IN THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
LOUISIANA INSURANCE GUARANTY
ROBERT BUNOL; DIRECTOR, OFFICE
OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR
Petition for Review of an Order
of The Benefits Review Board
May 12, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges,
and FALLON, District Judge.(1)
FALLON, District Judge:
The Louisiana Insurance Guaranty Association
("LIGA") appeals from a decision by the Benefits Review Board ("BRB") of
the United States Department of Labor concerning benefits awarded to Robert
Bunol pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA").
Because we find that substantial evidence supports the determination of
the BRB, we affirm.
Robert J. Bunol, Sr. was a diesel mechanic
who was injured in February and again in August of 1979 while working for
the George Engine Company in Harvey, Louisiana. He suffered injuries to
his back and spine and underwent surgery on April 28, 1980. Following his
operation, Bunol worked in the repair shop, became an instructor, and ultimately
resumed his full duties six months to a year later.
In March, 1988, Bunol was laid off from his
job when the George Engine Company went bankrupt. He then began working
for his brother's insurance company in September, 1988 until it was sold
in August, 1990. Since 1990, he has not returned to any work.
Bunol filed a complaint for benefits under
the LHWCA after losing his job at the insurance company. An administrative
law judge ("ALJ") found that Bunol failed to provide his employer with
sufficient notice of the February, 1979 injury and therefore was not entitled
to disability benefits. The ALJ did, however, award Bunol benefits related
to his August, 1979 claim. Bunol received temporary total disability benefits
at a compensation rate of $306.91, based on a weekly wage of $460.37, for
the period between the date of the accident until December 18, 1980. Thereafter,
Bunol was entitled to permanent partial disability benefits at a weekly
rate of $146.66 based on a residual wage capacity of $240.38.
Bunol sought compensation from LIGA because
his employer went out of business.(2) LIGA
moved to reconsider the ruling of the ALJ, but its motion was denied. On
appeal, the BRB remanded the case to another ALJ who granted LIGA's request
for modification. The second ALJ ordered LIGA to pay compensation for temporary
total disability benefits from August 1, 1979 through September 4, 1979,
and from April 28, 1980 through July 9, 1980 based on an average weekly
wage of $452.13.
The ALJ further ordered LIGA to pay permanent
partial disability benefits for the period from September 1, 1988 through
August 1, 1990 based on an average weekly wage of $452.12 and a residual
earning capacity of $188.25. For August 2, 1990 to August 31, 1993, Bunol
was awarded a residual earning capacity of $150.42, and from September
1, 1993 onward a residual earning capacity of $160.80. The second ALJ,
however, relieved LIGA of its duty to pay benefits for the period from
1980 to 1988.
Bunol appealed and LIGA cross appealed the
second ALJ decision. The BRB affirmed the findings of the ALJ and also
reinstated the award of the first ALJ for permanent partial disability
compensation for the period from 1980 through 1988. LIGA now appeals the
second BRB decision to this court.
We review an appeal from a decision by the
BRB de novo. Sketoe v. Exxon Co.,
F.3d 596, 597 (5th Cir. 1999). In reviewing a decision of the
BRB, we only consider whether the BRB correctly found that the ALJ's findings
of fact are supported by substantial evidence and consistent with the law.
See Avondale Indus. v. Director, OWCP 977 F.2d 186, 189 (5th Cir.1990).
"[W]e may not substitute [our] judgment for that of the ALJ, nor may we
reweigh or reappraise the evidence, instead we inquire whether there was
evidence supporting the ALJ's factual findings." Boland Marine &
Manufact. Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir. 1995)
(quoting Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991)). Therefore, "we must affirm decisions that conclude correctly
that the ALJ's findings are supported by substantial evidence and are in
accordance with the law." Darby v. Ingalls Shipbuilding, Inc., 99
F.3d 685, 688 (5th Cir. 1996).
LIGA argues that the evidence in the record
is insufficient to support the conclusions of the BRB. First, LIGA suggests
that the BRB erred in determining the causal relationship between Bunol's
disability and any work-related accident.(3)
LIGA next asserts that sufficient evidence supports neither the BRB's findings
regarding the nature and extent of Bunol's disability nor its determination
of the average weekly wage afforded to Bunol. LIGA then argues that Bunol
was not injured on a situs covered by the LHWCA. Finally, LIGA disputes
the BRB's determination concerning Bunol's residual wage earning capacity
and demonstration of suitable alternative employment.B.
We first consider whether the BRB erred in
determining the causal relationship between Bunol's disability and any
work-related accident. When Bunol claimed compensation under the LHWCA,
the law afforded him a presumption that his injury arose out of and in
the course of his employment. See 33 U.S.C. § 920(a). Once
the presumption is invoked, the burden shifts to the employer to rebut
the presumption with substantial evidence that his condition was not caused
or aggravated by his employment. See Noble Drilling Co. v. Drake,
795 F.2d 478, 481 (5th Cir. 1986). If the employer meets this
standard, then the presumption disappears. Id.
LIGA fails to overcome its burden. The evidence
considered by the ALJ and reviewed by the BRB shows that Bunol
see his doctor either the day of or the day after his July 31, 1979 injury.
