* Pursuant to 5 TH C IR

. R. 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 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 5, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60771

(Summary Calendar)

CERES GULF, INC.

Petitioner,

versus

DIRECTOR,

OFFICE WORKER’S COMPENSATION PROGRAM,

U.S. DEPARTMENT OF LABOR

Respondent.

Appeal from the United States Department of Labor

Benefits Review Board

BRB No. 03-0745

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Afte r sust aining an injury to his shoulder during the course of his employment as a

longshoreman for Ceres Gulf, Inc. (“Ceres”), Lawrence Keys filed a claim for workers’ compensation

benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “the Act”),

as amended, 33 U.S.C. § 901 et seq

. Ceres now appeals from the decision of the Unit ed States2

Department of Labor Benefits Review Board (“the Board”) affirming the decision of an administrative

law judge (“ALJ”). The ALJ awarded benefits in favor of Keys after finding Ceres liable under the

“aggravation rule” of general workers’ compensation law, and denied Ceres’ claim for relief pursuant

to § 908(f) of the LHWCA. The sole issue on appeal is whether the Board erred in upholding the

ALJ’s decision denying Ceres’ application for § 908(f) relief. For the reasons stated below, the order

of the Board is AFFIRMED.

BACKGROUND

Keys began working for Ceres sometime in 1968. In December of 1998, he injured his left

shoulder after being struck by a medal latch ing rod (“the accident”). He filed a claim for

compensation under the Act in July of 2000. Ceres controverted his claim, but voluntarily paid Keys

temporary total disabilit

y and permanent partial disabilit y benefits, and then applied for relief pursuant

to § 908(f).

Following a hearing on Keys’ claim, the ALJ awarded Keys the compensation previously paid

by Ceres: temporary total disability from January 11, 1999 to January 31, 1999, and August 17,

1999 to June 5, 2000, and permanent partial disabilit y benefits from June 6, 2000 to January 23,

2003. The ALJ additionally awarded Keys continuing permanent partial disability benefits from

January 24, 2003, as is prescribed under 33 U.S.C. § 908(c)(21). The ALJ also denied Ceres’ request

for § 908(f) relief. Although finding that Ceres had established that Keys had pre-existing injuries

that were “manifest” to Ceres, the ALJ concluded that Ceres failed to prove that Keys’ pre-existing

conditions made his present disabilit y “materially and substantially greater than it would have been

had he suffered his shoulder injury alone. The ALJ also rejected Ceres’ claim for § 908(f) relief.1 § 908(i)(4) states in pertinent part that,

[t]he special fund shall not be liable for reimbursement of any sums paid or payable

to an employee or any beneficiary under such settlement, or otherwise voluntarily

paid prior to such settlement by the employer or carrier, or both.

3 Ceres appealed the ALJ’s decision to the Board, contesting the ALJ’s benefits award to Keys

and the denial of its request for § 908(f) relief. Ceres’ appeal specifically challenged the ALJ’s

findings as to Keys’ post-injury wage-earning capacity, the date that Keys reached maximum medical

improvement, and the denial of Ceres’ application for § 908(f) relief. While the appeal was pending,

Keys and Ceres ent ered into a settlement agreement as to all of Keys’ claims. The agreement

obligated Ceres to compensate Keys for all the in juries alleged to have occurred as a result of the

accident. The agreement specifically reserved Ceres’ right to pursue it s § 908(f) claim on appeal.

The settlement agreement was presented to the Office of the District Director for approval and for

issuance of a compensation order, as is required under § 908(i) of the Act. Because the matter was

still pending before the Board, the District Director ruled that it could not consider the se ttlem ent

agreement until the Board remanded the case to it. Ceres therefore filed a motion for partial remand

of the case to the District Director for consideration of the settlement agreement, including its right

to pursue its § 908(f) claim. The Board remanded t he mat t er in its entirety

to the Director for

consideration of the § 908(i) application. The Board additionally ruled that once the Director ruled

on the § 908(i) application, Ceres could pursue its § 908(f) claim on appeal.

After the case was remanded, the Director approved the parties’ § 908(i) application, and

Ceres perfected its appeal to the Board. The judge ordered Ceres to brief whether provisions under

§ 908(i) acted to preclude its § 908(f) claim, partic u larly with respect to § 908(i)(4) of the Act. 14

Because neither Ceres, nor the Director, received notice of the Board’s reinstatement of the appeal

until July 7, 2004, Ceres filed a motion and supporting memorandum to reset the deadline so that

it could t imely submit its brief. Despite Ceres’ motion, the Board declined to rule on it, and instead

issued an order affir ming t he ALJ’s decision denying Ceres’ application for § 908(f) relief. This

appeal by Ceres ensued, and solely seeks review of the Board’s decision as to the denial of Ceres’

application for § 908(f) relief.

STANDARD OF REVIEW

We review the Board’s determinations of law de novo

, applying the same standard the Board

used to review the decision of the ALJ. N ew Thoughts Finishing Co. v. Chilton

, 118 F.3d 1028,

1030 (5th Cir. 1997). The Board’s determination of whether § 908(f) relief was properly denied or

gra nt ed is question of law. C eres Marine Terminal v. Hinton

, 243 F.3d 222, 224 (5th Cir. 2001).

