Bollinger Shipyards Inc v. Dir., 09-60095.
| Decision Date | 22 April 2010 |
| Docket Number | No. 09-60095.,09-60095. |
| Citation | 604 F.3d 864 |
| Parties | BOLLINGER SHIPYARDS, INC.; American Longshore Mutual Association, Petitioners,v.DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. Department of Labor; Jorge Rodriguez, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Kevin Andrew Marks (argued), Jessie Schott Haynes, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Petitioners.
Matthew W. Boyle (argued), Sean Bajkowski, Rae Ellen James, Associate Sol., Mark Ambrose Reinhalter, Counsel, U.S. Dept. of Labor, Office of Sol., Thomas O. Shepherd, Jr., Clerk, Benefits Rev. Bd., Washington, DC, David Duhon, U.S. Dept. of Labor, New Orleans, LA, for Director.
Daniel Steven Wanko, Jr., Mark Richard Ladd (argued), Wanko Law Firm, L.L.C., Covington, LA, for Rodriguez.
Jennifer Jean Rosenbaum, New Orleans Workers' Ctr. for Racial Justice, Legal Dept., New Orleans, LA, for Amici Curiae; New Orleans Workers' Ctr. for Racial Justice, Interfaith Worker Justice, Pro Bono Project of New Orleans, Southern Poverty Law Ctr., Immigrant Justice Project, Workers Injury Law & Advocacy Group and National Employment Law Project.
Petition for Review of a Final Order of the Benefits Review Board.
Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
Bollinger Shipyards, Inc. (“Bollinger”), petitions for review of an order of the Benefits Review Board (“BRB”) awarding benefits under the Longshore and Harbor Workers' Compensation Act (“the LHWCA”) to Jorge Rodriguez (“Rodriguez”), an undocumented immigrant who fell and injured himself while employed by Bollinger as a pipefitter. We deny the petition.
In October 2003, Rodriguez fell and injured himself while performing a welding job for Bollinger, his employer. At the time of his injury, Rodriguez had been working as a pipefitter for Bollinger for approximately eight months, having initially obtained employment with Bollinger after stating falsely that he was a U.S. citizen and providing the company with a false Social Security number. Bollinger does not dispute that Rodriguez's injury occurred in the course and scope of his employment or that, were it not for his status as an undocumented immigrant, he would be entitled to benefits under the LHWCA. Rather, Bollinger contends that, by virtue of Rodriguez's undocumented status and his use of a false Social Security number to obtain employment, he should be precluded from recovering any LHWCA-related benefits.
Bollinger initially paid Rodriguez temporary disability benefits and reimbursed him for a portion of his medical expenses. After almost two years, however, Bollinger terminated all payments in November 2005 when it discovered that Rodriguez was an undocumented immigrant. Rodriguez then filed for benefits from Bollinger under the LHWCA, and the case proceeded to an administrative trial.
Proceeding pro se before the ALJ, Rodriguez testified that he had first come to the United States illegally in 1990 and had used a false Social Security number to obtain a series of jobs, working first as a bartender and then as a forklift operator in Texas before moving to Louisiana in 1998. In Louisiana, Rodriguez worked for several different employers in the marine industry before beginning to work as a pipefitter for Bollinger in March 2003.
According to Rodriguez, he was welding an inclined wall of a ship on the night of his accident when he fell and landed on his back. Rodriguez testified that he lay on the ground for approximately 10 to 15 minutes before he was able to stand up and report the incident to a supervisor. According to Rodriguez, his immediate supervisor instructed him to go home that night and report back the following day for medical treatment, explaining that it would cost Bollinger significantly more to have him treated that evening.
Rodriguez further testified that the following day Tim Hargrove, Bollinger's “safety man,” filled out an accident report and directed Rodriguez to seek medical treatment from Dr. Tate. That physician recommended that Rodriguez be reassigned to light-duty work in the tool room. Rodriguez worked light duty for less than a month, however, eventually stopping because his back had worsened progressively to the point that he could no longer work in any capacity. Rodriguez provided the ALJ with reports from several physicians, including Dr. Hamsa, who had diagnosed Rodriguez as being temporarily disabled and unable to perform any work unless he had back surgery, underwent additional open MRI testing, and received various orthopedic supplies, such as a cane and back support.
