United States Court of Appeals 

For the First Circuit 

No. 18-1225 

LUIS PEÑA-GARCIA, 

Petitioner, 

v. 

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED 

STATES DEPARTMENT OF LABOR; CALZADILLA CONSTRUCTION CORPORATION; 

IMS INSURANCE COMPANY OF PUERTO RICO, 

Respondents. 

PETITION FOR REVIEW OF A FINAL ORDER OF THE BENEFITS REVIEW 

BOARD, UNITED STATES DEPARTMENT OF LABOR 

Before 

Howard, Chief Judge, 

Lynch and Lipez, Circuit Judges. 

Emilio F. Soler on brief for petitioner. 

Manuel Porro-Vizcarra and Manuel Porro-Vizcarra Law Offices 

on brief for respondents Calzadilla Construction Corporation and 

IMS Insurance Company of Puerto Rico. 

March 1, 2019 
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LYNCH, Circuit Judge. This case raises the question of 

what is a "successful prosecution" in a claim for benefits under 

the Longshore and Harbor Workers' Compensation Act (LHWCA), so as 

to warrant an award of attorney's fees to a claimant. See 33 

U.S.C. § 928. 

After suffering a disabling back injury in 1994 while 

working for Calzadilla Construction Corporation (Calzadilla) in 

Puerto Rico, Luis Peña-Garcia (Peña) sought coverage for spinal 

surgery. Calzadilla's insurer, IMS Insurance Company of Puerto 

Rico (IMS), said it would pay for such surgery in Puerto Rico, 

where Peña's surgeon was willing and able to perform it. Peña 

rejected that and said the surgery must be at Beth Israel Spine 

Institute in New York. Peña then filed a claim for medical 

compensation for surgery in New York against Calzadilla and IMS 

under the LHWCA. 33 U.S.C. § 901 et seq. 

An LHWCA administrative law judge (ALJ) determined that 

Calzadilla and IMS had never refused to pay for the surgery and 

rejected Peña's claim that it was necessary to perform his surgery 

in New York. Consequently, the ALJ later held that Peña was not 

entitled to attorney's fees and costs. The U.S. Department of 

Labor Benefits Review Board (the Board) affirmed the denial of 

attorney's fees and costs. Finding no error, we deny Peña's 

petition for review. 
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I. 

A. Facts 

The pertinent facts are not disputed. At all relevant 

times, Peña lived and worked in Puerto Rico. Peña's back injury 

at Calzadilla left him totally and permanently disabled. 

Calzadilla and IMS accepted liability for Peña's injury and began 

paying him medical benefits even before he made the claim at issue 

here. 

On March 15, 2010, Peña saw an orthopedic surgeon, Dr. 

Luis Pio Sánchez-Caso (Dr. Sánchez), who recommended that Peña 

undergo a laminectomy decompression, a "complex spine 

reconstruction" surgery. Dr. Sánchez was willing and able to 

perform the surgery at San Pablo Hospital in Puerto Rico. Dr. 

Sánchez, though not board-certified, had post-graduate training in 

the area of orthopedic surgery, had performed spinal surgeries 

since 1998, and had previously performed the surgery that Peña 

needed in Puerto Rico. Peña could also obtain the rehabilitation 

he needed from two HealthSouth locations in Puerto Rico. The 

medical director of HealthSouth, Dr. Edward Ramos, was boardcertified in physical medicine and in rehabilitation with a spinal 

cord injury medicine subspecialty. 

Peña wanted instead to have the spinal surgery at Beth 

Israel Spine Institute in New York because it is "close to [his] 

family" and has "a record of being the best institution." In a 
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letter to Peña's attorney, dated April 13, 2010, IMS rejected that 

request and stated: 

Please be advised that we can not cover your 

client's surgery outside of Puerto Rico. He 

has been examined and evaluated by a competent 

surgeon, Dr. S[á]nchez[-]Caso, who 

recommended the surgery in Puerto Rico, at the 

San Pablo Hospital. 

Additionally, our decision is based on the 

fact that Mr. Peña and his immediate family 

continue to reside in Puerto Rico, and, Mr. 

