Island Operating Co. v. Dir., Office of Worker's Comp. Programs

• Decision Date: 16 February 2012
• Docket Number: No. 11-60532,11-60532
• Parties: ISLAND OPERATING COMPANY, INCORPORATED; LOUISIANA WORKERS' COMPENSATION CORPORATION, Petitioners v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR; ARCHIE CRAWFORD, Respondents
• Court: U.S. Court of Appeals — Fifth Circuit

ISLAND OPERATING COMPANY, INCORPORATED; LOUISIANAWORKERS' COMPENSATION CORPORATION, Petitioners

v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS,US DEPARTMENT OF LABOR; ARCHIE CRAWFORD, Respondents

No. 11-60532

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Date: February 16, 2012

Summary Calendar

Petition for Review from an Order of the

Benefits Review Board

BRB No. 10-0688

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:^*

Petitioners Island Operating Company, Incorporated and Louisiana Workers' Compensation Corporation appeal the order of the Benefits Review Board upholding an administrative law judge's award of disability benefits to Respondent Archie Crawford. For the following reasons we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent Archie Crawford ("Crawford") was employed by Petitioner Island Operating Company, Incorporated ("Island") as a lead operator on an offshore oil production platform. On the morning of Wednesday, March 12, 2008, Crawford was taken by helicopter to an offshore platform at West Cameron 586 to begin a week-long shift. While disembarking from the helicopter, Crawford's knee buckled, and he fell down two stairs. Crawford filled out an accident report that day indicating that he bruised and scraped his right knee and sustained bruises on his right side. Crawford testified that he performed his job duties for the remainder of the day, but when he awoke the following morning, he experienced numbness in his left foot and three of the fingers on his left hand. Crawford testified that he asked his supervisor, Joe Pesche ("Pesche"), to send a replacement to relieve him so that he could be examined by a physician. There were no physicians on the platform. Crawford testified that Pesche denied his request because a replacement was not available.

Crawford's condition continued to worsen in the days that followed. Crawford testified that on Friday, March 14, 2008, he experienced numbness in his upper body and that he continued his requests to be relieved from his post and taken to a physician. Crawford further testified that on Saturday, his chest felt numb, and the numbness was more pronounced than it had been on previous days. Crawford indicated that he continued requesting relief. According to Crawford, his condition stabilized on Sunday, but he could not walk. Crawford was replaced by a relief operator on Monday, March 17, 2008, and was taken by helicopter to Lafayette General Medical Center where physicians diagnosed him with a stroke. Crawford has not returned to any kind of work following this diagnosis.

Crawford filed a claim for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950, which Island andLouisiana Workers' Compensation Corporation (collectively "Petitioners") contested. An administrative law judge ("ALJ") concluded that Crawford's stroke was a preexisting condition that was not caused by Crawford's work, but that the stroke was aggravated by his working conditions because of the time Crawford spent on the offshore platform before he was able to seek treatment. Crawford had also suffered a shoulder injury, which the ALJ found was caused by Crawford's fall. Ultimately, the ALJ awarded Crawford compensation for temporary total disability under 33 U.S.C. § 908(b) for the time period from March 17 to April 2, 2008, and continuing compensation for permanent total disability under 33 U.S.C. § 908(a). The ALJ also held Petitioners liable for the medical expenses related to Crawford's stroke and shoulder injury under 33 U.S.C. § 907.

Petitioners appealed the ALJ's decision and order to the Benefits Review Board ("BRB"), contending that the ALJ erred in finding that Crawford's working conditions aggravated his stroke. The BRB affirmed the decision and order of the ALJ, and Petitioners now appeal the order of the BRB.

II. DISCUSSION

A. Standard of Review

The BRB hears appeals "raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under [the LHWCA]." 33 U.S.C. § 921(b)(3). "The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole." Id. "Substantial evidence is evidence that provides 'a substantial basis of fact from which the fact in issue can be reasonably inferred.'" Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006 (5th Cir. 1978) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299 (1939)). "Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. 'Itmeans such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Columbian Enameling & Stamping Co., 306 U.S. at 300 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, the BRB lacks statutory authority to conduct a "de novo review of the evidence or to substitute its views for those of the ALJ." Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir. 1991).

"Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred." 33 U.S.C. § 921(c). "[O]ur review of BRB decisions is limited to considering errors of law and ensuring that the Board adhered to its statutory standard of review, that is, whether the ALJ's findings of fact are supported by substantial evidence and are consistent with the law." Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1011 (5th Cir. 1981) ("Courts of Appeals examine BRB decisions for errors of law and to make certain that the BRB has adhered to its scope of review. We likewise follow a substantial evidence standard."). "[W]e 'may not substitute [our] judgment for that of the ALJ, nor may we reweigh or reappraise the evidence,' instead we inquire whether there was evidence supporting the ALJ's factual findings." Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir. 1995) (quoting Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir. 1991). "Moreover, if supported by the evidence and not inconsistent with the law, the administrative law judge's inference is conclusive." Fulks, 637 F.2d at 1011; see also Avondale Indus., Inc. v. Dir., Office of Workers' Comp. Programs, 977 F.2d 186, 189 (5th Cir. 1992) ("The substantial evidence standard is less demanding than that of preponderance of the evidence, and the ALJ's decision need not constitute the sole inference that can be drawn from the facts.").

B. Compensation under the LHWCA

Under 33 U.S.C. § 903(a), the LHWCA provides for compensation for "disability or death of an employee . . . if the disability or death results from an injury occurring upon the navigable waters of the United States." The LHWCA defines an "injury" as "accidental injury or death arising out of and in the course of employment . . . ." 33 U.S.C. § 902(2). "The words 'arising out of instruct that the employment must have caused the injury." Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1049 (5th Cir. 1983). "Aggravation of a preexisting condition can be an injury under the [LHWCA]." Id. at 1049; see also Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir. 1986); Cooper Stevedoring of La., Inc. v. Washington, 556 F.2d 268, 271 (5th Cir. 1977) (discussing the "well-established principle that aggravation of a preexisting condition is compensable under the [LWHCA]"). The aggravation rule requires an employer "to compensate an employee for the full extent of the employee's disability, including any preexisting disability that the work-related injury worsens." Strachan, 782 F.2d at 515.

Under § 920(a), a claim is presumed to come within the provisions of the LHWCA in the absence of substantial evidence to the contrary. "[I]nherent in this provision is the presumption that an injury is causally related to a worker's employment." Port Cooper, 227 F.3d at 287. Thus, to invoke the presumption under § 920(a), "the claimant must make a prima facie showing of causation." Id. This requires a claimant to prove "(1) that he or she suffered harm, and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition." Id.; see also Gooden v. Dir., Office of Worker's Comp. Programs, U.S. Dep't of Labor, 135 F.3d 1066, 1068 (5th Cir. 1998); Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (stating that evidence showing that there is "realistic possibility" that an injury was work related "sufficed . . . to require substantial evidence in refutation").

Once a claimant makes a prima facie case of causation, the burden shifts to the employer to rebut it with "substantial evidence to the contrary." See 33 U.S.C. § 920(a); Port Cooper, 227 F.3d at 288 ("A presumption can be rebutted by an employer through substantial evidence establishing the absence of a connection between the injury and the employment."). As stated above, "this evidentiary standard is less demanding than the ordinary civil requirement that a party prove a fact by a preponderance of evidence." Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003) (emphasis omitted). "If the employer rebuts the presumption, then the issue of causation must be decided by looking at all the evidence of record." Gooden, 135 F.3d at 1068.

C. Crawford's Claim

Petitioners in this case challenge the ALJ's finding that Crawford was entitled to the presumption under § 920(a) that working conditions had aggravated the disability resulting from Crawford's stroke.¹ Petitioners contend that Crawford failed to prove that working conditions or a work-related injury aggravated his stroke. Petitioners highlight that the ALJ concluded that...