He reported the injury to the employer who in turn filed a report. Although
LIGA contends that the testimony of Bunol's doctor indicates that he thought
he was treating the injury of February, 1979, the ALJ as fact finder determines
the credibility of witnesses and decides issues of conflicting evidence.
See Avondale Indus., 977 F.2d at 189. LIGA presents no evidence
to challenge the ALJ determination, and we therefore find the conclusion
of the BRB to be supported by substantial evidence.
LIGA next contends that the evidence considered
by the ALJ and the BRB is insufficient to sustain a finding that Bunol
had worked in pain and with a decreased earning capacity sufficient to
justify partial disability benefits for the period from 1980 to 1988.
Bunol bears the initial burden of demonstrating
that he cannot return to his usual work in order to establish a prima
facie case for total disability. If he meets this burden, then his
employer must establish the availability of suitable alternative employment.
See P&M Crane Co., 930 F.2d 424 (5th Cir. 1991).
Even if able to work, Bunol may be found to be totally disabled if he is
working with extraordinary effort and in excruciating pain. See Argonaut
Ins. Co. v. Patterson, 846 F.2d 715 (11th Cir. 1988). These
factors are also relevant in determining an award of permanent partial
disability and wage-earning capacity after an injury. See
Both ALJs found that Bunol worked in substantial
pain from 1980 to 1988. In its decision, the BRB notes that Bunol testified
that he worked in constant pain and that his doctor placed restrictions
on his physical activities at work. LIGA offers no evidence to rebut the
findings of the BRB. Therefore, according to our standard of review, we
find that the BRB properly found that Bunol worked in pain and is entitled
to benefits for the period from 1980 to 1988.
LIGA further insists that the BRB improperly
calculated Bunol's average weekly wage to determine his benefits. The methods
for calculating average weekly wages are listed at 33 U.S.C. section 910.
LIGA contends that the ALJ should have applied section 910(a) rather than
section 910(c) to determine his average weekly wage because Bunol worked
"substantially the whole of the year." See 33 U.S.C. § 910(a)
(providing the computation formula for injured employees who worked "during
substantially the whole of the year immediately preceding injury"). Id.
The ALJ determined that section 910(c) applied
because the forty-two weeks that Bunol did work failed to fairly represent
an entire year of work. Therefore, the ALJ applied the methodology of section
910(c) that provides a formula to calculate average weekly wages when the
other standards "cannot reasonably and fairly be applied." Id. §
910(c). The BRB affirmed.
The courts give broad discretion to ALJs in
determining appropriate wage awards. See National Steel & Shipbuilding
Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir. 1979). LIGA
offers no evidence to rebut the conclusion of the ALJ. Rather, LIGA suggests
an alternative method for calculating his wage. The ALJ made no error of
law by applying section 910(c) and found that the evidence showed Bunol
had not worked substantially the whole year and therefore did not satisfy
the section 910(a) criteria. Thus, we do not find that the BRB erred in
affirming the ALJ decision. E. LIGA additionally asserts that sufficient
evidence does not demonstrate that Bunol's injury occurred on a covered
situs. Section 3(a) of the LHWCA restricts compensation awards to injuries
"occurring on the navigable waters of the United States (including any
adjoining pier, wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel)." 33 U.S.C. § 903(a).
LIGA claims that evidence exists to support
a finding by the ALJ that Bunol's accident occurred in a field in Baton
Rouge or on a dock in Harvey. The ALJ, however, found that the evidence
showed that the injury occurred on the dock. The BRB further concluded
that Bunol's employer conducted maritime activity at this facility. Again,
the ALJ weighed conflicting evidence and rendered a decision that a reasonable
mind might accept as adequate to support a conclusion. See Avondale
Indus., 977 F.2d at 189 (defining "substantial evidence" as evidence
that provides a substantial basis of fact from which can be reasonably
inferred) (internal quotation omitted). Therefore, we find that the evidence
supports the BRB's determination that Bunol's injury occurred on a situs
covered by the LHWCA.
F. Finally, LIGA disputes the BRB's determination
concerning Bunol's residual wage earning capacity and demonstration of
suitable alternative employment.(4) LIGA
again provides no evidence to challenge the findings of the BRB. We may
not second-guess the determinations of the ALJ and the BRB absent a showing
that substantial evidence does not support their conclusions. See Rihner,
41 F.3d at 1002. Accordingly, we find that the record supports the fact-finding
of the ALJs and the determination of the BRB.
Respondent's motion to dismiss the petition
for review is MOOT.
1. District Judge of the
Eastern District of Louisiana, sitting by designation.
2. The Louisiana Legislature
created LIGA to cover claims against bankrupt employers and their insurers.
See La. Stat. Ann. § 22:1375, et. seq.
3. We need not reach the
issue of whether the BRB's decision was issued timely because Bunol adopts
the argument of LIGA in its brief.
4. At oral argument, LIGA's
counsel stated that LIGA challenges, on appeal, only the BRB's factual
determination and raises no issue as to LIGA's duty, under these facts,
to find suitable alternative employment. Accordingly, we decide only the