Gulf Best Elec., Inc. v. Methe

• Decision Date: 01 November 2004
• Docket Number: No. 03-60749.,03-60749.
• Citation: 396 F.3d 601
• Parties: GULF BEST ELECTRIC, INC.; Louisiana Workers' Compensation Corp., Petitioners-Cross-Respondents, v. Michael M. METHE, Respondent-Cross-Petitioner, v. Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondent-Cross-Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 601

396 F.3d 601

GULF BEST ELECTRIC, INC.; Louisiana Workers' Compensation Corp., Petitioners-Cross-Respondents, v. Michael M. METHE, Respondent-Cross-Petitioner, v. Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondent-Cross-Respondent.

No. 03-60749.

United States Court of Appeals, Fifth Circuit.

November 1, 2004.

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

Michael Stagg Guillory, Metairie, LA, for Methe.

Peter Brule Silvain, Jr., U.S. Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, for Respondent.

Petition for Review from an Administrative Decision of the Benefits Review Board.

Before JOLLY, WIENER and PICKERING, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a claim for benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"). Both the claimant, Michael Methe, and the cross-respondents, Gulf Best Electric, Inc. and the Louisiana Workers' Compensation Corporation ("LWCC"), filed petitions asking this court to review various portions of a decision by the Benefits Review Board ("BRB") of the Department of Labor. That decision affirmed in part and modified in part an order by an administrative law judge ("ALJ") granting Methe permanent total disability compensation. Because this court lacks jurisdiction to review the issues raised by Methe, his petition is DISMISSED. With regard to the issues raised by Gulf Best and the LWCC, we AFFIRM the BRB's decision to apply § 910(a) in calculating Methe's average weekly wage, its finding that Methe suffered permanent disability, and its denial of contribution under § 908(f). We REVERSE the decision of the BRB as to the date of maximum medical improvement, and REMAND the case to the BRB to recalculate Methe's compensation award accordingly.

I

Michael Methe injured his back in March 2000, while working as a journeyman electrician for Gulf Best Electric, Inc. He sued Gulf Best and the LWCC for disability benefits, and the case was tried before an ALJ in March 2002. The ALJ's findings relevant to this appeal are: (1) that Methe suffers permanent and total disability; (2) that his average weekly wage was $848.51, and was properly calculated using § 910(c) of the LHWCA; (3) that employer contributions to Methe's retirement, annuity, and health insurance plans should be excluded from calculations of his average weekly wage; (4) that Methe reached maximum medical improvement on June 8, 2000; and (5) that Gulf Best failed to show that Methe's current disability was not due solely to his 2000 injury, and therefore is not entitled to contribution under § 908(f) of the LHWCA.

Methe, Gulf Best, and the LWCC appealed the ALJ's decision to the BRB. The BRB concluded that the ALJ erred in applying § 910(c) of the LHWCA in computing Methe's average weekly wage. Applying § 910(a) instead, the BRB modified the ALJ's order to reflect an average weekly wage of $942.65. The BRB affirmed the ALJ's conclusions as to permanent disability, exclusion of employer contributions to health insurance and retirement plans from the average weekly wage, the date of maximum medical improvement, and denial of relief under § 908(f).

The parties now petition this court to review certain portions of the BRB's decision. Gulf Best and the LWCC ask us to reverse the BRB's ruling that Methe's average weekly wage is properly calculated under § 910(a) of the LHWCA, rather than § 910(c). They further challenge the BRB's decision as it relates to the permanent nature of Methe's disability, the date of maximum medical improvement, and denial of relief under § 908(f). Methe asks us to reverse the BRB's affirmance of the ALJ's decision to exclude employer contributions to health insurance and retirement funds in calculating his average weekly wage. The Director of the Office of Workers' Compensation Programs ("Director") urges this court to dismiss Methe's claim for lack of jurisdiction, arguing that it was not timely filed.

II

The LHWCA requires the BRB to accept the findings of the ALJ if they are rational and supported by substantial evidence in the record considered as a whole. Ceres Marine Terminal v. Director, OWCP, 118 F.3d 387, 389 (5th Cir.1997). The BRB may not substitute its judgment for that of the ALJ or engage in a de novo review of the evidence. Id. This court, in turn, reviews decisions by the BRB to determine whether it has adhered to its proper scope of review — i.e., whether the ALJ's findings of fact are supported by substantial evidence and are consistent with the law. H.B. Zachry Co. v. Quinones, 206 F.3d 474, 477 (5th Cir.2000).

