Baton Rouge Marine Contractors Inc. v. Dir.

• Decision Date: 10 August 2010
• Docket Number: No. 09-60509.,09-60509.
• Parties: LOUISIANA INSURANCE GUARANTY ASSOCIATION; Baton Rouge Marine Contractors, Inc., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. Department of Labor; National Ben Franklin Insurance Company, Pittsburgh, Pennsylvania; Fidelity and Casualty Company of New York; Robert Harvey, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

614 F.3d 179

LOUISIANA INSURANCE GUARANTY ASSOCIATION; Baton Rouge Marine Contractors, Inc., Petitioners,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. Department of Labor; National Ben Franklin Insurance Company, Pittsburgh, Pennsylvania; Fidelity and Casualty Company of New York; Robert Harvey, Respondents.

No. 09-60509.

United States Court of Appeals,Fifth Circuit.

Aug. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Henry Gerard Terhoeve, Stephen Dale Cronin (argued), Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for LA Ins. Guaranty Ass'n.

Patrick Edelen Costello (argued), Mouledoux, Bland, Legrand & Brackett, L.L.C., New Orleans, LA, for Baton Rouge Marine Contractors, Inc.

Matthew W. Boyle (argued), Rae Ellen James, Mark Ambrose Reinhalter, Counsel, U.S. Dept of Labor, Office of Sol., Washington, DC, David Duhon, U.S. Dept. of Labor, New Orleans, LA, for Director, Office of Worker's Comp. Programs, U.S. Dept. of Labor.

Vincent William Farrington, Jr., Farrington & Thomas, L.L.C., New Orleans, LA, for Nat. Ben Franklin Ins. Co., Pittsburgh, PA, and Fidelity & Cas. Co. of NY.

John Foster Dillon (argued), Law Office of John F. Dillon, Folsom, LA, for Harvey.

Petitions for Review of an Order of the Benefits Review Board.

Before DAVIS, SMITH and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This case arises from Claimant Robert Harvey's (“Harvey”) claim before an administrative law judge (“ALJ”) for benefits under the Longshore and Harbor Workers' Compensation Act (“LHWCA”). The issues in this petition are whether the Benefits Review Board (“BRB”) erred in affirming the ALJ's findings that: (1) Harvey's “last injurious exposure” to asbestos occurred in 1977; (2) Harvey involuntarily retired; (3) Harvey suffers from a total disability; (4) the Louisiana Insurance Guarantee Association (“LIGA”) ¹ was responsible for payment of Harvey's claims due to the insolvency of the otherwise responsible insurance carrier; and (5) LIGA is also responsible for payment of medical benefits without a credit for possible, but thus far unproven, payments from Harvey's existing health insurance coverage. Finding no reversible error, we DENY the petition for review.

I. FACTUAL & PROCEDURAL BACKGROUND

A. Harvey's Work History

Harvey worked as a longshoreman at the Port of Greater Baton Rouge from 1965 to 1977. His primary employer during that time was Petitioner Baton Rouge Marine Contractors (“BRMC”). For a large part of the 1960s, Harvey's primary job was to unload bags of asbestos from the holds of ships docked in the port. In 1970, Harvey began working as a crane operator and remained in that position until changing employers and facilities in 1977. As a crane operator, Harvey no longer directly handled bags of asbestos, but he continued to pass through warehouse facilities where asbestos was stored in order to access BRMC's cranes. During this time, the BRMC warehouses were not decontaminated to remove background asbestos fibers deposited in the ordinary course of handling.

In 1977, Harvey began working for the State of Louisiana. His new employment first led him to transfer to the Baton Rouge Barge Terminal and then to the Slack Water Canal. Though he eventually returned to the main port facility, he never again worked with asbestos. Harvey worked for the State from 1977 until his retirement in 2005.

B. Harvey's Medical History

Harvey was first diagnosed with pulmonary asbestosis in 1998 by Dr. Glenn Gomes. In 2002, Harvey sought treatment from Dr. Mark Hodges. As a result of tests, Dr. Hodges concluded that Harvey was moderately impaired and that his lung capacity was 55% of predicted and his diffusion capacity was 71% of predicted. Additional testing in 2004 led Dr. Hodges to opine that Harvey had become severely restricted with a lung capacity of 40% of predicted and diffusion capacity of 41% of predicted. By the time of a 2006 report, Dr. Gomes opined that Harvey's condition had significantly worsened from his original 1998 diagnosis such that his total lung capacity had been reduced to 49% of predicted and his diffusion capacity was 37% of predicted.

Harvey testified that, due to his medical condition, he “wasn't going to be able to climb stairs and roam around those docks and up and down the railroad tracks like [he] needed to” to perform his job. He also testified that these limitations, at least in part, motivated his decision to retire.

