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Case Law - save on Lexis / WestLaw. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-60508 LOUISIANA INSURANCE GUARANTY ASSOCIATION Petitioner VERSUS ROBERT BUNOL; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondents Petition for Review of an Order of The Benefits Review Board May 12, 2000 Before HIGGINBOTHAM and SMITH, FALLON, District Judge: Circuit Judges, and FALLON, District Judge.* The Louisiana Insurance Guaranty Association ("LIGA") appeals from a decision by the Benefits Review Board * District Judge of the Eastern ("BRB") of the United States Department of District of Louisiana, sitting by designation. Labor concerning benefits awarded to 1 Robert Bunol pursuant to the Longshore because his employer went out of business.1 and Harbor Workers' Compensation Act LIGA moved to reconsider the ruling of the ("LHWCA"). Because we find that ALJ, but its motion was denied. On appeal, substantial evidence supports the the BRB remanded the case to another ALJ determination of the BRB, we affirm. who granted LIGA's request for I. modification. The second ALJ ordered Robert J. Bunol, Sr. was a diesel LIGA to pay compensation for temporary mechanic who was injured in February and total disability benefits from August 1, 1979 again in August of 1979 while working for through September 4, 1979, and from April the George Engine Company in Harvey, 28, 1980 through July 9, 1980 based on an Louisiana. He suffered injuries to his back average weekly wage of $452.13. and spine and underwent surgery on April The ALJ further ordered LIGA to pay 28, 1980. Following his operation, Bunol permanent partial disability benefits for the worked in the repair shop, became an period from September 1, 1988 through instructor, and ultimately resumed his full August 1, 1990 based on an average weekly duties six months to a year later. wage of $452.12 and a residual earning In March, 1988, Bunol was laid off from capacity of $188.25. For August 2, 1990 to his job when the George Engine Company August 31, 1993, Bunol was awarded a went bankrupt. He then began working for residual earning capacity of $150.42, and his brother's insurance company in from September 1, 1993 onward a residual September, 1988 until it was sold in earning capacity of $160.80. The second August, 1990. Since 1990, he has not ALJ, however, relieved LIGA of its duty to returned to any work. pay benefits for the period from 1980 to Bunol filed a complaint for benefits 1988. under the LHWCA after losing his job at Bunol appealed and LIGA cross the insurance company. An administrative appealed the second ALJ decision. The BRB law judge ("ALJ") found that Bunol failed affirmed the findings of the ALJ and also to provide his employer with sufficient reinstated the award of the first ALJ for notice of the February, 1979 injury and permanent partial disability compensation for therefore was not entitled to disability the period from 1980 through 1988. LIGA benefits. The ALJ did, however, award now appeals the second BRB decision to this Bunol benefits related to his August, 1979 court. claim. Bunol received temporary total II. disability benefits at a compensation rate of We review an appeal from a decision by $306.91, based on a weekly wage of the BRB de novo. Sketoe v. Exxon Co., $460.37, for the period between the date of USA, 188 F.3d 596, 597 (5th Cir. 1999). In the accident until December 18, 1980. reviewing a decision of the BRB, we only Thereafter, Bunol was entitled to permanent consider whether the BRB correctly found partial disability benefits at a weekly rate of $146.66 based on a residual wage capacity of $240.38. 1 The Louisiana Legislature created Bunol sought compensation from LIGA LIGA to cover claims against bankrupt employers and their insurers. See La. Stat. Ann. § 22:1375, et. seq. 2 that the ALJ's findings of fact are supported erred in determining the causal relationship by substantial evidence and consistent with between Bunol's disability and any work- the law. See Avondale Indus. v. Director, related accident. When Bunol claimed OWCP 977 F.2d 186, 189 (5th Cir.1990). compensation under the LHWCA, the law "[W]e may not substitute [our] judgment afforded him a presumption that his injury for that of the ALJ, nor may we reweigh or arose out of and in the course of his reappraise the evidence, instead we inquire employment. See 33 U.S.C. § 920(a). Once whether there was evidence supporting the the presumption is invoked, the burden shifts ALJ's factual findings." Boland Marine & to the employer to rebut the presumption Manufact. Co. v. Rihner, 41 F.3d 997, 1002 with substantial evidence that his condition (5th Cir. 1995) (quoting Empire United was not caused or aggravated by his Stevedores v. Gatlin, 936 F.2d 819, 822 (5th employment. See Noble Drilling Co. v. Cir. 1991)). Therefore, "we must affirm Drake, 795 F.2d 478, 481 (5th Cir. 1986). If decisions that conclude correctly that the the employer meets this standard, then the ALJ's findings are supported by substantial presumption disappears. Id. evidence and are in accordance with the LIGA fails to overcome its burden. The law." Darby v. Ingalls Shipbuilding, Inc., evidence considered by the ALJ and 99 F.3d 685, 688 (5th Cir. 1996). reviewed by the BRB shows that Bunol went A. to see his doctor either the