### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60380 Summary Calendar

MICHAEL JAMES GOINS,
Petitioner
v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR; LAKE CHARLES STEVEDORES, INCORPORATED; PORTS INSURANCE COMPANY, INCORPORATED, Respondents

Petition for Review of an Order of the Benefits Review Board BRB No. 11-477

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Pro se petitioner Michael J a m e s G oins seeks review of an order of the Bene f its Review Board affirming an Administrative Law Judge’s D ecision and O r d e r o n Remand as to claims he brought under the Longshore and Harbo r Workers’ Compensation Act against two of his former employers, Lake Charles Stevedores, Inc., and J.J. Flanagan Stevedores. S pecifically, G o i n s appeals the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 12, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60380 Document: 00512171711 Page: 1 Date Filed: 03/12/2013No. 12-60380

Board’s o rder a s t o t h e f ollowing issues: (1) consolidation of his claims; (2) his request for attorney fees; (3) determination of his average weekly w age; (4) the suspension of his benefits because he refused to undergo a medical evaluation; (5) the finding that his p sychological condition is not w o rk-related; and (6) the finding that respondents are not liable f or further costs related to treatment for his psychological condition. Respondents cross-appeal the Board’s affirmation of the finding that Goins was permanently and totally disabled, and accordingly is entitled to permanent and total disability benefits. For the following reasons, we affirm the Board’s order in all respects. I. BACKGROUND Michael James Goins asserted claims for four separate accidents against two of his former employers—Lake Charles Stevedores, Incorporated, and J.J. Flanagan Stevedores—and their respective carriers (“Respondents”). After the first three accidents, b enefits were paid under the Longshore and Harbor Workers’ C ompensation Act (“LHWCA”), 33 U .S.C. §§ 901, et seq. , and Goins returned to work. F o ll o wing the final incident o n April 25, 2005, Goins stated that he was no longer able to work due to pain. He sought compensation under the L HWCA for injuries s ustained to his back, right shoulder, and right hip, as well as for “mental unrest,” which he claimed was due to all of the accidents. Goins’s employer brought a timely c h a l l e n ge against his April 25, 2005 claim, and all of Goins’s claims were adjudicated at a formal hearing before an Administrative Law Judge (“ALJ”) on January 20, 2 007. On May 8 , 2007, the ALJ issued a Decision and Order awar di n g Goins temporary total disability benefits for his four work-related injuries for the periods of January 17 through February 28, 2001, August 14, 2001 through December 10, 2002, July 6 through September 21, 2004, and from April 25, 2005 through July 5, 2 006. The ALJ noted that Goins resumed full-duty work afte r e a ch of the four periods he was injured without a loss o f pay or residual impairment except for the final period;

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the ALJ found that G oins’s inability to work following the final period was due solely to his non-work-related m ental impairment. Th e ALJ also found that G oin s w a s entitled to, and Respondents liable for, all reasonable medical b e n ef it s arising out of the April 25, 2 005, work-related injuries pursuant to Section 7(a) of the LHWCA, 33 U.S.C. § 904(a). Goins sought m odification of the ALJ’s Decision and Order u nder Section 22 of the LHWCA, 3 3 U.S.C. § 922. Respondents f iled a motion to compel an updated medical examination of Goins by Dr. James Pe r ry . The ALJ issued a Decision and Order on July 29, 2008 denying Goins’s request for modification and suspending payment of compensation pursuant to Section 7(d)(4) of the LHWCA, 33 U .S.C. § 90 7 ( d)(4), because o f Goins’s unreasonable r efusal to undergo an examination by Dr. Perry. Goins appealed to the Benefits Review Board (“Board”). O n Au gu s t 14, 2009, the Benefits Review Board (“Board”) rev e r s ed the ALJ’s finding that Goi n s ’ s psychological condition is not work-related, as it found that no psychiatrist gave an opinion to a reasonable degree o f medical probability that Goins’s mental condition was not caused or aggravated by his work-related injuries. The B oard also vacated the ALJ’s finding that Goins is not entitled to temporary total disability b en e f i t s as a result of his April 25, 2005 injury, and it remanded the case for further consideration of this issue. Finally, the Board vacated the ALJ’s denial of Goins’s petition for modification. On March 1 1, 2011 , f

o ll o wing a h e aring on remand, the ALJ found that G o ins’s mental and physical problems had combined to prevent hi m f r o m performing any work as o f the date of his last injury. B a sed on this finding, the ALJ awarded G oins permanent total disability benefits for the period of April 25, 2005 through July 7, 2008, and entered a continuing award of permanent total disability b enefits to begin on December 1 , 2009, b a s e d o n an average weekly wage of $ 389.70. The ALJ a l s o f ound Respondents liable for medical benefits