Bollinger called two witnesses: Ray Barker, Bollinger's corporate representative; and Larry Stokes, Bollinger's vocational rehabilitation expert. Barker testified about Bollinger's company practices to safeguard against hiring undocumented workers. According to Barker, the company required prospective employees to submit a valid driver's license and a Social Security number.1 Barker stated that Bollinger's primary method of verifying an employee's eligibility to work in this country was to send the employee's Social Security number to the IRS at the end of the year and then wait to see if the IRS returned a report indicating that the number was invalid. As Rodriguez had only worked for Bollinger from March to November, however, Bollinger had not submitted his Social Security number to the IRS prior to his injury. Barker was unable to confirm whether Bollinger had attempted to verify Rodriguez's legal status by any other means, as the company's personnel records had been destroyed during Hurricane Katrina.
Stokes testified regarding his vocational report on Rodriguez's earning capacity and job skills. Stokes noted that his efforts in compiling the report were complicated by Rodriguez's refusal to participate in any vocational rehabilitation counseling. He acknowledged, however, that it was not entirely uncommon for plaintiffs in Rodriguez's position to decline such counseling. Stokes began his analysis by observing that, as a threshold matter, Rodriguez was not employable in the U.S. in any legal capacity because of his status as an undocumented immigrant; and that, as a result, it would have been improper and unethical for him to assist Rodriguez in vocational rehabilitation. Nevertheless, for purposes of comparison, Stokes performed a vocational evaluation of Rodriguez's earning capacity without regard to his legal status, concluding that Rodriguez was capable of performing a variety of light-to-medium-duty jobs that would earn him between $250 and $600 in average weekly salary. Stokes reiterated, however, that even if Rodriguez's injury prevented his performing light-duty work, he had suffered no loss of legal earning capacity, as he had had no legal earning capacity prior to being injured.
The ALJ ruled in favor of Rodriguez on all issues, concluding that he was unable to work and that he was “not at maximum medical improvement because of a need for back surgery.” After conducting a thorough review of the evidence and the testimony of each witness, the ALJ explained that he found Rodriguez to be a credible witness and that, although he was impressed by each physician and witness who had testified or submitted reports, he found Dr. Hamsa's assessment of Rodriguez's condition to be the most accurate diagnosis. The ALJ agreed with Dr. Hamsa's recommendation that Rodriguez should receive reasonable and necessary procedures and devices, including back surgery, additional MRI testing, and orthopedic supplies.
With respect to Rodriguez's eligibility for benefits under the LHWCA, the ALJ held that undocumented immigrants such as Rodriguez are indeed eligible for such benefits. Citing our opinion in Hernandez v. M/V Rajaan,2 the ALJ concluded that Rodriguez was entitled to benefits under the LHWCA, largely because Bollinger had failed to present any evidence that Rodriguez was “about to be deported or would surely be deported.” The ALJ also found persuasive the D.C. Circuit's opinion in Rivera v. United Masonry, Inc.,3 in which that court declined to take into consideration an immigrant's undocumented status when determining his eligibility for benefits. The ALJ explained that he had not considered Rodriguez's legal status in any way “as a factor in computing compensation, but rather [had] considered other factors such as pain levels, past work, and working capacity as considered by the [BRB] and the Fifth Circuit.”
In sum, the ALJ ordered that (1) Bollinger pay Rodriguez temporary total disability benefits from the date of the accident to the present, with benefits to continue until Rodriguez reached maximum medical improvement; (2) the payment should be calculated using the base rate of $568.00 per week, with two-thirds benefits per statute, totaling $378.67; (3) Bollinger should compensate Rodriguez for all reasonable past and future medical treatment, including back surgery, open MRI testing, and appropriate orthopedic devices as recommended by Dr. Hamsa; and (4) interest should be assessed on all unpaid benefits. After the ALJ issued his decision, the district director awarded attorney's fees to Rodriguez's prior counsel.
Bollinger appealed the ALJ's ruling to the BRB, contending that the ALJ had fundamentally erred in concluding that Rodriguez, an undocumented immigrant, was entitled to benefits under the LHWCA. In the alternative, Bollinger urged the BRB to conclude that the ALJ's factual findings were in error and were not supported by substantial evidence in the record. According to Bollinger, the ALJ had inter alia, failed to give adequate consideration to Stokes's vocational report identifying suitable alternate employment for Rodriguez.
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