day of or the day LIGA argues that the evidence in the after his July 31, 1979 injury. He reported record is insufficient to support the the injury to the employer who in turn filed a conclusions of the BRB. First, LIGA report. Although LIGA contends that the suggests that the BRB erred in determining testimony of Bunol's doctor indicates that he the causal relationship between Bunol's thought he was treating the injury of disability and any work-related accident.2 February, 1979, the ALJ as fact finder LIGA next asserts that sufficient evidence determines the credibility of witnesses and supports neither the BRB's findings decides issues of conflicting evidence. See regarding the nature and extent of Bunol's Avondale Indus., 977 F.2d at 189. LIGA disability nor its determination of the presents no evidence to challenge the ALJ average weekly wage afforded to Bunol. determination, and we therefore find the LIGA then argues that Bunol was not conclusion of the BRB to be supported by injured on a situs covered by the LHWCA. substantial evidence. Finally, LIGA disputes the BRB's C. determination concerning Bunol's residual LIGA next contends that the evidence wage earning capacity and demonstration of considered by the ALJ and the BRB is suitable alternative employment. insufficient to sustain a finding that Bunol B. had worked in pain and with a decreased We first consider whether the BRB earning capacity sufficient to justify partial disability benefits for the period from 1980 to 1988. 2 We need not reach the issue of Bunol bears the initial burden of whether the BRB's decision was issued demonstrating that he cannot return to his timely because Bunol adopts the argument usual work in order to establish a prima of LIGA in its brief. 3 facie case for total disability. If he meets Bunol did work failed to fairly represent an this burden, then his employer must entire year of work. Therefore, the ALJ establish the availability of suitable applied the methodology of section 910(c) alternative employment. See P&M Crane that provides a formula to calculate average Co., 930 F.2d 424 (5th Cir. 1991). Even if weekly wages when the other standards able to work, Bunol may be found to be "cannot reasonably and fairly be applied." totally disabled if he is working with Id. § 910(c). The BRB affirmed. extraordinary effort and in excruciating The courts give broad discretion to ALJs pain. See Argonaut Ins. Co. v. Patterson, in determining appropriate wage awards. See 846 F.2d 715 (11th Cir. 1988). These National Steel & Shipbuilding Co. v. factors are also relevant in determining an Bonner, 600 F.2d 1288, 1292 (9th Cir. 1979). award of permanent partial disability and LIGA offers no evidence to rebut the wage-earning capacity after an injury. See conclusion of the ALJ. Rather, LIGA 33 U.S.C. § 908(c)(21)(h). suggests an alternative method for Both ALJs found that Bunol worked in calculating his wage. The ALJ made no substantial pain from 1980 to 1988. In its error of law by applying section 910(c) and decision, the BRB notes that Bunol testified found that the evidence showed Bunol had that he worked in constant pain and that his not worked substantially the whole year and doctor placed restrictions on his physical therefore did not satisfy the section 910(a) activities at work. LIGA offers no evidence criteria. Thus, we do not find that the BRB to rebut the findings of the BRB. erred in affirming the ALJ decision. Therefore, according to our standard of E. review, we find that the BRB properly LIGA additionally asserts that sufficient found that Bunol worked in pain and is evidence does not demonstrate that Bunol's entitled to benefits for the period from 1980 injury occurred on a covered situs. Section to 1988. 3(a) of the LHWCA restricts compensation D. awards to injuries "occurring on the LIGA further insists that the BRB navigable waters of the United States improperly calculated Bunol's average (including any adjoining pier, wharf, dry weekly wage to determine his benefits. The dock, terminal, building way, marine railway, methods for calculating average weekly or other adjoining area customarily used by wages are listed at 33 U.S.C. section 910. an employer in loading, unloading, repairing, LIGA contends that the ALJ should have dismantling, or building a vessel)." 33 applied section 910(a) rather than section U.S.C. § 903(a). 910(c) to determine his average weekly LIGA claims that evidence exists to wage because Bunol worked "substantially support a finding by the ALJ that Bunol's the whole of the year." See 33 U.S.C. § accident occurred in a field in Baton Rouge 910(a) (providing the computation formula or on a dock in Harvey. The ALJ, however, for injured employees who worked "during found that the evidence showed that the substantially the whole of the year injury occurred on the dock. The BRB immediately preceding injury"). Id. further concluded that Bunol's employer The ALJ determined that section 910(c) conducted maritime activity at this facility. applied because the forty-two weeks that Again, the ALJ weighed conflicting evidence 4 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.3 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. AFFIRMED. 3 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 factual issue. 5 |
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