* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60727

Summary Calendar

_____________________

SUSAN MILLER, widow of James Michael

Miller; JAMES MICHAEL MILLER, II,

minor child; JAMIE MICHELLE MILLER,

minor child; NANCY JO MILLER, minor

child,

Petitioners,

versus

LAKE ARTHUR SHIPYARD; LIBERTY MUTUAL

INSURANCE COMPANY; DIRECTOR, OFFICE OF

WORKERS’S COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

Respondents.

_________________________________________________________________

Petition For Review of an Order

of the Benefits Review Board

_________________________________________________________________ (93-1956)

May 21, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM: *

Petitioners Susan Miller, widow of James Michael Miller, and

Mr. Miller’s three minor children, James Michael Miller, II, Jamie

Michelle Miller, and Nancy Jo Miller appeal the Benefits Review

Board’s (“BRB”) affirman ce of the Administrative Law Judge’s1 This amount was later determined to be an overpayment, which

the ALJ permitted Liberty Mutual to utilize as a set-off against

any liability determined in favor of the Millers.

2 (“ALJ”) decision denying their claims under the Longshoremen and

Harbor Worker’s Compensation Act (“LHWCA” ), 33 U.S.C. §§ 901, et

seq. Finding no error, we affirm.

I

James Miller fell and injured his back on October 15, 1980,

while employed as a painter at Lake Arthur Shipyards. He

immediately began receiving weekly LHWCA benefits in the amount of

$300 per week, which the respondent i nitially calculated from an

average weekly wage of $450 per week. 1 Mr. Miller underwent five

back surgeries between April 1981 and March 1987, and was

hospitalized on numerous occasions due to severe back pain and

severe hypertension. Liberty Mutual, Lake Arthur Shipyards’s

insurer, paid for eac h operation and hospitalization, but later

recalculated and reduced Mr. Miller’s LHWCA payments to $160.93 per

week on July 28, 1983. It maintained that payment schedule,

without annual step increases, until Mr. Miller’s death on May 20,

1989, at which time Liberty Mutual terminated all benefits.

II

The Millers filed claims for death bene fits and increased

disability compensation under the LHWCA. An ALJ held a formal

hearing and concluded that the respondents correctly determined Mr.2 Public Law 104-134 provides that appeals to the BRB that have

been pending for more than one year shall be considered affirmed by

the Board if not acted upon before September 12, 1996. S ee Omnibus

Appropriations for Fiscal Year 1996, Pub.L. No. 104-134, § 101(d),

110 Stat. 1321-219 (enacted 1996).

3 Miller’s compensation rate of $160.93 under 33 U.S.C. § 910(c).

The ALJ further determined that Mr. Miller was permanently totally

disabled as of May 14, 1985, and thus entitled to annual step

increases in his compensation rate after that date, but that the

respondents could offset their liability for the increases against

their prio r overpayments. The ALJ also held that none of Mr.

Miller’s later falls and injuries were caused by the October 1980

work-related fall and subsequent back injury. Furthermore, Mr.

M iller’s irresponsible physical conduct and a 1985 injury wer e

determined to constitute intervening causes of Mr. Miller’s

ultimate total disability. Thus, the ALJ held that the respondents

were di scharged from any liability for medical benefits or

disability compensat i on arising from the October 1985 injury.

Finally, the ALJ determined that the petitioners were not due death

benefits because any causal relationship between the October 1980

work-related injury and Mr. Miller’s death in 1989 of a heart

attack was too tenuous to support such a finding of liability. The

B RB affirmed the ALJ’s decision pursuant to the provisions of

Public Law 104-134. 2 The petitioners now appeal.

III3 Since the BRB actually issued no written findings of fact or

conclusions of law, see sup ra note 2, our references shall be to

the written opinion issued by the ALJ.

4 W e review a decision of the BRB under the same standard it

employs to review a decision of the ALJ 3 : whether the decision

contains any errors of law and if the factual findings are

supported by substantial evidence. New Thoughts Finishing Co. v.

Chilton

, 118 F.3d 1028, 1030 (5th Cir. 1997); Mendoza v. Marine

Personnel Co.

, 46 F.3d 498, 500 (5th Cir. 1995). “Substantial

evidence is evi dence that provides ‘a substantial basis of fact

from which the fact in issue can be reasonably inferred

. . . more

than a scintilla . . . more than create a suspicion . . . such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” A vondale Indus., Inc. v. Director, Office

of Workers’ Compensation Programs

, 977 F.2d 186, 189 (5th Cir.

1992) (quoting cases). This evidentiary standard is less exacting

than the preponderance of the evidence standard. C hilton

, 118 F.3d

at 1030 (citing Avondale , 977 F.2d at 189).

