Pool Co. v. Cooper

• Decision Date: 20 November 2001
• Docket Number: 00-60093,Nos. 99-60615,s. 99-60615
• Citation: 274 F.3d 173
• Parties: (5th Cir. 2001) POOL COMPANY and Carrier; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD., Petitioners, v. OTIS L. COOPER; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR, Respondents
• Court: U.S. Court of Appeals — Fifth Circuit

Page 173

274 F.3d 173 (5th Cir. 2001)

POOL COMPANY and Carrier; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD., Petitioners, v. OTIS L. COOPER; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR, Respondents.

Nos. 99-60615, 00-60093

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

November 20, 2001

Petitions For Review of an Order of the Benefits Review Board

Before STEWART and PARKER, Circuit Judges, and GOLDBERG,¹ Judge.

GOLDBERG:

Petitioners Pool Company ("Pool") and its insurance carrier Signal Mutual Indemnity Association, Ltd. ("Signal"), appeal the decision of the Benefits Review Board ("BRB") awarding respondent Otis L. Cooper ("Cooper") temporary total disability benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C. §§ 901 et seq. (1994). The petitioners allege that the BRB erred by affirming the determinations of the administrative law judge ("ALJ") that Cooper's claim was timely and that he had not withdrawn it in part, and by awarding attorney's fees. We affirm the decision of the BRB with respect to the timeliness of the claim; affirm on other grounds the award of attorney's fees; but remand so that the ALJ may reconsider Cooper's waiver of a part of his claim and allow Pool and Signal to comment thereon.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cooper began his employment at Pool in 1979 as a roustabout. In 1989, he sustained an injury to his right knee, which required surgery. During his approximately six-week convalescence, Pool paid him temporary total disability benefits under the LHWCA.² Cooper's physician, Dr. William A. Morrison, a board-certified orthopedic surgeon, diagnosed a fifteen percent permanent partial disability. Cooper accordingly continued to receive permanent partial disability benefits for his scheduled injury after he resumed work as a roustabout in 1990.

On August 20, 1992, Cooper re-injured his right knee while working for Pool. He informed his supervisors of the mishap and received authorization to seek medical attention. On August 28, 1992, Dr. Morrison ordered a magnetic resonance imaging ("MRI") of Cooper's knee. Dr. Morrison also referred Cooper to Dr. Gene Barrett, another board-certified orthopedic surgeon, who informed Cooper that his anterior cruciate ligament ("ACL") required surgery. On November 24, 1992, Cooper ceased working, and Pool voluntarily began to pay Cooper temporary total disability benefits. At an unspecified date, Pool also began to pay Cooper permanent partial disability benefits, apparently before any diagnosis of maximum medical improvement.

Dr. Barrett performed surgery on Cooper's ACL on February 24, 1993. The surgery was at best a mixed success; Cooper continued to complain of pain in his right knee, and several tests confirmed poor quadriceps development in his right leg. On January 14, 1994, Dr. Barrett resigned himself to the opinion that Cooper's condition would not improve, but would remain at fifteen percent impairment. Dr. Barrett revised his opinion on February 28, 1994, when he concluded that Cooper had attained maximum medical improvement and would never work as a roustabout again, assigned him a twenty percent impairment rating, and discharged him. As of that same day, Pool ceased payment of temporary total disability benefits. On April 22, 1994, Pool made the final payment of benefits for Cooper's scheduled permanent partial disability, and also made a supplemental payment for eighteen days of total temporary disability benefits. Around this time, on his own initiative Cooper began looking for employment, and eventually started work as a high school security guard on September 3, 1994. However, Cooper returned to Dr. Barrett on several occasions throughout 1994, complaining of knee pain.

On October 20, 1994, after Dr. Barrett suggested that Cooper obtain a second opinion, Dr. Morrison again examined Cooper's right knee, and recommended another MRI. On December 8, 1994, Dr. Barrett diagnosed Cooper with a grade three or grade four chrondromalacia, a condition whereby coating on the bone cracks and, at grade four, raw bone rubs on raw bone. Shortly thereafter, on December 20, 1994, Dr. Barrett noted Cooper's performance on a knee strength test as "pitiful."