The ALJ’s findings of fact must be supported by substantial evidence. 33 U.S.C. § 921(b)(3);

O’Keefe v. Smith, Hinchman & Grylls Ass., Inc

., 380 U.S. 359, 361-62 (1965); Hinton

, 243 F.3d at

224; Ceres Marine Terminal v. Director, OW CP , 118 F.3d 387 (5th Ci r. 1997) (stati ng that “the

LHWCA requires the [Board] to accept the fi ndings of the ALJ ‘unless they are not supported by

substantial evidence in the record considered as a whole or unless they are irrational’”) (quoting 33

U.S.C. § 921(b)(3)); Equitable Equipment Co., Inc. v. Hardy

, 558 F.2d 1192, 1196 (5th Cir. 1977)

(stating that “[t]he standard by which we review administrative decisions under this Act is to reverse

only if there is an error of law or when a finding of fact is unsupported by substantial evidence on the

record considered as a whole”).5 APPLICABLE LAW

The Supreme Court has long since stated that one of the major purposes of § 908(f) of the

Act is “the prevention of employer discrimination against handicapped wor kers.” L awson v.

Suwannee Fruit & S.S. Co.

, 336 U.S. 198, 201 (1949); see also Hinton

, 243 F.3d at 225-26. Section

908(f) acts to counter an employer’s fear of increased liability by redirecting the costs of employee

compensation to the fund if certain conditions are met. The statute provides in pertinent part that,

[i]n . . . cases in which the employee has a permanent partial disabilit y, found not to

be due solely to that injury, and such disabilit y is materially and substantially greater

than that which would have resulted from the subsequent injury alone, the employer

shall provide . . . compensation for 104 weeks only.

33 U.S.C. § 908(f). After that 104 week period, the employee is compensated from the fund.

Notwiths t anding Congress’ intent under § 908(f), the Act still operates as a traditional

workers’ compensation scheme employing the aggravation rule. Ceres Marine Terminal , 118 F.3d

at 387 (stating that [u]nder the traditional ‘aggravation rule’ of workers’ compensa tion l aw, an

employer is liable for a worker’s entire disabilit y even though the disabilit y was the result of both the

current employment injury and a pre-existing impairment”). “Under the Act’s aggravation rule, if an

employment injury aggravates, accelerates, exacerbates, contributes to, or combines with, a previous

infirmit y, disease or underlying condition, the empl o yer is liable for compensation for, not just the

disabilit y resulting from the [current] employment i nj ury, but the employee’s total resulting disability.”

Hinton

, 243 F.3 d at 226; C eres Marine Terminal

, 118 F.3d at 387. This rule parallels the old

common law principle that a “tortfeasor takes his victim as he finds him.” Director, OWCP v. Ingalls

Shipbuilding, Inc. ,125 F.3d 303, 306 (5th Cir. 1997). As we have stated, however, § 908(f) acts to

mitigate an employer’s liabilit y in cases where an employee suffers a permanent total disabilit y, if the6

employer meets the requisite statutory requirements: the employer must establish that the employee

(1) has a pre-existing permanent partial disability; (2) the pre-existing disabilit y was manifest to the

employer; and (3) the second disabilit y, i.e., the one that resulted from a new or second work-related

injury, did not result solely from the second injury, but was a result of both the second injury and the

employee’s existing or current permanent partial disabilit y. T wo “R” Drilling Co., Inc. v. Director,

OWCP

, 894 F.2d 748, 750 (5th Cir. 1990); see also Hint on , 243 F.3d at 226 (instructing that

“[w]here certain conditions are met, § 908(f) limit s an employer’s compensation liabilit y, with any

additional compensation being paid from the special fund established by § 44 of the Act”). To meet

the requirements for special fund relief where an employee has suffered a permanent partial disabilit y,

the employer “must make not only th e t hree showings listed above, but must also show that the

current permanent partial disabilit y ‘is materially and substantially greater than that which would have

resulted from the subsequent injury alone.’” Two “R” Drilling Co., Inc. , 894 F.2d at 750 (quoting

33 U.S.C. § 908(f)(1)); see also Louis Dreyfus Corp. v. Director, OWCP , 125 F.3d 884, 887 (5th

Cir. 1997). In satisfying this fourth prong, “the employer must offer some proof of the extent of the

permanent partial disabilit y had the pre-existing injury never existed.” I ngalls Shipbuilding, Inc. ,125

F.3d at 308.

