* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion

should n ot be published and is not precedent except under the limited circumstances

set forth in 5 TH C IR

. 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 revi ew of the Benefits Review

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

disability award, p ursuant 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 bene fits 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 adminis trative 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 Ingal ls 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 hear ing 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 re newed 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 hav ing had ample

opportunity to obtain Stanfield's affidavit at the time t he case

was tried originally, justice would not be served by the

introduction of the supplemental affidavit. The ALJ proceeded to

analyze, however, th e 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. S ee Mendoza v. Marine

Personnel Co., 46 F.3d 498, 500 (5th Cir. 1995). The ALJ4

d etermines the weight to be accorded to evidence and makes

c redibility determinations, neither of which functions we will

disturb on appeal. S ee 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

subm itted” where such evidence is necessary “'to render justice

under the act.'” O ’Ke efe 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

faili ng to admit the supplemental Stanfield affidavit to prove

causation. S ee, 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 a nticipate 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 mak e 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

o riginal 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

compe nsation 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 questi on under § 922, as interpreted by A erojetGeneral 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

o riginal 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 VACA TED, and this matter is REMANDED to the BRB for

further appropriate proceedings.