Pigrenet v. Boland Marine & Mfg. Co.

• Decision Date: 03 December 1980
• Docket Number: No. 79-1782,79-1782
• Citation: 631 F.2d 1190
• Parties: Robert L. PIGRENET, Sr., Petitioner, v. BOLAND MARINE & MANUFACTURING COMPANY and The Director of the Office of Workers' Compensation Programs of the Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1190

631 F.2d 1190

Robert L. PIGRENET, Sr., Petitioner, v. BOLAND MARINE & MANUFACTURING COMPANY and The Director of the Office of Workers' Compensation Programs of the Department of Labor, Respondents.

No. 79-1782.

United States Court of Appeals Fifth Circuit.

Dec. 3, 1980.

Pitard, Pitard & Porobil, Michael L. Lash, New Orleans, La., for petitioner.

Stewart E. Niles, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Boland Marine, etc.

Carin A. Clauss, Mary A. Sheehan, Solr. of Labor, U. S. Dept. of Labor, for Director, O.W.C.P.

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

Before TJOFLAT, POLITZ and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

Petitioner seeks review of an administrative determination that he did not sustain a compensable injury under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901. The administrative finding is not supported by substantial record evidence. We reverse and remand.

On June 30, 1972, the petitioner sustained an injury to his back while working for his employer, Boland Marine & Manufacturing Company (Boland Marine). The injury occurred when the petitioner fell on a catwalk while attempting to dislodge a large nut on a boom outside of the catwalk rail. Three days after the accident, the petitioner saw his family physician for treatment. It is this injury for which the petitioner sought disability benefits under the Act. After a formal hearing, an administrative law judge held that the petitioner was permanently and totally disabled as a result of an injury to his back. On Appeal, the Benefits Review Board concluded that the petitioner was permanently and totally disabled, but remanded the case to the office of administrative law judges for a determination as to any causal relationship. Due to the death of the first hearing examiner, a different administrative law judge was assigned to hear the case on remand. This administrative law judge (second judge) only reviewed the written record and briefs submitted by the parties.

The written record establishes that on July 16, 1972, the petitioner was admitted to a hospital for treatment of a back injury. The hospital records indicate that an injury was sustained just four days prior to admission, when petitioner carried a desk to an upstairs office while working for another employer. The second administrative law judge accepted the employer's contention that it was this incident which caused the petitioner's disability rather than the June 30, 1971 accident. The petitioner's injury, therefore, did not arise out of the course of his employment with Boland Marine. This conclusion precludes the petitioner's recovery under the Act. The conclusion is based on numerous inconsistencies which the second administrative law judge found to reflect adversely on the petitioner's credibility.

The petitioner was treated by various doctors on occasions subsequent to June 30, 1972 at hospitals and out-patient treatment centers. The documented medical history obtained from those centers indicates that the petitioner complained of back injury resulting from several occurrences including involvement in an automobile accident on February 24, 1973. On May 7, 1973, petitioner underwent surgery after a physician determined that he had a "degenerative disk." This condition was attributed to aging. Additional x-rays demonstrated that the petitioner had "spina bifida acculta S-1" which is a congenital abnormality.

According to the second administrative law judge:

"The credible evidence in this case supports the conclusion that Claimant did not suffer a compensable injury while working for this Employer on June 30, 1972. Instead, it proves that he suffered an injury while lifting a desk on or about July 13, 1972, which aggravated a pre-existing degenerative disk and, which, in turn, was further aggravated by injuries sustained lifting tires, twisting his back on his boat, and an automobile accident."

On a second appeal to the Benefits Review Board, the second administrative law judge's finding was upheld.

We are guided by well-settled principles in the discharge of our appellate responsibility. In cases arising under the Longshoremen's and Harbor Workers' Compensation Act, our duty is to determine whether the administrative findings of fact are supported by substantial evidence in the record, considered as a whole, or if there is an error of law. Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir. 1980); Equitable Equipment Co., Inc. v. Hardy, 558 F.2d 1192 (5th Cir. 1977); Presley v. Tinsley Maintenance Service, 529 F.2d 433 (5th Cir. 1976).

