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 under 

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 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.

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2015

Lyle W. Cayce

Clerk

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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, we deny 

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 reviewed an MRI of Courville’s thoracic spine and 

recommended physical therapy but did not recommend surgical 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. Cobb referred Courville to Dr. Steven 

Staires, a pain management specialist. Dr. Staires performed 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 alternative treatments, none 

of which improved Courville’s condition. Consequently, in January 2009, Dr. 

Cobb recommended surgery1 and requested Petron’s authorization.

Following Dr. Cobb’s recommendation of surgery, Petron sought 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. 

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2009. Dr. Lindemann reviewed the medical records from Dr. Staires’s office 

and the MRI from 2007 and concluded that the alternative conservative 

therapy undergone by Courville 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 reviewed 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 surgical 

candidate” becauseas he later 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 regarding surgical intervention 

and sought to gather records demonstrating the ineffectiveness of Courville’s 

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physical therapy, pain management, and other alternative treatments to 

“submit for [authorization of] surgical intervention.”

A formal hearing was held before 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 the 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, while 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, he found

that 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 establishes 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 treatment 

recommended by Dr. Sledge,2 were reasonable and necessary.

 

2 Dr. Sledge also recommended an epidural steroid injection to assist him with 

identifying and isolating the source of the pain, which would ultimately help limit the scope 

of the surgery.

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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 decision is limited in scope to considering 

errors of law, and making certain that the BRB adhered to its statutory 

standard of review of factual determinations, 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 430 (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. 2012) (citations

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

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(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.” Amerada 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 workrelated condition.” Id. at 762. 

Petitioners assert 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 substantial 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 Petronagreed and concluded that 

“Courville will more likely than not require surgical intervention” and referred

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 Lindemann 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).

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Additionally, the physicians recommending surgery only did so after 

attempting numerous alternative methods of treatment, none of which proved 

successful. 

While it 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 (citations omitted). Moreover, the ALJ was within his discretion 

to lend greater weight to the opinions of Courville’s treating physicianswho 

are familiar with his injuries, treatment, and responsesthan the opinions of 

his non-treating physicians. 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 recommendation of surgical intervention. To date, Courville has been 

evaluated by at least seven different physicians and has undergone years 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 is both reasonable and necessary. See Amerada Hess Corp., 543 

F.3d at 761 (citing 33 U.S.C. § 907).

Accordingly, we hold that the BRB properly affirmed the ALJ’s Decision 

and Order which was supported by substantial evidence in the record and 

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consistent with the law. See Coastal Prod. Servs. Inc., 555 F.3d at 430 (citation 

omitted).

IV. Conclusion

For the foregoing reasons, the petition for review of the decision and 

order of the Benefits Review Board is DENIED.

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