Peña's recovery time will be approximately 

three months to one year and he will need 

considerable family assistance during his 

recovery. Under these circumstances, we must 

respectfully deny Mr. Peña's request to 

undergo his surgery outside Puerto Rico.

B. Procedural History 

On October 13, 2010, Peña submitted a claim to the 

Director of the Office of Workers' Compensation Programs (the 

Director) against Calzadilla and IMS under the LHWCA, on the ground 

that IMS's refusal to pay for spinal surgery in New York violated 

the LHWCA's requirement that "[t]he employer shall furnish such 

medical, surgical, and other attendance or treatment . . . for 

such period as the nature of the injury or the process of recovery 

may require." 33 U.S.C. § 907(a). The Director referred the case 

to the Office of Administrative Law Judges. After the parties 

tried unsuccessfully to settle the matter, an ALJ held a hearing 

on September 17, 2015. At the hearing, IMS did not dispute that 
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Peña was entitled to medical benefits from Calzadilla due to his 

back injury, including for surgery in Puerto Rico. 

On March 22, 2016, the ALJ ordered Calzadilla and IMS to 

"furnish to [Peña], such reasonable, appropriate, and necessary 

medical care and treatment as his back and neck injury which 

occurred on May 16, 1994, may require, including spinal surgery 

and post-surgery care such as rehabilitation." The ALJ's decision 

further stated that Calzadilla "will be liable only for the medical 

costs and incidental expenses associated with obtaining such care 

and treatment in Puerto Rico, regardless of where [Peña] chooses 

to obtain such care and treatment." Peña could, of course, have 

the surgery done in New York, but he would then be responsible for 

whatever additional expenses he incurred. 

Peña's attorney then submitted a request to the ALJ for 

$60,515 in attorney's fees and $4,000 in fees for Peña's treating 

physician who had testified at the hearing. His argument was based 

on the assertion that Peña had successfully prosecuted the earlier 

claim before the ALJ, on the theory that his claim had been a 

victory because he had obtained what he called his right to choose 

to have the surgery in New York. 

On August 3, 2016, the ALJ issued a supplemental decision 

and order denying the request for attorney's fees and costs. The 

ALJ stated that Peña had not obtained a "successful prosecution," 

which is required to recover attorney's fees and costs under the 
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LHWCA, because IMS "has been paying compensation to [Peña] prior 

to the hearing and has not refused to pay for [Peña's] surgery in 

Puerto Rico." The ALJ also noted that "[t]here is no evidence 

that [IMS] at any point . . . refused to cover any portion of 

[Peña's] surgery if it were performed outside Puerto Rico."1 The 

ALJ added, "[h]ad [IMS] asserted that it would refuse to pay for 

any portion of [Peña's] surgery and rehabilitation if it were 

performed in New York, [Peña] would have been successful in 

litigating his case." The ALJ determined that Peña "did not gain 

any additional benefit above [and] beyond what he would have 

received had he not initiated this claim." 

On September 2, 2016, Peña filed a petition for 

reconsideration on the issue of attorney's fees and costs. The 

ALJ denied the petition on October 5, 2016. Peña appealed the 

denial of attorney's fees and costs to the Board, which affirmed 

the ALJ's decision on September 13, 2017. The Board stated that 

Peña's self-proposed "'right to choose' to have the surgery in New 

York is not a 'victory' under the [LHWCA], because [the] employer's 

liability is limited to the cost of surgery and rehabilitation in 

Puerto Rico, which [the] employer had agreed to before the 

proceedings were initiated." The Board determined that Peña "did 

not obtain a tangible benefit that [the] employer had denied him." 

 1 Peña did not challenge this finding before the Board. 
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On January 16, 2018, the Board denied Peña's motion for 

reconsideration. Peña then petitioned this court for review of 

the Board's decision. 

II. 

"This court reviews the [Board's] decision on legal 

issues de novo and determines whether the Board adhered to the 

'substantial evidence' standard when it reviewed the ALJ's factual 

findings." Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st Cir. 

