### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 60707

PETRON INDUSTRIES, INCORPORATED; AMERICAN HOME ASSURANCE COMPANY,
Petitioners,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; RYAN COURVILLE,
Respondents.

Petition for Review of an Order of the Benefits Review Board BRB No. 14

- 0079

Before STEWART, Chief Judge , and BARKSDALE and PRADO, Circuit Judges

. PER CURIAM: * Respondent Ryan Courville (“Courville”) filed a claim for benefits un der the Longshore and Harbor Workers’ Compensation Act , 33 U.S.C. § § 901, et
seq ., against Petron Industries (“ Petron ”) and American Home Assurance (collectively, “Petitioners” ), alleging that he injured his thoracic spine while lifting equipment aboard an inland barge in 2007 . Relevant to this petition, Courville sought Petron ’s authorization of surgical intervention for his spine

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be publish ed 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 September 9, 2015 Lyle W. Cayce Clerk Case: 14-60707 Document: 00513186141 Page: 1 Date Filed: 09/09/2015No. 14

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2 injury , which Petron denied. Following a formal hearing, the Administrative Law Judge (“ALJ”) ordered Petitioners to pay for the surgery , which had been recommended by Courville’s treating physician . The Benefits Review Board (“BRB”) affirmed the ALJ’s order , deciding that it was supported by substantial evidence and in accordance with the law. For the following reasons, w e de ny the petition for review. I. Facts & Procedural History In February 2007, Courville suffered a work

- related thoracic

- level spine injury while lifting a briefcase containing satellite equipment aboard an inland barge bound for a drilling rig

. On March 19, 2007, Courville saw Dr. Patrick Juneau who review ed an MRI of Courville’ s thoracic spine and recommended physical therapy but did not recommend su rgical intervention at that time

. Seeking a second opinion, Courville began treatment with orthopedic surgeon Dr. John Cobb who also reviewed the MRI and recommended physical therapy and prescription medication

. In June 2007, Courville expressed to Dr. Cobb that the physical therapy was exacerbating his pain, rather than alleviating it, so Dr. C obb referred Courv ille to Dr. Steven Stair e s, a pain management specialist

. Dr. Stair e s p erformed epidural injections, a rhizotomy, and physical therapy, none of which relieved Courville’s pain so he was referred back to Dr. Cobb for further treatment. Dr. Cobb continued to administer further rounds of a lternative treatments , none of which improved Courville’s condition. Consequently , in January 2009, Dr. Cobb recommended surgery 1 and requested Petron ’s authorization

. Following Dr. Cobb’s recommendation of surgery , Pet ron s ought a second medical opinion from Dr. Wayne Lindemann , who saw Courville in February

1 Specifically, Dr. Cobb recommended an “instrumented posterior [spinal] fusion” ranging from levels T8 through T12 and also possibly levels T5 through T6. Case: 14-60707 Document: 00513186141 Page: 2 Date Filed: 09/09/2015No. 14

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3 2009

. Dr. Lindemann reviewed the medical records from Dr. Stair e s’s office and the MRI from 2007 and concluded that the alternative conservative therapy undergone by Cou rville had proved unsuccessful and that it was “more likely than not” that surgical intervention would be required. Upon receiving Dr. Lindemann’s review, Petron sought yet another medical opinion from Dr

. Stanley Foster , who r eviewed the same records approximately two months later and concluded that Courville did not need surgical intervention and could return to work on a medium duty job. Due to the conflicting recommendations regarding surgery , the Office of Workers’ Compensation Programs assigned an independent medical examination of Courville with Dr. Paul Fenn on February 24, 2010. Dr. Fenn obtained and MRI of Courville’s thoracic spine and diagnosed Courville with thoracic disc degeneration, but did not recommend surgical intervention and opined that Courville had reached maximum medical improvement (“MMI”)

. Subsequently, Dr. Cobb died and was replaced by Dr. John Sledge as Courville’s treating orthopedic physician. Dr. Sledge saw Courville in April
2012 and ordered a second MRI of Courville’s thoracic spine , which was administered the following month

