Shell Offshore, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 24 September 1997
• Docket Number: 96-60692,Nos. 96-60634,s. 96-60634
• Citation: 122 F.3d 312
• Parties: SHELL OFFSHORE, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; Fernon Gilliam, Respondents. SHELL PIPE LINE CORP., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; Lee H. Cafiero, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 312

122 F.3d 312

SHELL OFFSHORE, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR; Fernon Gilliam, Respondents.

SHELL PIPE LINE CORP., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR; Lee H. Cafiero, Respondents.

Nos. 96-60634, 96-60692.

United States Court of Appeals Fifth Circuit.

Sept. 24, 1997.

Jeffrey I. Mandel, Metairie, LA, for Petitioners.

Allen Howard Feldman, Nathaniel I. Spiller, U.S. Department of Labor, Washington, DC, Thomas O. Shepherd, Jr., Clerk, Benefits Review Board, Washington, DC, Carol DeDeo, Assoc. Solicitor, U.S. Department of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director in both cases.

Scott Glabman, U.S. Department of Labor, Washington, DC, for Director, in No. 96-60634.

Pressley Charles Calahan, New Iberia, LA, for Fernon Gilliam, Respondent.

Martin Samuel Triche, Napoleonville, LA, for Lee H. Cafiero, Respondent.

Elizabeth Hopkins, U.S. Department of Labor, Washington, DC, for Director in No. 96-60692.

Petitions for Review of the Decision of the Benefits Review Board.

Before KING, DUHE and WIENER, Circuit Judges.

DUHE, Circuit Judge:

BACKGROUND

These consolidated appeals present two issues: 1) whether the Omnibus Consolidated Rescissions and Appropriations Act of 1996 violates due process by automatically affirming claims older than one year as of September 12, 1996 and 2) what compensation, if any, two offshore workers are entitled to under the Longshore and Harbor Workers' Compensation Act. We find the Appropriations Act constitutional. We also affirm the compensation awarded to Gilliam and vacate and remand the issue of compensation due to Cafiero.

I. No. 96-60634

Fernon Gilliam ("Gilliam"), a lease operator for Shell Offshore, Inc. ("Shell") injured his back on a platform in the Gulf of Mexico. Gilliam reported his injury to his foreman, but he continued to work for the remainder of his seven-day shift. Gilliam returned to shore for a seven day leave. During this time, he sought no medical assistance although he still experienced back pain. When Gilliam returned to work, he completed another seven-day shift despite having trouble performing his normal duties. During his next week off, Gilliam still felt pain in his lower back, which intensified after he assembled a swing set for his granddaughter. Gilliam, however, returned to work for another seven-day shift, but again, he had trouble performing his normal duties. When Gilliam finished this shift, he went to the hospital.

In the course of his treatment, Gilliam consulted nine doctors. All agreed that Gilliam had suffered a back injury, but they disagreed as to whether the primary cause of the injury was the work-related accident or his assembly of the swing set. Eventually, Gilliam filed for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), and he received a hearing before an Administrative Law Judge ("ALJ"). Based on the medical evidence, the ALJ concluded that the injury was compensable and awarded Gilliam benefits. Shell appealed to the Benefits Review Board ("BRB").

II. No. 96-60694

Lee Cafiero, a meter technician for Shell Pipe Line Corp. ("Shell"), injured his back by slipping on steps of a heliport. The parties stipulated that Cafiero's injury was work related, and Shell voluntarily paid benefits to Cafiero under two separate employee benefit plans, the Shell Disability Benefit Plan ("SDB Plan") and the Shell Disability Pension Plan ("SDP Plan").

Apparently unsatisfied with his benefits package, Cafiero claimed LHWCA benefits and received a hearing before an ALJ, who ordered Shell to pay Cafiero compensation benefits. Shell filed an appeal with the BRB.

III. The Appropriations Act

On September 12, 1996, the BRB affirmed the ALJ's decisions in the two cases pursuant to the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, § 101(e), 110 Stat. 1321 (1996) (the "Appropriations Act"). The Appropriations Act required, in part, that all claims pending before the BRB for over one year, as of September 12, 1996, be automatically affirmed.

