James J. Flanagan Stevedores Inc. v. Gallagher

• Decision Date: 14 July 2000
• Docket Number: No. 99-60322,99-60322
• Parties: (5th Cir. 2000) JAMES J. FLANAGAN STEVEDORES, INCORPORATED; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED, Petitioners, v. JOHN C. GALLAGHER; DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, Respondents
• Court: U.S. Court of Appeals — Fifth Circuit

Page 426

219 F.3d 426 (5th Cir. 2000)

JAMES J. FLANAGAN STEVEDORES, INCORPORATED; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED, Petitioners, v. JOHN C. GALLAGHER; DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, Respondents.

No. 99-60322

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

July 14, 2000

[Copyrighted Material Omitted] Petition for Review of an Order of the Benefits Review Board

Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge.

James J. Flanagan Stevedores, Incorporated (employer), and Signal Mutual Indemnity Association, Limited,¹ petition for review of a final order of the Benefits Review Board (BRB) affirming an order by an administrative law judge (ALJ) awarding additional benefits to John C. Gallagher (Gallagher) pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. (1994). The issues on appeal are Gallagher's entitlement to two periods of temporary partial disability benefits, the proper calculation of Gallagher's weekly wage used in determining the disability award, the award of attorney's fees, and the imposition of a penalty under 33 U.S.C. § 914. Finding no error, we deny the petition for review.

I. FACTUAL AND PROCEDURAL HISTORY

Gallagher is a longshoreman who worked intermittently on the waterfront since 1959, and continuously since 1973. On January 20, 1995, while performing his duties as a longshoreman, he fell when he began to climb a ladder. He sustained injuries to his left foot, back, and neck. After receiving treatment at a hospital emergency room, Gallagher sought further treatment from an orthopedic surgeon, who released him to return to work on February 21, 1995. Meanwhile, the employer had begun voluntarily paying compensation benefits to Gallagher on January 31, 1995. Those payments were suspended when Gallagher was released to work.

Gallagher resumed working as a longshoreman. On June 27, 1995, Gallagher sought treatment from another surgeon, Dr. Swann, who immediately instructed Gallagher to stop working. A few days later, Dr. Swann performed surgery on Gallagher's heel to repair a ruptured Achilles tendon. Gallagher then began a regimen of physical therapy.

Gallagher filed a claim for compensation on August 22, 1995, and the employer again paid compensation benefits to him until he was released to light duty work on August 27, 1996. In November of 1996, Gallagher sought the care of another orthopedic surgeon, who provided him with a brace.

On December 6, 1996, the District Director of the Department of Labor held an informal conference. According to the employer, the following issues were discussed but not resolved at the informal conference: "average weekly wage, temporary total disability, and medical management." It is undisputed that there was a recommendation made by the District Director's office.

On February 14, 1997, while working, Gallagher's ankle "rolled over," causing him to fall. After that accident, Gallagher never again attempted to work as a longshoreman.²

A hearing was held before an ALJ on October 6, 1997, at which time the employer stipulated to all contested issues except Gallagher's entitlement to both temporary partial and temporary total disability benefits during two periods of time,³ the amount of Gallagher's weekly wage, penalties under 33 U.S.C. § 914(e), and interest under 28 U.S.C. § 1961. On February 18, 1998, the ALJ issued a decision and order finding that Gallagher had a 17.5 percent partial disability in his left foot and awarding him compensation for a temporary partial disability for the two disputed periods of time based upon an average weekly wage of $929.29 and a residual earning capacity of $346.75.⁴ Additionally, the ALJ awarded Gallagher a penalty for late payment of benefits due under 33 U.S.C. § 914(e). In September of 1998, the ALJ entered a supplemental decision awarding attorney's fees to Gallagher's counsel. The employer filed an emergency motion to produce or preserve evidence of counsel's billing records, which the ALJ denied. The employer appealed the ALJ's decisions and orders to the BRB, which affirmed the award.⁵ The employer now petitions this Court for review.

