Pigrenet v. Boland Marine & Mfg. Co.

• Decision Date: 21 September 1981
• Docket Number: No. 79-1782,79-1782
• Citation: 656 F.2d 1091
• 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 1091

656 F.2d 1091

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.

Sept. 21, 1981.

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, Sol. of Labor, Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C., for Director, O.W.C.P.

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

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges.

PER CURIAM:

In this Longshoremen's and Harbor Worker's Compensation Act (LHWCA) case, a divided panel of this court held that an administrative law judge may not use transcribed testimony to pass on the credibility of a material witness. 631 F.2d 1190 (5th Cir. 1980). Because the logic of this holding could be said to apply to the making of credibility choices in a wide range of forums, we took this case en banc.

I

In May, 1972, Boland Marine & Manufacturing Company ("Boland") hired Robert L. Pigrenet, petitioner herein. On Friday June 30, 1972, in the course of his employment for Boland in New Orleans, Louisiana, Pigrenet stumbled and fell on a catwalk aboard a ship. This fall apparently caused Pigrenet some immediate discomfort, although he worked throughout the day. Pigrenet reported to Boland for work the following Monday, but along with several other employees, he was laid off. He was never reemployed by Boland.

Pigrenet subsequently worked for Interstate Ranger Service where, on July 13, 1972, he twisted his back carrying a desk up a flight of stairs. On July 17, Pigrenet, complaining of back problems, was admitted to the Montelepre Hospital in New Orleans. Pigrenet told both the admitting physician and his treating orthopedic specialist that he had injured his back lifting a desk; he made no mention of the June 30 accident at Boland. Pigrenet was discharged from the hospital on July 23, but continued to be treated as an outpatient there for several months. In September, 1972, Pigrenet came under the care of Drs. Henry LaRocca and James Gosman of Touro Clinic, who treated him thereafter.

On February 24, 1973, Pigrenet was involved in an automobile accident. He retained the services of a law firm, Pitard, Pitard & Potobil, to make claims against Zurich Insurance Company, the insurer of the responsible driver. That firm has served as Pigrenet's counsel throughout the present LHWCA proceedings. Pitard, Pitard & Potobil, in prosecuting Pigrenet's claim against Zurich, contended that the automobile accident was the sole cause of Pigrenet's back problems; the accident had not aggravated any preexisting back injury. Part of counsel's proof in support of the claim was a letter from Dr. Mark C. Reith, who treated Pigrenet following the automobile accident. Dr. Reith's letter indicated that, as a result of the accident, Pigrenet suffered severe back pain and lost mobility in his lower back and hips. Dr. Reith noted that Pigrenet had not responded to conservative treatment and that Pigrenet's orthopedic specialist felt surgery was indicated. Zurich promptly settled the claim.

On May 11, 1973, Drs. LaRocca and Gosman performed the surgery, a lumbar laminectomy and spinal fusion. The surgery proved to be unsuccessful, however. Some time later, the Pitard law firm filed the present LHWCA claim against Boland, seeking to recover the medical expenses incurred in treating Pigrenet's back condition and compensation. Counsel alleged that all of Pigrenet's back problems were caused by his June 30, 1972 accident on the catwalk and sought a permanent, total disability rating.

Boland sharply contested the claim, contending that Pigrenet's back condition was not employment-related, but had been caused, instead, either by the July 13, 1972 desk-lifting incident at Interstate Ranger Service or the February 24, 1973 automobile accident. Boland also denied that Pigrenet was permanently and totally disabled.

The Benefits Review Board assigned the case to Administrative Law Judge William Sullivan for hearing. At the hearing, Pigrenet, his wife, a physician and a rehabilitative employment specialist testified. Pigrenet and Boland submitted into evidence various medical records and, by deposition, the testimony of several physicians and of the Zurich claims agent who had handled Pigrenet's personal injury claim. Based on this evidence, Judge Sullivan concluded that Pigrenet was permanently and totally disabled. The judge did not, however, resolve the threshold issue of whether Pigrenet's present back condition was causally related to the June 23, 1972 episode on the ship's catwalk. Although the record does not indicate why Judge Sullivan failed to resolve the causality issue, he apparently believed, albeit incorrectly, that the parties had stipulated to the job-relatedness of Pigrenet's injury.