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related to Goins’s visits to Dr. Bernauer f or treatment for his mental condition and physical injuries, related travel expenses, and a referral to a neurologist. Acting pro se , Goins appealed the ALJ’s d e c i sion on remand, raising various issues. Respondents cross-ap p e aled. On March 21, 2012, the Board

a f f i r med the ALJ’s decision in all respects. I n doing so, it held, as a matt e r o f law, and to clarify the ALJ’s decision, that Respondents are not liable f or further treatment of Goins’s psychological condition. Again pro se , Goins seeks review of the Boa r d ’ s Decision and Order pursuant to 33 U.S.C. § 9 21(c). He asks us to reverse the Board’s affirmation of the ALJ’s order regarding (1 ) c o n s o l i dation o f his claims, (2) his request for attorney fees, (3) determination of his average w e ekly wage, (4) s u s p e nsion of benefits because of his refusal to undergo a medical evaluation, (5) the finding that his psychological condition is not work-related, and (6) t h e f in ding that R e spondents are not liable for further costs of treating his psychologi c a l condition. Respondents cross-appeal, seeking review o f the Board’s affirmation of the finding that Goins was permanently and total ly disabled and therefore entitled to permanent and total disability benefits. I I. STANDARD OF REVIEW We review a Board d ecision for l e gal errors and adheren c e t o the proper

s t a ndard of review, namely, “whether the ALJ’s findings of fact are supported by s ubstantial evidence and are consistent with the law.” Gulf Best Elec., Inc. v. Methe , 3 96 F.3d 601, 603 (5th Cir. 2004). The Board m ust uphold th e ALJ’s factual findings if th ey are rational and supported b y subs t a n t i a l evidence. 33 U.S.C. § 9 2 1(b)(3); Gulf Best , 396 F.3d at 603. Substantial evidence is “that relevant evidence—more than a scintilla but less than a p r e p onderance—that would cause a reasonable person to accept the fact finding.” Coastal Prod. Servs., Inc. v. Hudson , 555 F.3d 426, 430 (5th Cir. 2009). As the factfinder, the ALJ is exclusively e ntitled to a s s ess the weight o f the evidence and credibility of

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witnesses. Ceres Gulf, Inc. v. Dir. , OWCP, 683 F.3d 225, 2 28 (5th Cir. 2012) (citations omitted). W e r eview the B oard’s legal c onclusions de novo. Tarver v. Bo–Mac Contractors, Inc. , 384 F.3d 180, 181 (5th Cir. 2004). III. DISCUSSION A. Goins’s Claims We first consider wh e t h e r Goins adequately raised any issues in his petition for review. With limited exceptions, the Federal R u l e s o f Appellate Procedure “apply to the review or enforcement of an agency order.” Fed. R. App. P. 20; see United Gas Pipe Line C o. v. FERC, 8 24 F.2d 417, 434 (5th Cir. 1987). These rules require an appellant’s brief to contain “appellant’s contentions and the reasons for them, with citations to the authorities and p arts o f the r ecord on which the appellant r elies.” Fed. R. App. P

. 28(a)(9)(A). “Failure adequately to brief an issue on appeal constitutes waiver of that argument.” Proctor & Gamble Co. v. Amway Corp. , 376 F

