*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60665

Summary Calendar

_____________________

GRAY INSURANCE COMPANY,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, 

U.S. DEPARTMENT OF LABOR; AETNA CASUALTY & SURETY 

COMPANY; JOSEPH H GROS,

Respondents.

_________________________________________________________________

On Petition for Review of a Final

Order of the Benefits Review Board

(94-2413)

_________________________________________________________________

June 2, 1997

Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

 An administrative law judge found that Gray Insurance

Company is responsible, pursuant to the Longshore & Harbor

Workers’ Compensation Act, for the disability benefits due to

Joseph H. Gros because of his heart condition, and the Benefits
2

Review Board affirmed. Gray Insurance Company appeals this

determination of responsibility. Finding no error, we affirm.

I. BACKGROUND

The basic facts of this case are simple and undisputed. 

Joseph H. Gros was employed by Dixie Machine Welding & Metal

Works (“Dixie”) on September 14, 1989, when he suffered a heart

attack. At that time, Aetna Casualty & Surety Company (“Aetna”)

was Dixie’s insurance carrier, covering benefits under the

Longshore & Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.

§§ 901-950. Gros continued working for Dixie, and he suffered

another heart attack on May 21, 1993, while working. At the time

of Gros’s second heart attack, Gray Insurance Company (“Gray”)

provided Dixie’s coverage for LHWCA liability. After this second

heart attack, Gros has not return to work and has been determined

to be disabled.

Gros brought a claim for benefits under the LHWCA against

Dixie, Aetna, and Gray. The administrative law judge (“ALJ”)

held a formal hearing and determined, in part relevant to this

appeal, that Gray was responsible for Gros’s disability benefits

because the evidence showed that Gros’s work at Dixie accelerated

and aggravated his preexisting heart condition, leading to his

second heart attack and resultant disability. The ALJ’s decision

was automatically affirmed by the Benefits Review Board (“BRB”),

pursuant to the provisions of Public Law 104-134, 110 Stat. 1321
3

(Omnibus Appropriations for Fiscal Year 1996) because it had been

pending before the BRB for more than one year. The ALJ’s final

decision is considered the final order of the BRB for purposes of

review by this court.

Gray appeals, arguing that Aetna should be responsible

because the second heart attack and resultant disability was the

direct and natural result of or a natural progression of the

compensable prior injury (the first heart attack). 

II. ANALYSIS

This court reviews the decision of the BRB for errors of law

and applies the same substantial evidence standard that governs

the BRB’s review of the ALJ’s factual findings. Mendoza v.

Marine Personnel Co., 46 F.3d 498, 500 (5th Cir. 1995). We must

affirm the BRB’s decision if the ALJ’s findings are supported by

substantial evidence and are in accordance with the law. Id.

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.” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477 (1951). 

The law applicable to this case is well settled. As the

BRB, affirmed by the Fifth Circuit, concluded in a case nearly

identical to this case involving a dispute between two carriers

over responsibility for a subsequent injury and disability, 

if the disability . . . resulted from the natural

progression of [a prior] injury and would have occurred
 

1 Gray agrees with this statement of the law, but asserts

that the ALJ did not apply it. After reviewing the final order,

we conclude that the ALJ clearly applied the correct law.

4

notwithstanding the [subsequent] injury, then the

[prior] injury is compensable and accordingly, [the

prior carrier] is the responsible carrier. If, on the

other hand, the [subsequent] injury aggravated,

accelerated, or combined with claimant’s prior injury,

thus resulting in claimant’s disability, then the

[subsequent] injury is the compensable injury, and [the

subsequent carrier] is the responsible carrier.

Crawford v. Equitable Shipyards, Inc., 11 BRBS 646, 649-50 (1979)

(citations omitted), aff’d sub nom. Employers Nat’l Ins. Co. v.

Equitable Shipyards, 640 F.2d 383 (5th Cir. 1981). This rule is

also referred to as the aggravation rule, see Strachan Shipping

Co. v. Nash, 782 F.2d 513 (5th Cir. 1986), or the two-injury

rule, see Foundation Constructors, Inc. v. Director, Office of

Workers Compensation Programs, 950 F.2d 621 (9th Cir. 1991).1

The ALJ relied on the testimony of Dr. Vorhoff, Gros’s

treating physician, who provided the only medical expert

testimony. Dr. Vorhoff testified that while the second heart

attack (and resultant disability) was “related to” and “a late

sequela” of the first heart attack, he thought performing

strenuous work in a hot environment (such as Gros performed) and

the stress of working could exacerbate a preexisting heart

condition and that the exertion at work precipitated Gros’s

second heart attack. Gray emphasizes Dr. Vorhoff’s testimony

that the second heart attack was a sequela of the first one to
5

argue that the subsequent disability was a natural progression of

the prior injury, but this ignores Vorhoff’s further testimony

about the relationship between working and the aggravation of

Gros’s condition. Based on Dr. Vorhoff’s testimony, reasonable

minds could conclude that the disability did not result from the

natural progression of the first heart attack but was aggravated,

accelerated, or exacerbated by working. Thus, there is

substantial evidence to support the conclusion that Gray is

responsible for Gros’s disability benefits. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the final order of the

Benefits Review Board.