Boland appealed Judge Sullivan's decision to the Benefits Review Board, arguing that he had failed to consider whether Pigrenet's disability was causally related to his June 30, 1972 fall and that the finding of permanent, total disability was not supported by substantial evidence. The Board concluded that the disability determination was supported by substantial evidence, but "that the administrative law judge erred by not considering the issue of causal relationship." The Board therefore remanded the case for resolution of that issue. The case was assigned to Administrative Law Judge George A. Fath, Judge Sullivan having died while Boland's appeal was under consideration.

On remand, Judge Fath moved directly to the causation issue. Both Pigrenet and Boland were given the opportunity to augment the record by presenting new evidence or recalling the witnesses. Neither party chose to present anything further, however, and Judge Fath proceeded to decide the matter on the basis of the already constituted record. Judge Fath found that Pigrenet had failed to prove the necessary causal relationship between his accident at Boland and his disability and therefore denied the claim. Pigrenet moved Judge Fath to reconsider the ruling; the motion was denied and Pigrenet appealed to the Benefits Review Board. He made several arguments to the Board: that the parties had stipulated as to the job-relatedness of his disability, removing that issue from the case; that Judge Sullivan had determined, even if sub silentio, that the disability was job-related; and finally, that Judge Fath's determination that the disability was not job-related was not supported by substantial evidence.

The Benefits Review Board disagreed with each of Pigrenet's arguments and affirmed. Pigrenet then took the appeal presently before us. In addition to the arguments he raised before the Board, Pigrenet now contends, for the first time, that it was inappropriate for Judge Fath to resolve the causation issue on the basis of the cold record prepared by Judge Sullivan. This is because the resolution of that issue turned on the credibility of witnesses, principally Pigrenet, whom Judge Fath did not observe. Thus, if we are unable to terminate this case by accepting one of the arguments he made before the Benefits Review Board, Pigrenet would have us remand the case for a new evidentiary hearing in which Pigrenet's credibility can be determined on the basis of live testimony. A divided panel of this court agreed with Pigrenet and held that an administrative law judge may not make a credibility choice on a cold record when that choice is determinative of the outcome of the case. Because of the obviously far-reaching implications of this holding, we reconsider this case en banc.

II

We turn first to the arguments Pigrenet raised before the Benefits Review Board. Pigrenet's first two arguments that the parties had stipulated to the job-relatedness of his disability and that Judge Sullivan had, in any event, determined that Pigrenet's disability was job-related can be dismissed perfunctorily, as they have no record support.

We must next consider whether Judge Fath's determination that Pigrenet's disability is not job-related is supported by substantial evidence. In approaching this question, we bear in mind that " '(s)ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In applying this standard to the record before us, we conclude that Judge Fath's determination was supported by substantial evidence.

Pigrenet testified that his accidental fall while a Boland employee caused his disability. The record and especially the medical evidence however, does not corroborate his view. A claimant like Pigrenet may, of course, prove the job-relatedness of an injury in a LHWCA case without proffering expert medical testimony. See Jarka Corp. of Philadelphia v. Norton, 56 F.2d 287, 288 (E.D.Pa.1930). Here, proof of job-relatedness must rest on the credibility of Pigrenet's testimony alone.

Judge Fath found Pigrenet's testimony that his June 30, 1972 accident caused his disability to be without probative weight. The statements Pigrenet made to his treating physicians at Montelepre Hospital and to Dr. Reith following his automobile accident flatly contradicted Pigrenet's version of his medical history. Pigrenet responded to...