332 F.3d 283 (5th Cir. 2003), 02-60447, Ortco Contractors, Inc. v. Charpentier

Docket Nº:02-60447
Citation:332 F.3d 283
Party Name:Ortco Contractors, Inc. v. Charpentier
Case Date:May 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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332 F.3d 283 (5th Cir. 2003)

ORTCO CONTRACTORS, INC.; Louisiana Workers' Compensation Corporation, Petitioners,


Lynette CHARPENTIER, Widow of Zeby Charpentier, Jr.; Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents.

No. 02-60447

United States Court of Appeals, Fifth Circuit

May 21, 2003

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[Copyrighted Material Omitted]

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Travis Ron LeBleu, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Petitioners.

William R. Mustian, III, Stanga & Mustian, Metairie, LA, for Charpentier.

Burke Matthew Wong, Carol A. De Deo, U.S. Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Michael O. Brewer, U.S. Dept. of Labor, Employment Standards Admin., New Orleans, LA, for Director, Office of Worker's Comp. Programs, U.S. Dept. of Labor.

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

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prima facie entitlement to benefits under the LHWCA. We therefore grant the petition for review, vacate the BRB's decisions, and remand with instructions.


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 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 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 "§ 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

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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 § 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.


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 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

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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 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, 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...

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