A

We first consider the threshold question of jurisdiction. This court's jurisdiction to hear a petition for review from an LHWCA administrative decision is derived solely from the appeal provision contained in 33 U.S.C. § 921(c). This provision requires, inter alia, that a petition for review of a final order of the BRB be filed no later than sixty days following the issuance of the order. The parties do not dispute that the jurisdictional requirements of § 921(c) are met with respect to all of the issues raised in the petition of Gulf Best and the LWCC.

The Director asserts that Methe's petition, having been filed seventy days after the BRB issued its final order, was not timely. As such, the Director contends, this court lacks jurisdiction to consider Methe's claim that the BRB erred in excluding employer contributions to his retirement and health insurance funds when calculating his average weekly wage. We agree.

Methe has styled his petition a "Cross-Application to Enforce Benefits Review Board Order". In substance, however, it is simply a request that this court reverse the BRB's order, and thus allow inclusion of his employer's $3.47 per hour contributions to retirement and health insurance funds in calculation of his average weekly wage. Because the claimant raises this issue as an affirmative challenge to the BRB's decision rather than as a defense to his employer's appeal, his "cross-application" is properly characterized as a petition for review and, thus, is time-barred by § 921(c). See Dole v. Briggs Construction Co., Inc., 942 F.2d 318, 320 (6th Cir.1991).

Methe contends that, because he has filed a petition for modification of the compensation award with the Department of Labor pursuant to 33 U.S.C. § 922, it would be a "waste of this Court's time and resources" to dismiss his petition, only to have the claim eventually "work its way back through the system". Methe cites no authority for the proposition that we may ignore the time requirements for appeal imposed by an agency's organic statute for the sake of equity or judicial efficiency. Accordingly, Methe's petition is dismissed.

B

We now turn our attention to the four substantive issues raised by Gulf Best and the LWCC. In their petition, they contend that the BRB erred: (1) in affirming the ALJ's decision that Methe suffered permanent disability; (2) in affirming the ALJ's finding that Methe reached maximum medical improvement on June 8, 2000; (3) in reversing the ALJ's decision to apply § 910(c) of the LHWCA in calculating Methe's average weekly wage and instead applying § 910(a); and (4) in affirming the ALJ's decision to deny Gulf Best contribution under § 908(f).

(1)

Gulf Best and the LWCC contend that the ALJ and BRB erred in deciding that Methe has suffered permanent disability. A claimant is considered permanently disabled under the LHWCA if he or she suffers any residual disability after achieving maximum medical improvement. La. Ins. Guaranty Assn. v. Abbott, 40 F.3d 122, 125 (5th Cir.1994). Gulf Best and the LWCC argue that, because Methe has unreasonably refused surgery to alleviate the symptoms of his back injury, he has not achieved maximum medical improvement, and thus cannot be considered permanently disabled. We do not agree.

The LHWCA allows an ALJ to suspend payment of compensation if a claimant "unreasonably refuses to submit to medical or surgical treatment ... unless the circumstances justified the refusal". 33 U.S.C. § 907(d)(4). Gulf Best and the LWCC contend that Methe's refusal to undergo back surgery recommended by his physician, Dr. Bourgeois, is both unreasonable and unjustifiable. They point to Dr. Bourgeois's testimony that surgery of the type in question yields significant improvement in eighty-five to ninety percent of patients and represents Methe's only chance of improving his condition.

The ALJ acknowledged the relevance of this testimony, but assigned more weight to Dr. Bourgeois's statement that there is "no guarantee, even with surgery, that [Methe's] functional level would improve". The ALJ further relied on a statement by the physician hired by Gulf Best to examine Methe that, while he believed it could be justified, surgery probably would not benefit Methe.

In sum, although Dr. Bourgeois's recommendation might have persuaded some patients to undergo surgery, the ALJ's finding that Methe's refusal was reasonable and justified is supported by substantial evidence. We therefore hold that the BRB did not err in affirming the ALJ's conclusion that Methe did achieve maximum medical improvement, and thus suffered permanent disability.

(2)

Gulf Best and the LWCC further assert that, even if Methe has reached maximum medical improvement, the ALJ and BRB erred in concluding that it was achieved on June 8, 2000. They argue that the correct date of maximum medical improvement ("MMI date") is, instead, September 13, 2001. We agree that the ALJ erred, as a matter of law, in designating June 8, 2000 as the MMI date.

Maximum medical improvement is reached when an injury has received the maximum benefit of treatment such that the patient's condition will not improve. Abbott, 40 F.3d at 126. As discussed supra, refusal of further treatment does not prevent...