. After reviewing the MRI, Dr. Sledge concluded that Courville had not improved after years of physical therapy , medication , and activity modification but was nevertheless “not a sur gical candidate” because

 as he l ater testified

 Petron continued to refuse to authorize payment “for the diagnostic test [required] to confirm” whether

surgery was necessary

. With few other options, Dr. Sledge referred Courville for further pain management

. Dr. Sledge saw Courville again in February 2013, at which time Courville expressed an interest in undergoing “definitive treatment,” i.e. , surgical intervention. Dr. Sledge testified that he concurred in the assessments of Drs. Cobb and Lindemann regardin g surgical intervention and sought to gather records demonstrating the ineffectiveness of Courville’s Case: 14-60707 Document: 00513186141 Page: 3 Date Filed: 09/09/2015No. 14

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4 physical therapy, pain management, and other alternative treatments to “submit for [authorization of] surgical intervention.” A formal hearing was held be fore the ALJ in July 2013

. In his Decision and Order , the ALJ first determined that Courville had not yet reached MMI

. He then found that Courville had established a prima facie claim of total disability by demonstrating that he was unable to return to t he type of work he was performing at the time of the injury . However, he found that Petron had successfully rebutted Courville’s prima facie claim by establishing the existence of suitable alternative employment

 that was reasonably available

 beginning on January 4, 2011

. Moreover, he noted that Courville had failed to exercise due diligence in seeking to obtain that employment. Additionally, w hile the ALJ acknowledged the conflicting medical opinions of the physicians who had evaluated Courville, he also noted that , in certain circumstances, the opinion of a treating physician may be entitled to greater weight than the opinion of a non

- treating physician. See Black & Decker Disability Plan v. Nord , 538 U.S. 822, 830 n.3 (2003). Thus, h e found th at Courville had established a prima facie entitlement to the medical treatment recommended by his treating physician Dr. Sledge

 including the

surgery. See Turner v. Chesapeake & Potomac Tel. Co. , 16 BRBS 255, 257

− 58 (1984) (holding that a claimant estab lishes a prima facie case for compensable medical treatment where a qualified physician indicates treatment was necessary for a work

- related condition). Finally, he concluded that, based on the medical evidence, the surgery and other further medical treat ment recommended by Dr. Sledge, 2 were reasonable and necessary.

2 Dr. Sledge also recommended an epidural steroid injection to assist him with i dentifying and i solating the source of the pain , which would ultimately help limit the scope of the surgery

. Case: 14-60707 Document: 00513186141 Page: 4 Date Filed: 09/09/2015No. 14

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5 In sum, the ALJ awarded Courville: (1) temporary total disability benefits from February 2007 through January 3, 2011; (2) ongoing temporary partial disability benefits beginning January 4, 2011; (3) all reasonable and

necessary medical expenses arising from the work

- related injury including the epidural steroid injection and surgery recommended by Dr. Sledge; and (4) attorney’s fees. The BRB affirmed the ALJ’s order , concluding that it was supported by substantial evidence in the record and in accordance with the law. This petition for review followed

. II. Standard of Review “Our review of the BRB ’ s d ecision is limited in scope to considering errors of law, and making certain that the B RB adhered to its statutory standard of review of factual determina tions, that is, whether the ALJ’ s findings of fact are supported by substantial evidence and are consistent with the law.” Coastal Prod. Servs. Inc. v. Hudson , 555 F.3d 426, 430 (5th Cir. 2009) ( alterations, internal quotation marks, and citation omitted). The BRB must “accept the findings of the ALJ if they are rational and supported by substantial evidence in the record considered as a whole.” Gulf Best Elec., Inc. v. Methe , 396 F.3d 601, 603 (5th Cir. 2004) (citation omitted)

. “Substantial evidence is that relevant evidence

— more than a scintilla but less than a preponderance

— that would cause a reasonable person to accept the fact finding.” Coastal Prod. Servs. Inc. , 555 F.3d at 4 30 ( internal quotation marks omitted)

. As the factfinder, the ALJ “is exclusively entitled to assess both the weight of the evidence and the credibility of witnesses.” Ceres Gulf, Inc. v. Dir., Office of Worker ’ s Comp. Programs , 683 F.3d 225, 228 (5th Cir. 2 01 2 ) (citation s omitted). “The BRB may not substitute its judgment for that of the ALJ or engage in a de novo review of the evidence.” Gulf Best Elec. , 396 F.3d at 603 Case: 14-60707 Document: 00513186141 Page: 5 Date Filed: 09/09/2015No. 14