1999). "In reviewing for substantial evidence, we assess the 

record as a whole, and we will affirm so long as we are satisfied 

that the record contains 'such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.'" Bath 

Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 

2003) (quoting Sprague v. Dir., Office of Workers' Comp. Programs, 

U.S. Dept. of Labor, 688 F.2d 862, 865 (1st Cir. 1982)). 

The LHWCA grants attorney's fees in two situations. 33 

U.S.C. § 928(a)-(b). Under subsection (a) of the LHWCA's fee 

provision, attorney's fees "shall be awarded" to a claimant when 

the employer "declines to pay any compensation . . . on the ground 

that there is no liability" and the claimant "utilize[s] the 

services of an attorney at law in the successful prosecution of 

his claim." Id. § 928(a). Under subsection (b), if the employer 

accepts liability but the parties dispute the amount of 

"compensation" and the claimant "utilizes the services of an 
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attorney," the claimant "shall be awarded" attorney's fees if 

"compensation thereafter awarded is greater than the amount paid 

or tendered by the employer or carrier."2 Id. § 928(b). 

The Board's decision is both correct and supported by 

substantial evidence. Peña makes an argument under subsection (a) 

that he obtained a "successful prosecution" because Calzadilla and 

IMS "raised a complete challenge to [his] request for treatment in 

New York." The argument is wrong. Subsection (a) is triggered 

only when the employer or insurance carrier denies liability and 

refuses to pay the claimant "any compensation." Id. § 928(a). In 

fact, IMS was paying Peña some compensation in the form of medical 

benefits before this claim was initiated, calling into question 

whether subsection (a) applies at all. But we bypass that question 

to address the surgery compensation issue. The employer's actions 

here do not amount to a refusal to pay "any compensation." See 

id. There is no evidence that Calzadilla and IMS refused to cover 

the cost of the surgery in Puerto Rico. 

Peña's argument under subsection (b) also fails. He 

mischaracterizes the ALJ's decision both as confirming his "right 

 2 As to costs, the LHWCA provides that "[i]n cases where 

an attorney's fee is awarded against an employer or carrier there 

may be further assessed against such employer or carrier as costs, 

fees and mileage for necessary witnesses attending the hearing at 

the instance of claimant." 33 U.S.C. § 928(d). 
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to choose surgery/rehabilitation treatment in New York" and as an 

award of "additional compensation." Subsection (b) requires that 

Peña show that the "additional compensation" awarded after he filed 

his claim was "greater than the amount paid or tendered by the 

employer or carrier." Id. § 928(b). The LHWCA defines 

"compensation" as "money allowance payable to an employee or to 

his dependents as provided for in this chapter." Id. § 902(12); 

see Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor 

v. Baca, 927 F.2d 1122, 1124 (10th Cir. 1991) (noting that, under 

the LHWCA, "attorney[']s fees may only be awarded when the claimant 

has gained some economic benefit."). Peña was not awarded 

compensation greater than that tendered by his employer because 

there is no evidence that IMS refused to pay for surgery at the 

Puerto Rico cost, regardless of where Peña chose to have the 

surgery. 

Peña's argument is also doomed by this court's decision 

in Barker v. U.S. Dep't of Labor, 138 F.3d 431 (1st Cir. 1998). 

In Barker, the petitioner argued that he was entitled to attorney's 

fees under subsection (b) because, "though he had not secured any 

additional benefits," he "was the prevailing party in the sense 

that the administrative proceedings confirmed his entitlement to 

LHWCA benefits." Id. at 438. Barker held that this argument 

"distorts the contours of subsection (b)" because under its plain 

meaning, entitlement to attorney's fees "turns on whether the 
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claimant succeeds in securing additional compensation."3 Id. 

(emphasis added). Peña did not secure any additional compensation 

by filing his claim. The Board did not err in denying the request 

for attorney's fees and costs. 

The petition for review, which is without merit, is 

denied. 

 3 In Barker, we left open the question of "whether medical 

benefits are (or are not) subsumed within the phrase 'additional 

compensation'" in the LHWCA's attorney's fee provision. Barker, 

138 F.3d at 439. As in Barker, we need not address that issue, 

because "[t]he record is bereft of any credible evidence indicating 

that . . . the petition brought about a payment that would not 

otherwise have occurred." Id.