The issue of credibility is inextricably intertwined with whether substantial evidence supports the ultimate administrative finding that there was no causal connection between the petitioner's disability and the injury sustained while in Boland Marine's employ. The administrative law judge, on remand, arrived at this determination after merely reviewing the written record of the proceedings before the first administrative law judge. The petitioner, however, failed to state an objection to the credibility evaluation upon only the printed word and failed to request a hearing for oral testimony. This does not preclude our consideration of the point on this appeal. Questions not presented to or passed on by the fact finder may be considered on appeal under exceptional circumstances where a miscarriage of justice would otherwise result. See D. H. Overmyer Co. v. Loflin, 440 F.2d 1213 (5th Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971).

Normally, a proper credibility evaluation requires that the fact finder hear and observe the witness. Credibility is not readily discernable by one who merely reads a cold record. Lacking specific Fifth Circuit precedent concerning whether a substituted fact finder may properly rely on a written record alone to make a credibility determination, we seek the wisdom of other circuits. The Second, Fourth, and Eighth Circuits have implied that where credibility of the witness is crucial to resolving a factual dispute, a substituted fact finder must engage in a de novo hearing of the evidence. Appalachian Power Company v. Federal Power Commission, 328 F.2d 237 (4th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 59, 13 L.Ed.2d 38 (1964); Art National Manufacturers Distributing Co. v. Federal Trade Commission, 298 F.2d 476 (2nd Cir.), cert. denied 370 U.S. 939, 82 S.Ct. 1588, 8 L.Ed.2d 808 (1962); Gamble-Skogmo, Inc. v. Federal Trade Commission, 211 F.2d 106 (8th Cir. 1954). Thus, we find in this instance that the failure by the substituted administrative law judge to conduct a de novo hearing of the evidence constitutes manifest injustice.

In reviewing whether there is substantial evidence in the record, as a whole, to support the administrative determination on the causal connection issue, we remain mindful of the generous spirit of congressional concern in the policy of the Act. The Act must be construed "broadly and liberally so as to effectuate fully the legislature's remedial purpose." Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1351 (5th Cir. 1980). "In deciding each appeal, we must remember that the Act is to be liberally construed in favor of injured workers." Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 541 (5th Cir.), cert. denied, 433 U.S. 908, 97 S.Ct. 2967, 53 L.Ed.2d 1088 (1979). "(A)ll doubtful questions of fact are to be resolved in favor of the injured employee." Strachan Shipping Co. v. Shea, 406 F.2d 521, 522 (5th Cir.), cert. denied, 395 U.S. 921, 89 S.Ct. 1773, 23 L.Ed.2d 238 (1969).

We hold that the proximate cause determination in this case is unsupported by substantial evidence. It rests upon an evaluation of credibility and the drawing of inferences from the written record alone. Therefore, we reverse the judgment of the Benefits Review Board upholding the administrative law judge's conclusion, and remand for a formal evidentiary hearing to determine whether the petitioner's disability arose out of the injury sustained while working for Boland Marine.

REVERSED AND REMANDED.

TJOFLAT, Circuit Judge, dissenting.

Since I think it essential to an understanding of the issues before us, I begin this dissent by sketching out what actually occurred at the administrative level:

Mr. Pigrenet initially litigated this case before an administrative law judge, who concluded that Pigrenet was entitled to benefits. The Benefits Review Board, however, remanded the case to the law judge for further factual findings. In the interim, the first administrative law judge had died, and after remand a second judge was appointed. The substituted judge, after reviewing the record-which consisted largely of conflicting testimony-determined that he could resolve the remaining factual issues on the basis of the then-existing record. He informed the parties of this determination, giving them the opportunity to request an evidentiary hearing at which they could try the case anew or offer additional testimony to supplement the previous record. Neither Pigrenet nor the employer, however, requested such a hearing, obviously for strategic reasons. Accordingly, the administrative law judge decided the case on the record prepared by the first law judge and proposed a decision, adverse to Pigrenet, which the Benefits Review Board subsequently adopted.

Although Pigrenet failed to request a new evidentiary hearing, he now raises as error the administrative law judge's failure to hold one. Pigrenet argues that an evidentiary hearing was required because it was impossible for the administrative law judge to resolve credibility issues on a cold record; the logical extension of his argument is that it was also impossible for...