On February 25, 1995, Cooper filed a form LS-203, Notice of Disputed Claim, with the Office of Workers' Compensation Programs ("OWCP") of the United States Department of Labor, seeking further disability benefits. Pool received written notice of Cooper's claim from the OWCP on March 15, 1995, and responded on March 22, 1995, by filing a form LS-207, Notice of Controversion, disputing Cooper's entitlement to additional benefits. On March 28, 1995, the OWCP informed Cooper of the petitioners' assertions. Cooper never responded to the OWCP, and the claim did not move forward until 1997.

Throughout 1995 and 1996, Cooper worked off and on as a security guard, while continuing to be treated by Dr. Barrett for his chronic knee pain. On January 31, 1997, Dr. Barrett performed an arthroscopic procedure on Cooper's right knee that confirmed the diagnosis of chrondromalacia and the necessity of reconstructive ACL surgery. In particular, Dr. Barrett found that if Cooper underwent additional ACL surgery, his impairment rating would decrease to around fifteen percent and potentially he could resume his job at Pool, but that if he did not undergo the surgery, his condition would decline to thirty percent impairment. Following the arthroscopic procedure, Dr. Barrett placed Cooper on temporary total disability. Cooper, who had been working as a security guard prior to the procedure, did not return to that job until April 10, 1997.

Signal authorized ACL surgery and Dr. Barrett's ongoing treatment of Cooper. However, Cooper pursued his claim against the petitioners for additional monetary compensation. The ALJ conducted a formal evidentiary hearing on December 5, 1997. In his decision and order awarding benefits, the ALJ held that Cooper's claim was not time-barred; that Cooper's condition had not stabilized; that consequently Cooper was entitled to ACL surgery and to temporary total disability benefits until such time as he did attain maximum medical improvement; and that Cooper had been temporarily totally disabled from February 24, 1994 through September 2 1994, and from January 31, 1997 through April 9, 1997, and was entitled to benefits for those periods. In two supplemental decisions, the ALJ found the petitioners liable for Cooper's attorney's fees pursuant to § 28(a) of the LHWCA, 33 U.S.C. § 928(a). On appeal, the BRB affirmed the ALJ's decision, but it upheld the award of attorney's fees under § 28(b) of the LHWCA rather than under § 28(a).

In conformity with 33 U.S.C. § 921(c), Pool and Signal now appeal the decision of the BRB. The Director of the OWCP ("Director") has also filed a brief arguing that the BRB erred in affirming the ALJ's award of benefits for the period of March 3, 1994 through September 2, 1994, and erred by awarding attorneys fees under § 28(b) rather than § 28(a) of the LHWCA, but urging affirmance in all other respects.

II. DISCUSSION

A. Standard of Review

This Court conducts a de novo review of the BRB's rulings of law, see H.B. Zachry Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000), owing them no deference because the BRB is not a policymaking agency. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980); Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456, 458 (5th Cir. 2001). However, we do afford deference to the Director's interpretations of the LHWCA. Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 n.23 (5th Cir. 1982) (en banc); H.B. Zachry, 206 F.3d at 478. As the Supreme Court has recently made clear, the precise amount of deference that we owe to any given interpretation by the Director "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 2172 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).³

With respect to disputed issues of fact, our role is more narrowly circumscribed. Like the BRB, "we may not substitute our judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may only determine whether evidence exists to support the ALJ's findings." New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir. 1997); see also 33 U.S.C. § 921(b)(3). Thus, we examine "whether the BRB properly concluded that the ALJ's factual findings were supported by substantial evidence on the record as a whole." James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 429 (5th Cir. 2000). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997) (noting that substantial evidence is "more than a scintilla but less than a preponderance").

Finally, we will reverse the ALJ's award of attorney's fees "only if it is arbitrary, capricious, an abuse of discretion, or not in accordance with law." H.B. Zachary, 206 F.3d at 481.

B. Cooper's Claim Is Not Time-Barred

Pool and Signal argue that Cooper's claim for additional benefits was time-barred under § 13(a) of the LHWCA, which states:

Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore [sic] is filed within one year after the injury or death. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one...