Conoco v. Director of Worker's Comp. Programs

• Decision Date: 12 November 1999
• Docket Number: No. 98-60662,98-60662
• Citation: 194 F.3d 684
• Parties: (5th Cir. 1999) CONOCO, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; REGINA DIXON PREWITT, Respondents
• Court: U.S. Court of Appeals — Fifth Circuit

Page 684

194 F.3d 684 (5th Cir. 1999)

CONOCO, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; REGINA DIXON PREWITT, Respondents.

No. 98-60662

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

November 12, 1999

[Copyrighted Material Omitted]

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

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The issues presented in this appeal are (1) whether the U.S. Department of Labor's Benefits Review Board ("BRB" or the "Board") erred in affirming an award of disability benefits by the Administrative Law Judge ("ALJ") and (2) whether the Board erred in its determination of the proper amount of attorney's fees awarded in this matter.

I

A

We need not set forth the facts at length. In brief summary, the respondent, Regina Dixon Prewitt, was an employee of the petitioner, Conoco, Inc. She claims she was injured when struck by a turnbuckle on her left shoulder or on the left side of her neck while working on one of Conoco's offshore oil platforms. As a result of this claimed injury, Prewitt saw four doctors, a psychologist, and a vocational specialist. She also visited the emergency room on two occasions. Although the record indicates the possibility that the injury never occurred or is a cover for injuries stemming from an earlier auto accident or weightlifting activities, and although there appears a probability that Prewitt has magnified her claim, our factual review is nevertheless circumscribed.

We review decisions of the Board to determine only whether it "correctly concluded that the Administrative Law Judge's order was supported by substantial evidence on the record as a whole and is in accordance with law." Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163, 165 (5th Cir. 1993) (quoting Avondale Indus. v. Director, OWCP, 977 F.2d 186, 189 (5th Cir. 1992)).

B

Prewitt sought benefits under the Longshore and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. 901, et seq., claiming temporary total disability. Conoco paid benefits through November 30, 1995, but Prewitt sought payments from December 1, 1995, and thereafter. She also sought additional medical treatment, contending that at the time of the benefits' hearing she had not reached maximum medical improvement. Conoco objected to the claim for benefits by contending that Prewitt was not credible and did not suffer a disabling injury; Conoco argued that Prewitt's pain was attributable to the earlier car accident. Alternatively, Conoco contended that if Prewitt did suffer such an injury, she reached maximum medical improvement in September 1994.

After a hearing, the ALJ awarded benefits to Prewitt. Specifically, the ALJ evaluated the testimony and medical record evidence and rejected Conoco's argument that Prewitt's testimony was not credible and thus should be disregarded. The ALJ did not find the various inconsistencies or discrepancies in Prewitt's testimony significant. Instead, the ALJ found Prewitt's testimony generally unequivocal and credible.

On the issue of causation, the ALJ applied the presumption in 33 U.S.C. 920(a), finding that Prewitt established a prima facie case of an "injury" within the meaning of the Act. To invoke the section 920(a) presumption, a claimant must prove (1) that she suffered a harm and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated or accelerated the condition. See Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991). Once the presumption is invoked, the burden shifts to the employer to rebut it through facts-- not mere speculation--that the harm was not work-related. See, e.g., Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995); Hampton v. Bethlehem Steel Corp., 24 BRBS 141, 144 (1990); Smith v. Sealand Terminal, 14 BRBS 844 (1982).

The ALJ required Conoco to present specific and comprehensive medical evidence to rebut the presumption of a connection between the harm and employment. ¹ The ALJ found that Conoco failed to carry that burden by focusing on Prewitt's credibility rather than on medical evidence. Finding that Conoco had not rebutted the statutory presumption, the ALJ concluded that Prewitt suffered a compensable injury within the meaning of the Act, and that she was temporarily totally disabled in that she was unable to return to her former employment and suffered loss of wage earning capacity.

In addition, the ALJ concluded that Prewitt had not reached "Maximum Medical Improvement" based on the testimony of Prewitt's treating physician, Dr. Fritchie, who suggested that further diagnostic testing would be useful to determine whether additional treatment could improve Prewitt's condition. In evaluating the credibility of the testimony by various medical professionals, the ALJ specifically accorded greater probative weight to the testimony of Dr. Fritchie than to that of other doctors who saw Prewitt, as Dr. Fritchie was Prewitt's treating physician for over two years and thus was more familiar with her and her condition.