DISCUSSION

A. Section 908(f) relief

Ceres’ sole contention on appeal is that the ALJ erred in finding that it did not satisfy the

requisite elements necessary for § 908(f) relief. Ceres argues that the evidence establishes that Keys’

pre-existing injuries rendered him substantially and materially more disabled than he would have been

had he suffered the shoulder injury alone. Ceres’ argument is predicated on its presumption that the7

ALJ erred in not crediting the testimony of Keys’ treating physician, Dr. Monroe Laborde, opining

that Keys’ prior injuries mad e him mo re disabled than he would have been had he suffered the

shoulder injury alone. Ceres’ states that its ultimate goal is to o bt ain relief from the fund for the

period following the first 104 weeks of the accident. The question before us is whether the ALJ’s

findings that Ceres did not meet its burden of establishing the requisite elements for § 908(f) relief

are supported by substantial evidence on this record. Because we answer this question in the

affirmative, Ceres’ claim as to this issue is without merit.

Ceres had the burden of establishing four elements to make the requisite showing needed to

obtain § 908(f) relief. S ee Louis Dreyfus Corp.

, 125 F.3d at 887 (observing that “the employer bears

t he burden of persuading the factfinder that the disability was exacerbated by the pre-existing

condition”). The ALJ concluded that Ceres failed to meet its burden because it did not establish the

last two elements of the test, i.e., that Key s’ current disability was not due solely to his current

employment injury; and that Keys’ current permanent partial disabilit y, i.e., his shoulder injury, was

made materially and substantially greater than what it would have been had he suffered the current

injury alone. We have carefully reviewed the record and conclude that there is substantial evidence

to support the ALJ’s finding.

Despite the testimony of Dr. Laborde, the ALJ heard testimony that Keys had fully recovered

from his ankle injury by the time he returned to worked for Ceres in 1982. In other words, the judge

heard evidence that Keys was no longer partially disabled. The record reveals evidence that Keys was

required to pass a physical examination before returning full-t ime to his position as a Longshoreman.

Additionally, we find no evidence, aside from Laborde’s testimony, that Keys’ prior injuries in any

way contributed to his current injury. S ee Ingalls Shipbuilding, Inc. ,125 F.3d at 306 (finding that the8

ALJ did not err in determining that the employer failed to pro ve t he “materially and substantially

greater” element of the test because the employer merely relied on testimony). We recognize that in

its brief Ceres also relies on the testimony of Nancy Favaloro, Keys’ vocational counsel, for its

contention that Keys’ pre-existing injuries contributed to his current disabilit y. However, our review

of Favaloro’s testimony finds that her statements were ambivalent about the question of whether

Keys’ pre-existing injuries had contributed to his current disabilit y. Thus, Ceres essentially requests

that this court accept the opinion of Laborde, Keys’ treating physician, even though the ALJ expressly

rejected it. S ee Ingalls Shipbuilding

, 125 F.3d at 307 (observing that where there was conflict ing

t est imo ny, the ALJ was entitled to give more weight to some testimony and less weight to o t her

testimony). We have said before that “this court does not have the expertise necessary to properly

evaluate the complex and frequently conflicting testimony of neurological surgeons, orthopedist, and

other medical experts on this score. Instead, we must leave this particular fact finding decision

precisely where Congress placed it– with the ALJ.” C eres Marine Terminal

, 118 F.3d at 391. The

ALJ was well within his province to reject Laborde’s testimony, especially since there was no other

medical evidence presented to corroborate the doctor’s position. Our sole task in the context of this

review is to determine whether, on the record as a whole, the ALJ’s findings are supported by

substantial evidence. We will not reweigh or reappraise that evidence. S ee Louis Dreyfus Corp.

, 125

F.3d at 886. The ALJ suggested that he found no relationship between Keys’ prior injuries and the

injury to his shoulder, and thus, no evidence that Keys’ shoulder injury aggravated or exacerbated any

of Keys’ pre-existing permanent partial impairments. The ALJ stated that,

[Keys] was able to engage in heavy or very heavy work prior to his December 4, 1998

workplace accident. While Dr. Liccciardi opined on February 8, 1973, that [Keys]

should avoid carrying heavy loads, walking on beams, or climbing heights because of9

[his] weak ankle, over time [Keys] was able to return to work at full duty without any

restrictions , as Dr. Liccciardi had predicted. . . . Only as a result of his December 4,

1998 workplace accident was [Keys] restricted to medium level work and unable to

resume his former job. Indeed, a review of the medical report s reveals a dearth of

complaints to [Keys’] physicians concerning his leg, back, or eye. While Dr. Laborde

and Ms. Favaloro testified t hat [Keys’] current condition was materially and

substantially worse because of his pre-existing impairments, [Keys] did not suffer a

permanent disabilit

y as a result of his pre-existing injuries, and but for [Keys’]

December 4, 1998 workplace injury,

. . . [Keys] would have been able to continue his

longshore employment (emphasis supplied). . . .

The ALJ’s findings on this record are not irrati o nal. Because we find that there is more than a

scint illa of evidence for a reasonable person to conclud e that Ceres fai l ed to m eet i ts burden of

establishing the requisite elements required fo r § 908(f) relief, we cannot conclude that the Board

erred in affirming the decision of the ALJ.

CONCLUSION

For the foregoing reasons, the final order and judgment of the Board affirming the decision

of the ALJ denying Ceres’ application for § 908(f) relief is affirmed.

AFFIRMED.