C. BRMC's Insurance History

BRMC was covered by four different insurance companies for various periods during Harvey's employment from 1965 to 1977. Relevant here is that Employers' National Insurance Company provided coverage from October 1, 1972 until November 1, 1982. It was declared insolvent and placed into receivership in 1994. Consequently, LIGA appeared in place of Employers' National in the proceedings below.

D. Proceedings Below

The ALJ conducted a formal hearing, including the taking of live testimony from Harvey, on May 10, 2007. In a Decision and Order dated April 30, 2008, the ALJ awarded Longshore Act compensation for the injuries flowing from Harvey's asbestosis. Specifically, the ALJ found that: 1) Harvey's asbestosis was causally related to his work for BRMC; 2) Harvey's injuries constituted permanent and total disability; 3) Harvey's retirement in 2005 was involuntary insofar as it was at least partially caused by his medical condition; 4) the “last injurious exposure” related to Harvey's asbestosis occurred in 1977; 5) BRMC bears full liability under the LHWCA's “last responsible employer” rule; and 6) LIGA, as the substitute party for the insolvent Employers' National Insurance Company, was the responsible carrier. The ALJ also awarded Harvey all reasonable and necessary medical care for services related to his asbestosis, including reimbursement for any past asbestosis-related medical expenses.

The parties cross-appealed the ALJ's April 30 Decision and Order and the BRB affirmed on May 11, 2009. LIGA timely filed the instant petition for review on July 8, 2009.

II. STANDARD OF REVIEW

The BRB's final order is subject to review in the United States Court of Appeals for the circuit in which the injury occurred. 33 U.S.C. § 921(c) (2010). In reviewing a decision of the BRB, our “only function is to correct errors of law and to determine if the BRB has adhered to its proper scope of review i.e., has the [BRB] deferred to the ALJ's fact-finding or has it undertaken de novo review and substituted its views for the ALJ's.” Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119 n. 1 (5th Cir.1980). Stated differently, once the BRB affirms an order of the ALJ, we need only inquire whether the BRB “correctly concluded that the ALJ's order was supported by substantial evidence on the record as a whole and is in accordance with the law.” Ingalls Shipbuilding, Inc. v. Dir., OWCP, 991 F.2d 163, 165 (5th Cir.1993) (internal quotation marks omitted).

With respect to issues of law, we review the BRB's rulings de novo. Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir.2001). As for findings of fact, we have repeatedly acknowledged that the ALJ, as sole factfinder, “is entitled to consider all credibility inferences [and the ALJ's] selection among inferences is conclusive if supported by the evidence and the law.” Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir.1995) (internal quotation marks and citation omitted). See also Bollinger Shipyards, Inc. v. Dir., OWCP, 604 F.3d 864, 870-71 (5th Cir.2010).

III. DISCUSSION

As stated above, the petition before us presents five issues for review. Three of those issues require us to analyze the ALJ's factual findings: (1) that 1977 was the “last injurious exposure”; (2) that Harvey involuntarily retired; and (3) that Harvey was totally disabled. The other two issues are questions of law: (1) did the ALJ and BRB err in assigning full liability to LIGA by extension of the “last responsible employer” rule; and (2) did the ALJ err in awarding medical costs related to Harvey's asbestosis without awarding a credit for unknown and unproven payments from another source? We address each issue in turn.

A. The ALJ's Factual Findings

We must accept factual findings supported by “substantial evidence” on the record as a whole. New Orleans Stevedores v. Ibos, 317 F.3d 480, 483 (5th Cir.2003). “ ‘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.’ ” Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir.2009) (quoting Dir., OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir.1997)). Based on the record evidence, the BRB correctly found that all three of the ALJ's challenged factual findings were properly supported by substantial evidence.

1. Last Injurious Exposure

LIGA contends that Harvey's last injurious exposure occurred before 1971 when Employers' National began providing coverage to BRMC. Specifically, LIGA contends that, because Harvey stopped working directly with asbestos after 1970, he therefore never again suffered an injurious exposure. In making this argument, LIGA attacks the expert testimony of Frank Parker by arguing that Parker's opinion contradicted Harvey's testimony and that Parker's testimony was speculative. Neither argument has merit and, accordingly, we find the BRB correctly affirmed the ALJ's ruling as to “last injurious exposure.”

The ALJ had substantial evidence demonstrating that Harvey worked in warehouses where latent asbestos fibers subjected him to toxic background exposure for the duration of his employment with BRMC. Consequently, we conclude the BRB correctly held that the ALJ had substantial evidence to find that the “last injurious exposure” occurred in 1977.

2. Involuntary Retiree Status

Next, BRMC contends that Harvey failed to advance sufficient evidence for the ALJ to find that...