The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-60752
Summary Calender
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PETER BROWN,
Petitioner-
Cross-Respondent,
VERSUS
BURNSIDE TERMINAL,
A Division of Ormet Corporation,
Respondent-
Cross-Petitioner,
CRAWFORD & COMPANY, DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
_________________________
Petition for Review of an Order
of the Benefits Review Board
(95-1710A)
_________________________
July 10, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Peter Brown and his employer, Burnside Terminal (“Burnside”),
*
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should not be published and is not precedent except under the limited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.
petition for review of an affirmance by the Benefits Review Board
(“BRB”) of a workers' compensaton award by an administrative law
judge (“ALJ”) under the Longshore and Harbor Workers Compensation
Act (“LHWCA”), 33 U.S.C. § 901 et seq. Finding no reversible
error, we deny the petition for review.
I.
Brown, a longshoreman, was injured on July 3, 1990, while
loading barges for Burnside. Attempting to jump onto a barge, he
slipped and ruptured his Achilles tendon and was immediately sent
to the company physician, who referred him to an orthopedic
specialist, Dr. W. Joseph Livingston, who performed surgery on
Brown's ankle and treated him for several months.
In June 1991, Livingston concluded that Brown had reached
“maximum medical improvement,” or “MMI.” He set the date of MMI at
March 7, 1991, finding that, as of that date, Brown had made as
full a recovery as he ever would; thereafter, he would suffer from
a permanent partial disability of five percent to his right leg.
Brown then sought treatment from Dr. Harry Hoerner, who
treated Brown on four occasions: July 2, 1991, July 29, 1991,
September 23, 1991, and November 25, 1991. Although Hoerner
testified that there was no significant improvement in Brown's
condition during the period he had treated him, he set the date of
MMI as his last treatment date, November 25, 1991. Horner also
2
concluded that Brown would suffer from a permanent partial
disability of the foot of between ten and fifteen percent.
II.
A.
The ALJ considered the testimony of both doctors and credited
Livingston's determination of the MMI date as March 7, 1991. The
ALJ also decided that Burnside had successfully rebutted Brown's
prima facie case that Brown was totally disabled. Although Brown
could not return to his former position, there did exist other jobs
within his geographical area that he could obtain given the
permanent partial impairment.
The ALJ thus moved to the schedule of benefits provided under
33 U.S.C. § 908(c) for permanent partial disabilities.
Ascertaining the amount of the permanent partial disability proved
problematic, however. Although the ALJ evidently found Livingston
more credible than Hoerner, he found Livingston's evaluation that
Brown had suffered a five percent leg injury troublesome in light
of the relevant law, as the injury had affected only Brown's calf
and ankle.
Under existing BRB caselaw, an amputation below the knee is
counted as a foot, rather than a leg, injury for purposes of
3
§ 908(c). The ALJ believed this caselaw controlling and therefore
found Livingston's testimony on the percentage of disability
inapposite. With only Hoerner's testimony remaining, the ALJ
averaged Hoerner's estimate of a “ten to fifteen percent”
impairment of the foot to achieve a 12½% impairment, then he
calculated the amount of LHWCA schedule benefits.
B.
Both parties appealed to the BRB, which failed to act within
the statutory time period. See Omnibus Appropriations Act for
Fiscal Year 1996, Pub. L. No. 104-134, 110 Stat. 1321. As a
result, the ALJ’s decision was summarily affirmed. See id.
III.
Both sides now petition for review. Brown contends that
Congress's provision for summary affirmance of long-outstanding BRB
petitions violates his vested due process rights to have BRB review
of his claims. Second, he argues that the ALJ erred in finding
that Burnside had successfully rebutted his prima facie case of
total disability. Finally, he avers that the ALJ erred in
rejecting Hoerner's MMI finding of November 25, 1991.
Burnside cross-petitions, contending that the ALJ incorrectly
adopted Hoerner's finding of a 12½% foot disability. Burnside
also contests the ALJ's award of attorney's fees to Brown.
4
A.
Brown's constitutional argument concerning Congress's
provision for summary affirmance of his BRB petition has recently
been addressed and rejected by this court. See Hall v.
Consolidated Employment Sys., Inc., No. 96-60754, 1998 U.S. App.
LEXIS 8176 (5th Cir. Apr. 24, 1998). We therefore reject Brown's
constitutional challenge.
B.
