Presley v. Tinsley Maintenance Service, No. 74--3871
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before THORNBERRY, MORGAN and RONEY; RONEY |
| Citation | 529 F.2d 433 |
| Parties | John M. PRESLEY, Petitioner, v. TINSLEY MAINTENANCE SERVICE, and Mid-Continental Underwriters, Inc., Respondents, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Intervenor. Summary Calendar. * |
| Docket Number | No. 74--3871 |
| Decision Date | 26 March 1976 |
Page 433
v.
TINSLEY MAINTENANCE SERVICE, and Mid-Continental
Underwriters, Inc., Respondents,
Director, Office of Workers' Compensation Programs, U.S.
Department of Labor, Intervenor.
Fifth Circuit.
Page 434
Atreus M. Clay, Houston, Tex., for petitioner.
John L. Yates, James E. Ross, Houston, Tex., for Tinsley and Mid-Continental.
Cornelius S. Donoghue, Jr., Acting Assoc. Sol., Dept. of Labor, William J. Kilberg, Sol., Marshall H. Harris, Assoc. Sol. of Labor, George M. Lilly, Linda L. Carroll, Attys., U.S. Dept. of Labor, Washington, D.C., for Dept. of Labor.
Petition for Review of an Order of the Benefits Review Board (Texas Case).
Before THORNBERRY, MORGAN and RONEY, Circuit Judges.
RONEY, Circuit Judge:
In essence, the controversy in this Longshoremen's Compensation Act lawsuit involves the propriety of an award of attorney's fees under 33 U.S.C.A. § 928, where the disability compensation claim presented to and contested by the employer/carrier differed significantly from the compensation award made by the administrative law judge.
An administrative law judge awarded temporary total compensation for an undetermined period of future disability which he said would follow amputation of the first joint of claimant's middle finger. He also awarded attorney's fees for having obtained the award. The Review Board first found no substantial evidence to support a finding that there would be temporary total disability following amputation, and second found no such declination by the employer to pay such compensation, if in fact such disability does occur, such as to justify an
Page 435
award of attorney's fees for obtaining the compensation. The record amply supports the Review Board's decision.To properly reflect the propriety of the Review Board's decision, it might be well to recite the facts and administrative procedure which brings this case to us for decision, and the precise issue confronting the Benefits Review Board and this Court. 1
John M. Presley severely injured his left hand while working for Tinsley Maintenance Service on October 10, 1970, on a man-made island in the Gulf of Mexico. The index finger was amputated. The flexibility and condition of the middle finger were seriously impaired. Covered by the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 2 pursuant to an award, Presley received temporary total disability compensation for a year until October 7, 1971, and a lump sum payment for a 35 percent permanent partial disability of the left hand.
On August 16, 1972, Presley requested modification of this award. Of critical importance to this review is that the only claim asserted by the claimant, and the only claim controverted by the employer/carrier, was a claim for total permanent disability due to a 'change of condition' pursuant to 33 U.S.C.A. § 922. 3 At an informal hearing on February 1, 1973, the employer/carrier stated its willingness to provide further medical treatment, if needed. Not until February 7, 1974, was a formal hearing held. On May 10, 1974, the administrative law judge entered a decision finding for the employer/carrier and against Presley on the claim for total permanent disability on the change of condition theory. He found the claimant was not entitled to further permanent disability compensation.
As he is empowered to do under 33 U.S.C.A. § 922, however, the administrative law judge found a mistake of fact in fixing the former award since that award was based upon a belief that further surgery was not indicated. He agreed with claimant's physician that corrective surgery by amputation of the first joint of the middle finger would relieve pain and improve Presley's ability to work with tools. Thereupon the administrative law judge directed the carrier to pay all medical expenses for the corrective surgery, which was not contested, but further awarded the claimant compensation payments of $70.00 a week during any period of convalescence following surgery, $1,100 in attorney's fees to the claimant's attorney, and $260 to an examining medical witness who testified on the claimant's behalf. The attorney's fee award depends upon the factual accuracy and the legal significance of the compensation...
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...certain that the Board adhered to its statutory standard of review of factual determinations." Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Accord Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794-95 (5th Cir. 1978). See generally 33 U.S.C. § 92......
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Pearce v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 79-2257
...required to have been, but were not, set forth in an opinion of an administrative law judge. See Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5 Cir. 1976). The Board has no authority to engage in a de novo proceeding or unrestricted review of a case brought before it. Its powe......
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Pearce v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 77-2074
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Miller v. Central Dispatch, Inc., No. 80-2135
...Cir. 1980); Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794-95 (5th Cir. 1978); Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. The ALJ's selection of reasonable conflicting factual inferences is conclusive upon the Board if supported by the evidence an......
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Pearce v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 79-2257
...required to have been, but were not, set forth in an opinion of an administrative law judge. See Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5 Cir. 1976). The Board has no authority to engage in a de novo proceeding or unrestricted review of a case brought before it. Its powe......
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Kalaris v. Donovan, Nos. 82-1631
...(1976). See Nat'l Steel & Page 383 Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir.1979); Presley v. Tinsley Maintenance Serv., 529 F.2d 433, 436 (5th Cir.1976). Thus the Board screens cases, administers Department policy, and apparently reduces the number of cases that will be tak......
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Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Eastern Coal Corp., Nos. 76-1895 and 76-1896
...for review of awards under those statutes which have been processed under the new procedures. Presley v. Tinsley Maintenance Service, 529 F.2d 433 (5th Cir. 1976), and Offshore Food Service, Inc. v. Benefits Review Board, 524 F.2d 967 (5th Cir. 1975) (Outer Continental Shelf Lands Act cases......
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Ryan-Walsh Stevedoring Co., Inc. v. Trainer, RYAN-WALSH
...certain that the Board adhered to its statutory standard of review of factual determinations." Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Accord Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794-95 (5th Cir. 1978). See generally 33 U.S.C. § 92......