II. ANALYSIS

A. Substantial Evidence

Our review of BRB decisions is limited to considering errors of law and whether the BRB properly concluded that the ALJ's factual findings were supported by substantial evidence on the record as a whole. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996); see also 20 C.F.R. § 802.301(a) (setting forth BRB's scope of review of ALJ's decision). "Substantial evidence is that relevant evidence--more than a scintilla but less than a preponderance--that would cause a reasonable person to accept the fact finding." Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997).

The employer argues that the ALJ's finding that Gallagher was entitled to temporary partial disability benefits during the two specified periods of time is not supported by substantial evidence because the ALJ failed to discuss and consider⁶ much of the relevant evidence in violation 5 U.S.C. § 557(c)(3)(A) of the Administrative Procedures Act, which provides, in relevant part, that:

All decisions . . . are a part of the record and shall include a statement of--

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record . . . .

This Court has declined to adopt the rule followed in the Third Circuit⁷ "that an ALJ must articulate specifically the evidence that supported his decision and discuss the evidence that was rejected." Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994).⁸

The employer challenges the ALJ's acceptance of Gallagher's testimony that the work he performed during the two periods of time was all that he was capable of doing. However, the ALJ is a fact finder and is entitled to weigh all credibility inferences. Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 91 (5th Cir. 1990). When reviewing this determination, we must be mindful not to substitute our judgment for that of the ALJ, "nor may we reweigh or reappraise the evidence, instead we inquire whether there was evidence supporting the ALJ's factual findings." Boland Marine & Manufacturing Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir. 1995) (citation and internal quotation marks omitted).⁹

In regard to the first disputed period of temporary partial disability, the ALJ considered the medical evidence and found that Dr. Snook, the physician who released Gallagher to work, "either mis-diagnosed [Gallagher's] condition or the condition greatly worsened with [his] efforts to work between February 20, 1995, and June 27, 1995." There is substantial evidence to support this finding in that on June 27, 1995, when Gallagher sought treatment from another surgeon, Dr. Swann, he was immediately advised to stop working because surgery was needed to repair a severed Achilles tendon.

In regard to the second disputed period of temporary partial disability, although Dr. Swann released Gallagher to work on August 27, 1996, the ALJ credited Gallagher's continued complaints of pain after that date. The ALJ expressly recognized that another physician, Dr. Wilk, found Gallagher "to be restricted in his activities and felt that if he persisted on longshoring he should take no jobs that required him to be on his feet for long periods." Additionally, Dr. Wilk equipped Gallagher with an air brace. Dr. Wilk also found that Gallagher's ankle was not at maximum medical improvement until January of 1997. We are satisfied that there is substantial evidence in the record to support the ALJ's finding that Gallagher was temporarily partially disabled during the two periods of time in question.

B. Wages

The employer next argues that the ALJ erred by including a container royalty benefit (CRB)¹⁰ distribution as part of the calculation of Gallagher's average weekly wage pursuant to 33 U.S.C. § 902(13). Section 902(13) provides as follows:

The term "wages" means the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle C of the Internal Revenue Code of 1954 . . . . The term wages does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement.

As the employer acknowledges, the Fourth Circuit has held that CRB payments are wages under § 902(13) if earned through work but not if earned by disability credit. Universal Maritime Service Corp. v. Wright, 155 F.3d 311 (4th Cir. 1998).¹¹ Our research indicates that this Court has yet to address this issue; however, we recently had the occasion to interpret the meaning of "wages" under § 902(13) in a different context. See H.B. Zachry Company v. Quinones, 206 F.3d 474 (5th Cir. 2000). In Quinones, the question was whether the value of meals and lodging which was exempt from withholding of federal income tax constituted "wages" under § 902(13) of the LHWCA. We rejected the argument that "any advantage" received from the employer is included as wages because that would render the phrase "and included for purposes of any withholding of tax" superfluous. We concluded that § 902(13) was clear on its face inasmuch as "[i]t provides that `wages' equals monetary compensation plus taxable advantages." Therefore, we held that § 902(13) excluded from its definition of "wages" the value of tax-exempt meals and lodging. Id. at 479....