In reviewing a BRB order, we evaluate the ALJ’s factual
findings under a substantial evidence standard. See, e.g., Ceres
Marine Terminal v. Director, Office of Worker’s Compensation
Programs, 118 F.3d 387, 389 (5th Cir. 1997). Substantial evidence
is that relevant evidenceSSmore than a scintilla but less than a
preponderanceSSthat would cause a reasonable person to accept the
finding of fact. See, e.g., Polanco v. City of Austin, 78 F.3d
968, 974 (5th Cir. 1996). Because the fact-finder is entitled to
deference, a reviewing body cannot substitute its own view of the
facts for the ALJ's. See Ceres, 118 F.3d at 389. Thus, our “only
function is to correct errors of law and to determine if the BRB
. . . deferred to the ALJ’s fact-finding . . . .” Avondale
Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119 n.1 (5th Cir. 1980);
accord Ceres, 118 F.3d at 389. Because the BRB failed to act in
this case, we look directly to the ALJ proceedings.
5
1.
A claimant, who bears the ultimate proof of showing disability
under the LHWCA, makes a prima facie case of a total disability by
showing that he cannot return to his usual employment because of an
employment-related injury. See New Orleans (Gulfwide) Stevedores
v. Turner, 661 F.2d 1031, 1038 (5th Cir. Unit A Nov. 1981). The
employer then can rebut the prima facie case by showing the
existence of suitable other employment opportunities in the
relevant geographical area for which the claimant can compete. See
id. We assume that Brown has properly made a prima facie case of
total disability.
Although Burnside put forth several other possible positions
for which Brown could compete for employment, Brown contests the
ALJ's adoption of Burnside's evidence, because he believes that the
ALJ failed to give articulable reasons for the basis of his
decision as required under the Administrative Procedures Act
(“APA”). Although the ALJ issued a ten-page, single-spaced order
in which he gave reasons for the rejection of Brown's claim of
total disability, Brown suggests that all of those reasons are
invalid, and thus none remains to support the decision for purposes
of the APA.
We have previously held that the substantial evidence
standard, under which we review an ALJ's LHWCA findings of fact,
was not changed by the APA. See Young & Co. v. Shea, 404 F.2d
6
1059, 1061 (5th Cir. 1968) (on petition for rehearing). The
relevant question, therefore, is whether the evidence is such that
a reasonable person could accept the ALJ's finding that Brown could
compete for the employment positions put forward by Burnside. See
Polanco, 78 F.3d at 974.
The standard of review is met. Although some of the ALJ's
reasons in this regard may, as Brown notes, be irrelevant as a
matter of law, in the end there is enough relevant evidence that a
reasonable fact-finder could conclude that Brown could compete for
the positions put forward by Burnside and thus is not totally
disabled under the LHWCA.1
2.
The ALJ's determination of MMI is also supported by
substantial evidence. The ALJ was entitled to credit Livingston's
testimony and to discredit Hoerner's. Livingston testified that
Brown ceased medical improvement on March 7, 1991. Given the
problematic nature of Hoerner's testimony on this point,2 the ALJ
was well within reason to find March 7, 1991, as the date of MMI.
1
Brown does not attempt to overcome Burnside's rebuttal by, for instance,
contending that he tried unsuccessfully to obtain or hold one of these positions.
2
Hoerner began seeing Brown in July 1991. He testified that there was no
significant improvement in Brown's condition from then until he last treated him
in November 1991. Hoerner's testimony, therefore, undercuts his conclusion that
the November 1991 date was the true date of MMI. More likely, MMI occurred
before Brown began seeing Hoerner in July 1991SSlending credence to Livingston's
conclusion that March 7, 1991, was the date of MMI.
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3.
We also reject Burnside's cross-petition contesting the ALJ's
finding of a 12½% permanent foot impairment.3 Livingston's
testimony concerning Brown's leg disability was rendered irrelevant
by the applicable BRB caselaw dictating that Brown's was a foot,
rather than a leg, injury. Having only Hoerner's uncontested
testimony concerning the extent of the foot impairment, the ALJ
quite rationally adopted the average of the range of impairment
that Hoerner had provided in his testimony.
4.
Burnside's attorneys' fees challenge is rendered moot by our
decision above. Burnside's argument on this issue depends on its
assumption that Brown would be unsuccessful in obtaining additional
relief from the ALJ and from this court. As we have just
determined that the ALJ did not err in finding that Brown had
suffered a 12½% permanent partial foot disability, we need not
address Burnside's cross-petition on this issue.
The petition and cross-petition for review are DENIED.
3
Burnside does not contest the BRB jurisprudence that dictates that
Brown's injury be counted as a foot rather than a leg injury for purposes of the
LHWCA § 908(c) schedule. Instead, in its brief, it attempts to recharacterize
Livingston's testimony concerning a 5% permanent disability as relating to the
foot rather than to the leg. The ALJ could reasonably decide to take Livingston
at his word and conclude that when the doctor said “leg,” he really meant “leg”
rather than “foot.”
8