support the ALJ’s judgment. Despite

the legal error, an objective review of the record and the ALJ’s

opinion lead us to the conclusion that the legal error is

harmless–-but just barely.

The record indicates that the ALJ entertained two permissible

views of the evidence and did not err in accepting the one more

favorable to Prewitt. As stated, our standard of review is a

deferential one. See Ingalls Shipbuilding, 991 F.2d at 165.

Although this is not an easy case in the light of the conflicting

medical testimony and Prewitt’s less-than-convincing credibility,

11
we find no error in the ALJ’s primary reliance on the testimony of

Prewitt’s treating physician. Id. (“In our review we typically

defer to the ALJ’s credibility choices between conflicting

witnesses and evidence.”)

Prewitt made a prima facie case by proving (1) a harm and (2)

a condition of work or workplace injury that could have caused the

harm, even if her testimony was inconsistent at times. The ALJ, as

affirmed by the BRB, was within his discretion to discount Conoco’s

attacks on Prewitt’s credibility based on her inconsistent

statements regarding the exact location of the impact of the

turnbuckle on her body, particulars about the accident scene, and

description of symptoms to various medical professionals. Such

inconsistencies will not undermine automatically the relatively

light burden of establishing a prima facie case.

The ALJ also did not plainly err in affording greater weight

to the testimony of Dr. Fritchie (who opined that Prewitt could

benefit from ongoing treatment and could not return to the same

employment) than to testimony of other examiners. Such conclusions

are within the discretion of the ALJ. See Avondale Shipyards, Inc.

v. Kennel, 914 F.2d 88, 91 (5th Cir. 1988). Moreover, the ALJ

correctly concluded that Conoco’s alternative theory, that

Prewitt’s disability was caused by the previous car accident and

not by the workplace injury, did not prevent her claim for

12
benefits. Prewitt admitted the prior injury, but none of the

doctors–-albeit that much of the testimony supporting Prewitt’s

claim was equivocal and reluctant--disputed that Prewitt

experienced pain and functional impairment not just from the car

accident but also from the subsequent workplace injury. Even if

the workplace accident aggravated a pre-existing condition, the ALJ

would still be correct in holding that Prewitt sustained an

“injury” within the meaning of the Act. See Strachan Shipping Co.

v. Nash, 782 F.2d 513, 517 (5th Cir. 1986). On appeal, Conoco does

not expressly challenge the Board’s affirmation that Prewitt

remained totally disabled after September 19, 1994; therefore, we

need not review that decision.

On these facts, we will not say that the Board’s finding of

substantial evidence to support Prewitt’s workplace injury must be

reversed. Although reluctant to affirm an award of benefits

grounded in such a significant legal error, we see little purpose

in forcing reconsideration of the matter, only to see the same

outcome in the end. Ms. Prewitt’s credibility has been damaged,

but sufficient medical testimony exists–-especially by her treating

physician–-to indicate a new or aggravated workplace injury

meriting compensation.

Moreover, contrary to Conoco’s contention, it does not appear

that either the ALJ or the BRB shifted the burden of persuasion, as

13
contrasted to the burden of production, to Conoco in violation of

Director, OWCP v. Greenwich Colleriers, 512 U.S. 267, 280-81 (1994)

(rejecting “true doubt rule” under which burden of persuasion, not

merely burden of production, shifted to party opposing benefits

claim); Pennzoil Co. v. FERC, 789 F.2d 1128 (5th Cir. 1986)

(affirming that under Thayer or “bursting bubble” theory of

presumptions, only effect of a presumption is to shift burden of

producing evidence to challenge the presumed fact).

Conoco’s final argument, that the ALJ’s assessment of

Prewitt’s credibility was irrational and contrary to the evidence,

is easily disposed of. Conoco argues that “[t]he ALJ’s finding

that claimant was ‘generally unequivocal and credible throughout

the hearing’ is so shocking and so contrary to the evidence that it

should be viewed as irrational.” The evidence, however, suggests

that Prewitt may very well have suffered a workplace injury, or at

least aggravated a pre-existing injury caused by the earlier motor

vehicle accident. As we have noted, workplace aggravation of a

pre-existing condition is sufficient under the Act for an award of

benefits.

B

Conoco argues that the award of attorney’s fees was erroneous

in that it was based on minimum quarter-hour billing rather than on

time actually devoted to work. Conoco urges that the court “should

14
either reiterate authoritatively the prohibition of the minimum

quarter hour billing period, or, clearly state that this billing

method is not in fact prohibited.” Conoco also disputes the award

of attorney’s fees by the Review Board for posttrial conferences

between Prewitt and her counsel.

In two unpublished opinions, see supra note 2, we have cast

doubt on our willingness to accept quarter-hour billing records in

calculating an attorney’s fee. We need not address that issue.

The BRB did not simply rely on the quarter-hour billing records but

carefully scrutinized the records to conclude that they represented

work actually performed, relying on this circuit’s unpublished

decisions, and reduced Prewitt’s attorney’s fees accordingly.

Prewitt does not dispute the reduction in fees by the Board

but seeks affirmation of $2,005.02 in fees awarded by the Board for

defending that stage of the appeals process. She also seeks

additional fees for twenty hours, at a rate of $150 per hour, for

defending the instant appeal. Conoco disputes the request for

additional attorney’s fees in defending the instant appeal, first,

as premature and, second, as not supported by any records.

This fee award was proper. The record shows that the ALJ

scrutinized the billing records and made certain adjustments; the

Board also adjusted the attorney’s fee award for representation in

that appeal from the amount requested by Prewitt’s counsel.

15
Accordingly, there was no abuse of discretion or legal error in the

award of fees even under this court’s precedent. The BRB’s order

regarding attorney’s fees is affirmed in full, including the

additional $2,005.02 awarded to Prewitt’s counsel for defending

against Conoco’s appeal of attorney’s fees to the BRB. As the

prevailing party, upon submission and review of billing records,

Prewitt is also eligible for recovery of the reasonable fees

incurred because of the instant appeal.

In sum, we AFFIRM the Board on the award of benefits and

attorney’s fees to Prewitt. Prewitt may apply to this court for

attorney’s fees associated with this appeal.

III

For the reasons stated herein, the order of the Benefits

Review Board is

A F F I R M E D.

16