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6 (citation omitted)

. We review the BRB’s legal conclusions de novo. Coastal Prod. Servs. Inc. , 555 F.3d at 430. III. Analysis Under 33 U.S.C. § 907, “[o]nce an employee establishes that his injury was work

- related, he is entitled to all reasonable and necessary medical expenses related to that injury.” Amer a da Hess Corp. v. Dir., Office of Worker ’ s Comp. Programs , 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C. § 907). It is undisputed that Courville’s spine injury was work

- related. The dispute in this appeal involves the ALJ’s conclusion that the recommended surgery is “reasonable and necessary” treatment for Courville’s injury. “[A] claimant establishes a prima facie case for compensable medical treatment where a qualified physician indicates that such treatment is necessary for a work

related condition.” Id . at 762

. Petitioners as sert that the ALJ erred in weighing the evidence and misstated the law with regard to his discretion to assess the weight of the evidence. 3 Having reviewed the record, we hold that the BRB correctly found that the ALJ’s factual findings were supported by s ubstantial evidence and that the ALJ did not misstate the law. Dr. Cobb, Courville’s first treating physician , recommended surgical intervention involving spinal fusion

. Dr. Lindemann

 a physician hired by Pet ron

 agreed and concluded that

“ Courville will more likely than not require surgical intervention” and referr ed Courville to a spine specialist for further evaluation. Finally, Dr. Sledge, Courville’s second treating physician, testified that he agreed with the assessments of Drs. Cobb and Linde mann regarding surgical intervention.

3 In their reply brief , Petitioners assert a third argument related to the ALJ’s authority to direct open

- ended future treatment. We decline to address this argument, as “[w]e generally do not consider arguments made for the first time in a reply brief and deem [such] arguments waived.” United States v. Myers , 772 F.3d 213, 218 (5th Cir. 2014). Case: 14-60707 Document: 00513186141 Page: 6 Date Filed: 09/09/2015No. 14

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7 Additionally, the physicians recommending surgery only did so after attempting numerous alternative methods of treatment, none of which proved successful. While i t is true, as the ALJ acknowledged, that at least two other doctors opined that surgical intervention was not necessary , this court has consistently held that the ALJ , as the factfinder, “is exclusively entitled to assess both the weight of the evidence and the credibility of witnesses

. ” Ceres Gulf , Inc. , 683 F.3d at 228 (citation s omitted). Moreover , the ALJ was within his discretion
to lend greater weight to the opinion s of Courville’s treating physicians

 who

are familiar with his injuries, treatment, and responses

 than the opinions of his non
- treating phys ician s

. See Carry v. Heckler , 750 F.2d 479, 484 (5th Cir. 1985); see also Newton v. Apfel , 209 F.3d 448, 455 (5th Cir

. 2000) (citations omitted) (“ [O] pinion of the treating physician who is familiar with the claimant ’ s impairments, treatments and responses, should be accorded great weight in determining disability.”). It has now been over eight years since Courville suffered a work

- related injury during his employment with Petron

. Courville’s first treating physician ’s recommendation for surgery has been pending for over six years

now

. As recently as 2013, Courville’s second treating physician agreed with the recommend ation of surgical intervention. To date, Courville has been evaluated by at least seven different physicians and has undergone ye ars of alternative treatments to no avail

. In light of these facts and considering the record evidence as a whole, we see no error in the ALJ’s finding that surgical intervention i s both reasonable and necessary. See Amer a da Hess Corp. , 543 F.3d at 761 (citing 33 U.S.C. § 907)

. Accordingly, we hold that the BRB properly affirmed the ALJ’s D ecision and O rder which was supported by substantial evidence in the record and Case: 14-60707 Document: 00513186141 Page: 7 Date Filed: 09/09/2015No. 14

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8 consistent with the law

. See Coastal Prod. Servs. Inc. , 555 F.3d at 430 (citation omitted)

. I V . Conclusion For the for e going reasons, the petition for review of the decision and order of the Benefits Review Board is DENIED. Case: 14-60707 Document: 00513186141 Page: 8 Date Filed: 09/09/2015