The ALJ held that Prewitt should receive temporary total disability benefits based on her average weekly wage of $880.93, beginning June 20, 1994. Conoco received credit for any compensation already paid since that date but did not receive credit, or offset, for the severance payment to Prewitt as a result of a downsizing. The severance payment was based on Prewitt's service as an employee of Conoco and did not constitute wages in lieu of compensation benefits. The ALJ also ordered Conoco to pay reasonable, necessary, and appropriate medical expenses arising from Prewitt's June 1994 work injury. The ALJ did not assess any penalties under section 14(e) for untimely payment by Conoco and awarded interest according to the rate applied by United States district courts. In a supplemental order dated October 15, 1997, the ALJ awarded attorney's fees.

Conoco appealed both the original and supplemental orders of the ALJ to the BRB. The Board issued an order on September 3, 1998. Under a standard of review requiring the Board to affirm the ALJ's findings of fact that are rational and supported by substantial evidence and legal conclusions that are supported by law, see O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965), the Board affirmed the award of benefits. The amount of attorney's fees is discretionary and may be set aside by the Board only if it is arbitrary, capricious, an abuse of discretion, or not in accordance with law. See Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980). The Board modified the amount of the attorney's fees awarded after adjusting the billing increments.

Conoco argued that the ALJ erred in finding that Prewitt had established a prima facie case under section 920(a) and in finding that Conoco failed to rebut the presumption. Conoco also disputed the conclusion that Prewitt remained totally disabled after September 1994. Conoco contended that the bilateral tendinitis for which Dr. Fritchie was treating Prewitt was a new and different, nonwork-related injury.

The Board held that the ALJ's invocation of the section 920(a) presumption, on finding that Prewitt proved (1) an injury and ² a workplace accident or working conditions could have caused her injury, was rational and supported by substantial evidence. The Board also found rational the ALJ's evaluation that the inconsistencies in Prewitt's testimony were inconsequential. The Board affirmed that Conoco had a burden to present specific and comprehensive evidence to rebut the presumption that the harm was work-related, and that Conoco failed to meet that burden. According to the Board, Conoco, in its reliance on inconsistencies in Prewitt's testimony and discrepancies between her testimony and medical records, failed to rule out the possibility of a causal relationship between Prewitt's employment and her injury. Specifically, the BRB stated:

Employer, however, has identified no specific and comprehensive evidence ruling out a causal relationship between claimant's employment and her neck and shoulder injuries, and, thus, has failed to meet its burden of proof on rebuttal.

The Board also found no error in the ALJ's decision to accord greater weight to Dr. Fritchie's testimony than to the testimony of other doctors regarding Prewitt's continuing total disability and failure to attain maximum medical improvement. According to the Board, Dr. Fritchie's testimony constituted substantial evidence, and the ALJ was within his discretion to credit it heavily.

Finally, the Board adjusted the award of attorney's fees. Prewitt's counsel initially sought a fee of $15,037.50 for 91.75 hours of service by lead counsel at $150.00 per hour and 15 hours of service by associate counsel at $100.00 per hour, and costs of $339.55. The ALJ awarded $12,792.63 in fees, after reducing the number of hours by lead counsel to 83.5 and disallowing $71.92 in costs. In reducing the fee award, the Board found merit in Conoco's argument that the ALJ improperly awarded fees based on minimum quarter-hour billing records. The regulations governing the Review Board indicate that billing should be submitted in quarter-hour increments. See 20 C.F.R. 802.203(d)(3). This court, in two unpublished opinions, however, refused to interpret the regulation to authorize "rounding-up" to quarter-hour increments for work that was actually performed in a shorter period of time.(2) Heeding that guidance, the Board reduced certain entries from one-quarter hour to one-eighth hour billing increments and adjusted the award of fees to $12,717.63 for 83 hours of work at a rate of $150.00 per hour, and affirmed an award of costs of $267.63.

On October 28, 1998, the Board issued a supplemental order on Prewitt's counsel's request for attorney's...