* Pursuant to 5TH CIR. 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should not be published and is not precedent except under the limited circumstances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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60657

Summary Calendar

_______________

HARRELL E FRANKO,

Petitioner,

VERSUS

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

and

INGALLS SHIPBUILDING, INC.,

Respondents.

_________________________

Petition for Review of an Order of

the Benefits Review Board

(94-2230)

_________________________

May 22, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Harrel Franko petitions for review of the Benefits Review

Board's (“BRB's”) denial of his petition for modification of a

disability award, pursuant to the Longshore and Harbor Workers'
2

Compensation Act (“LHWCA”), 33 U.S.C. § 922. Concluding that the

BRB should have granted the modification, we grant the petition for

review, vacate the BRB's order, and remand.

I.

Franko, an employee of Ingalls Shipbuilding, Inc. (“Ingalls”),

from approximately 1957 to 1991, filed in April 1987 a claim for

compensation benefits for an alleged occupational hearing loss

under the LHWCA, 33 U.S.C. § 901, et seq. He alleged that he had

been exposed to various loud noises while employed at Ingalls and,

as a result, had sustained significant hearing loss.

In September 1993, an administrative law judge (“ALJ”)

determined that Franko had failed to prove that the working

conditions at Ingalls caused or aggravated his hearing loss.

Although Franko had submitted an affidavit from Gordon Stanfield,

Ph.D., in which Stanfield diagnosed partial hearing loss and noted

that Franko had been exposed to high-level noise at work, the ALJ

concluded that Stanfield had failed to opine that exposure to an

injurious level of noise at Ingalls was the cause in fact of

Franko's hearing loss.

In March 1994, Franko petitioned the ALJ to reconsider and to

admit, pursuant to § 922, a second affidavit in which Stanfield

opined, “with a reasonable degree of scientific audiological

certainty, that the high level of noise exposure at [Franko's]
3

employment at Ingalls Shipbuilding, Inc. directly caused

Mr. Franko's sensory hearing loss.” The ALJ denied Franko's

petitions to reconsider and to supplement the record, noting that

the filing of the supplemental affidavit was merely an attempt to

relitigate after the record had been closed.

Franko renewed his petitions, and in December 1994 the ALJ

again excluded the supplemental affidavit. According to the ALJ,

because of the passage of time from Franko's original filing of his

compensation claims and because of Franko's having had ample

opportunity to obtain Stanfield's affidavit at the time the case

was tried originally, justice would not be served by the

introduction of the supplemental affidavit. The ALJ proceeded to

analyze, however, the contents of the supplemental affidavit,

concluding that its introduction would have “[c]learly” and

“unequivocally” satisfied the prima facie case for Franko's hearing

loss claim. Franko appealed to the BRB, and the ALJ's decisions

were affirmed by default because they were not acted upon by the

BRB within a year from the date of appeal.

II.

We review the decisions of the BRB for errors of law and apply

the same substantial evidence standard that governs the BRB’s

review of the ALJ’s factual findings. See Mendoza v. Marine

Personnel Co., 46 F.3d 498, 500 (5th Cir. 1995). The ALJ
4

determines the weight to be accorded to evidence and makes

credibility determinations, neither of which functions we will

disturb on appeal. See Avondale Shipyards v. Kennel, 914 F.2d 88,

91 (5th Cir. 1990). 

Section 922 permits the ALJ to modify a disability award,

within one year of the date of rejection of the claim, on the basis

of a “change in conditions or because of a mistake in a

determination of a fact.” A “mistake in a determination of a fact”

is construed broadly to include “wholly new evidence, cumulative

evidence, or merely further reflection on the evidence initially

submitted” where such evidence is necessary “'to render justice

under the act.'” O’Keefe v. Aerojet-General Shipyards, 404 U.S.

254, 256 (1971). The Supreme Court has reiterated most recently

its intent to construe broadly a “mistake in the determination of

fact” to achieve the comprehensive remedial purposes of the LHWCA.

See Metropolitan Stevedore Co. v. Rambo, 115 S. Ct. 2144, 2147

(1995). 

In light of this broad construction of mistakes to comport

with the directive to do justice under the LHWCA, the ALJ erred in

failing to admit the supplemental Stanfield affidavit to prove

causation. See, e.g., Dobson v. Todd Pac. Shipyards Corp., 21

B.R.B.S. 174, 176 (1988) (noting that it is an abuse of discretion

under § 922 to fail to admit new evidence demonstrating causation

between the alleged damages and the employee's working conditions).
1 As Franko notes, however, during this six-year period Ingalls was paying

for Franko’s audiology examinations and treatments and had made partial payments

to him for his hearing problems. Thus, according to Franko, “until the end of

that six years of honeymoon treatment, he had no reason to anticipate that he

needed to prepare for any hearing.”

5

Where, as here, the ALJ determines “[c]learly” and “unequivocally”

that admission of the supplemental affidavit would thereby satisfy

Franko’s burden to make a prima facie case, failure to admit the

affidavit does not render justice under the LHWCA.

The ALJ was moved in large part by the apparent injustice that

re-opening the record would have on Ingalls, noting that the

original trial before the ALJ was held nearly one year after the

case had been referred to the ALJ and six years after the claim for

compensation had been filed.1 In such time, the ALJ reasoned,

Franko should have been able to present the supplemental affidavit

at the original trial.

Assuming arguendo the correctness of the ALJ’s determination

of the potential injustices to Ingalls from re-opening the case,

the relevant question under § 922, as interpreted by AerojetGeneral and as we have stated herein, is whether the admission of

evidence to correct a mistake of fact would “render justice under

the act.” 404 U.S. at 256. Although § 922 “should not be allowed

to become a back door route to re-trying a case because one party

thinks he can make a better showing on the second attempt,” McCord

v. Cephas, 532 F.2d 1377, 1380 (D.C. Cir. 1976), we do not believe

that such was the case in the instant appeal. 
6

Rather, Franko submitted medical evidence via Stanfield’s

original affidavit demonstrating that Franko (1) had worked at

Ingalls for twenty-one or twenty-two years; (2) had been exposed

during his employment at Ingalls to high-level noise from chippers,

grinders, needle guns, and hitting eight pound mauls; and

(3) suffered partial binaural hearing impairment. Franko's effort

to supplement this affidavit with an additional sentence in which

Stanfield would indicate directly that Franko's employment at

Ingalls caused the hearing loss was a good-faith attempt to address

the ALJ’s evidentiary concerns and thereby achieve the relief under

the LHWCA to which the ALJ acknowledged, in his review of the

supplemental affidavit, Franko was “[c]learly” and “unequivocally”

entitled.

Accordingly, the petition for review is GRANTED, the order of

the BRB is VACATED, and this matter is REMANDED to the BRB for

further appropriate proceedings.