. 3d 4 96, 499 n.1 (5th Cir. 2004). “Although pro se briefs are to be l ib e r a l ly construed, pro se litigants have no general immunity from the rule that issues and arguments not b riefed o n appeal are abandoned.” Geiger v. Jowers , 404 F.3d 371, 3 7 3 n .6 (5th C ir. 2005) (citations omitted); see also United States v. Wilkes , 20 F.3d 651, 653 (5th C i r . 1 9 9 4) (“[W]hile we construe pro se pleadings liberally, pro se litigants, like all other parties, must abide by the Federal Rules of Appellate Procedure.”). The adequate briefing standard is a low hurdle, but Goins does not clear it. H is briefing lacks record citations, citations to relevant legal autho ri t y , an intelligible application of the few authorities cited, o r d ocumentation—other than the Board’s order and a letter stating facts not in dispute—indicating the basis of his claims. When an appellant fails to provide “the reasons he deserves the requested reli e f with citation to the authorities, statutes and parts of the record relied o n,” that failure constitutes waiver. Turner v . Q u arterman , 481 F.3d 292, 295 n . 1 ( 5 t h C ir. 2007) (citation and internal quotation marks

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omitted). Accordingly, we hold that Goins’s inadequate briefing waiv e s his challenges to the Board’s order. 1 B. Respondents’ Cross-Appeal In their cross-appeal, Respond e n t s argue that the Board erroneously

a f f irmed the ALJ’s finding that Goins w as permanently and totally disabled. Specifically, R e s p o ndents contend that the ALJ erred in finding that Goins’s non-work-related mental condition combined with his physical condition to render him permanently and totally disabled under th e B o ard’s a ggravation rule. Respondents argue tha t t h e p ermanent and total disability award was neither rational nor supported by substantial evidence, and therefore should be reversed. We disagree and affirm the B oard’s order because the Board adhered to the proper standard of review and did not err as a matter of law. As the B oard acknowledged, the ALJ f ound that Goins set forth a prima facie case of total disability by showing that he is physically incapable of returning to l ongshore employment. The B o a rd further noted that the record supports the ALJ’s determination o f Goins’s disability status, a s it shows by a preponderance of the e vi dence that Goins’s physical and mental p roblems combined to prevent him from working. Respondents argue that the ALJ improperly awarded be nefits to Goins b a s e d upon its finding that his mental condition interacted with his physi c a l condition so as to render hi m totally disabled under th e B oard’s a ggravation rule. See Cairns v. Matson Terminals, Inc. , 21 B.R.B.S. 252 (1988). Ho wever, Respondents have not provided any legal authority to refute the positions,

1 H ow ever, even if w e w ere to cons id er G oins ’s claim s , they w ould f ail. G oins hasnot p ointed to, nor have w e located , legal authorities s u g g e s ting that revers al w ould be p rop er und er d e novo review

. G oins has not in any dis cernable w ay argued that the Board f ailed to adhere to its p rop er s tand ard of review

. And he has not argued , at leas t not in a w ay that w e can id entif

y, that the ALJ lack ed s ubs tantial evid ence to rend er its d ecis ion. M oreover, w e have not f

ound , ind ep end ently of G oins ’s brief ing, any bas is up on w hich the Board ’s d ecis ion
s hould be overturned w ith res p ect to his claim s on ap p eal. 6 Case: 12-60380 Document: 00512171711 Page: 6 Date Filed: 03/12/2013No. 12-60380

adopted by the ALJ and confirm e d by the Board, that e mployers take their employees as th ey find them, that Goins’s physical injuries combined with his preexisting mental condition so as to render him permanen t l y a n d totally disabled, and thus, that Goins was entitled to permanent a n d total disability benefits. See Ortco C

ontractors, I

nc. v. Charpentier , 3 32 F .3d 283, 290 & n.16 (5th Cir. 2003) (citing Strachan Shipping Co. v. Nash , 782 F.2d 5 1 3 , 5 1 7 (5th Cir. 1 986) (noting that when an employment injury w o rsens or c ombines with

a preexisting condition, the entire resultant condition is compensable)); see also Wheatley v. Adler , 407 F.2d 307, 312 (D.C. Cir. 1968) (en banc) (same). Rather, i n s u p p o rt of their argument, Respondents appear to request that w e rewei gh the evidence—including wage records and testimony—which we are not permitted to do under the standard of review. Ceres G ulf, Inc. , 683 F.3d at 228. B e c a u s e Respondents do not ground their argument o n the alleged misapplication of the aggravation rule in legal a u t h o ri t y , and because their argument ostensibly and imp e r m i s sibly asks us to reweigh the evidence, we affirm the Board’s order as to this issue. IV. CONCLUSION For the reasons stated, we AFFIRM the Board’s order in all respects.

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