Shell appealed both cases contending that: 1) the Appropriations Act violated Shell's Fifth Amendment due process rights; 2) Gilliam's injury was the result of an independent, supervening cause which ended Shell's liability; 3) Cafiero waived his right to extra compensation by not filing a brief on the issue with this Court; 4) if Cafiero did not waive, then Shell deserved credit for the monies it had already paid to him; and 5) Cafiero's post injury wage earning capacity should have been based on the average of his reasonable salary range.

DISCUSSION

I. DUE PROCESS

In these consolidated appeals, Shell asserts that the provisions of the Appropriations Act automatically affirming the ALJs' decisions violate its Fifth Amendment right to due process. Thus, Shell asks this Court to declare the Appropriations Act unconstitutional. We disagree.

The essential element of due process is the right to notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). Not only does the LHWCA as amended by the Appropriations Act afford Shell a full pre-deprivation, trial-type hearing before the ALJ, it also grants Shell a post-deprivation hearing in the Circuit Courts of Appeals. Accordingly, we conclude that Shell was not deprived of property without due process of law, and we affirm the constitutionality of the Appropriations Act. See Bunol v. George Engine Co., 996 F.2d 67, 69 (5th Cir.1993) (noting that where a party has had "an opportunity to be heard 'at a meaningful time and in a meaningful manner' before there was any government interference with its property rights[, its] rights to due process have been adequately protected").

II. GILLIAM'S COMPENSATION UNDER LHWCA

A. Standard of Review

This Court must affirm the ALJ' decision if it is in accordance with the law, is rational, and is supported by substantial evidence. See Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir.1991). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted).

B. Gilliam's Award

The LHWCA makes compensation payable when an employee suffers accidental injury or death arising out of and in the course of employment. See 33 U.S.C. § 903 (1984). If an employee shows that he was injured in a work-related accident, then he benefits from a presumption that the LHWCA covers his injury. See 33 U.S.C. § 920(a) (1927). The burden of proof then shifts to the employer to present substantial evidence rebutting the presumption that the claimant's injury was work-related. If the employer successfully rebuts the presumption, the ALJ must examine the evidence as a whole to determine whether the injury is work-related. Here, Gilliam produced evidence that he suffered a work-related injury. Shell argues that it produced substantial evidence to rebut the presumption because it showed that assembling the swing set, and not the work accident, proximately caused Gilliam's injury.

Generally, the idea of proximate cause, as applied in tort law, does not apply to the LHWCA. See Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1050 (5th Cir.1983). With only a few exceptions, the court's function is at an end once causation in fact has been established. Id. One exception does arise when the claimed injury has a supervening, independent cause. Here, Shell argues that assembling the swing set was just such a cause.

This Circuit has articulated somewhat different standards as to what constitutes supervening cause. See Bludworth, 700 F.2d at 1046 (noting the tension between two standards); see also Atlantic Marine, Inc. v. Bruce, 661 F.2d 898, 901 n. 5 (5th Cir.1981). While Shell urges this Court to hold that one standard has evolved into the second, controlling standard, the rule in this Circuit is that only an en banc court can overrule or change what a previous panel has held. See Wood v. U.S., 863 F.2d 417, 421 (5th Cir.1989); U.S. v. Nixon, 827 F.2d 1019, 1023 (5th Cir.1987). There have been no en banc holdings on this issue. We need not decide which standard is the operative one and we affirm Gilliam's award because the facts in this record do not meet either standard for supervening cause.

The initial standard was stated in Voris v. Texas Employers Ins. Ass'n, 190 F.2d 929 (5th Cir.1951) which held that a supervening cause was an influence originating entirely outside of employment that overpowered and nullified the initial injury. Voris at 934. Here, assembling the swing set did not overpower and nullify the work-related injury. The ALJ found that the work-related accident caused the injury and that assembling the swing set only exacerbated the symptom. This finding is supported by substantial evidence.

Subsequently, in Mississippi Coast Marine v. Bosarge, 637 F.2d 994, 1000 (5th Cir.1981) another panel held that a simple "worsening" could give rise to supervening cause. There, the court held that "[a] subsequent injury is compensable if it is the direct and natural result of a compensable primary injury, as long as the subsequent progression of the condition is not shown to have been worsened by an independent cause." Id. at 1000. Here, Shell claims that under the worsening standard, it should not be held liable for Gilliam's injury. Gilliam did not need to seek medical aid until after he assembled the swing set. Moreover, assembling a swing set is not an every day activity but involves lifting, bending, and twisting; therefore, assembling the swing set worsened the injury and is a supervening cause.

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