Moreover, as th e fact-finder, the ALJ may consider all

credibility infer e nces and his “selection among inferences is

conclusive if supported by the evidence and the law.” M endoza

, 46

F.3d at 500; Chilton

, 118 F.3d at 1030 (noting ALJ’s decision need

not constitute sole inference that may be drawn from facts). We

may not reweigh the evidence or substitute our judgment for that of5

the ALJ. S GS Control Servs. v. Director, Office of Worker’s

Compensation Programs

, 86 F.3d 438, 440 (5th Cir. 1996). Finally,

as is directly pertinent to one issue in this case, the ALJ may

accept any part of an expert’s testimony or reject it entirely.

Mendoza , 46 F.3d at 501.

IV

A

The petitioners complain that t he ALJ erred in his

calculations of Miller’s average weekly wage. The ALJ utilized the

formula provided in 33 U.S.C. § 910(c) to uphold the respondents’

reduction of weekly benefits from $300 to $160.93. The ALJ did so

after discounting the testimony of the petitioners’ rehabilitation

specialist, Mr. Glenn M. Hebert, and concluding that Mr. Miller’s

W-2 form was the only credible evidence of income. The petitioners

contend that § 910(b) sets out the more proper standard. Section

910 provides in relevant part:

Except as otherwise provided in this chapter, the

average weekly wage of the injured employee at the time

of the injury shall be taken as the basis upon which to

compute compensation and shall be determined as follows:

(b) If the injured employee shall not have worked in

such employment during substantially the whole of such

year, his average annual earnings, if a six-day worker,

shall consist of three hundred times the averag e daily

wage or salary, and, if a five-day worker, two hundred

and sixty times the average daily wage or salary, which

an employee of the same class working substantially the

whole of such immediately preceding year in the same or

in similar employment in the same or a neighboring place6

shall have earned in such employment during the days when

so employed.

(c) If either of the foregoing methods of arriving

at the average annual earning s of the injured employee

cannot reasonably and fairly be applied, such a verage

annual earnings shall be su ch sum as, having regard to

the previous ear nings of the injured employee in the

employment in which he was working at the time of the

injury, and of o ther employees of the same or most

s imilar class working in the same or most sim ilar

employment in the same or neighboring locality, or other

employment of such employee, including the reasonable

value of the services of the employee if engaged in selfemployment, shall reasonably represent the annual earning

capacity of the injured employee.

33 U.S.C. § 910.

T he petitioners contend that the evidence they submit ted in

the hearing before the ALJ allows the use of subsection 910(b) for

the calculation of Mr. Miller’s average earnings and that Fifth

Circuit law, as set out in Newport Shipbuilding & Repair, Inc. v.

Roundtree

, permits the use of 910(c) only when neither (a) nor (b)

may be applied fairly and reasonably. 698 F.2d 743 (5th Cir.

1983). Glenn M. Hebert, accepted as an expert witness for the

petitioners, testified as to the reasonable average weekly wage of

a shipyard spray painter in southern Louisiana for 1979 through

1981. The petitioners submit that the ALJ’s reliance on Mr.

Miller’s one-week paycheck under the formula set out in § 910(c)

was error in the light of this expert testimony.

The parties agree that subsection (a), which relies upon the

employee’s wages during the prior year, is inapplicable because Mr.7

Miller was not employed as a shipyard spray painter “during

substantially the whole of the year immediately preceding his

injury.” 33 U.S.C. § 910(a). Subsection (b) bases its method of

calculation upon the prior year’s wages of coworkers who performed

the same or similar work. Subsection (c), in contrast with (a) and

(b), looks not to the actual prior wages, but to the employee’s

earnings potential at the time of injury. Roundtree , 698 F.2d at

745.

We have interpreted the statutory framework of § 910 of the

LHWCA to indicate a congressional intent to favor as a method of

calculating an employee’s average weekly wage that formula set out

in (a) over that in (b), (b) over (c), and (c) to be utilized as a

“catch-all” when neither (a) nor (b) may be “reasonably and fairly”

applied. S GS Control Servs. v. Direc tor, Office of Worker’s

Compensation Programs

, 86 F.3d 438, 441 (5th Cir. 1996); E mpire

United Stevedores v. Gatlin

, 936 F.2d 819, 821 (5th Cir. 1991);

Roundtree

, 698 F.2d at 748-49. Thus, we have deemed subsection (c)

appropriate when the employee’s work is seasonal or otherwise

intermittent and when “‘otherwise harsh results’ would follow were

an employee’s wages invariably calculated simply by looking at the

previous year’s earnings.” G atlin

, 936 F.2d at 822; Roundtree

, 698

F.2d at 750-51. We have also noted approvingly the use of

subsection (c) when the proper application of subsections (a) and8

(b) is stymied by the presentation of insufficient evidence at the

hearing. Roundtree , 698 F.2d at 751.

The ALJ determined that the petitioners failed to pre sent

sufficiently concrete evidence to permit the application of (a) or

(b). As noted earlier, subsection (b) requires proof of the

average daily wag e of an employee “of the same class” who worked

substantially the entire immediately preceding year “in the same or

in similar employ ment in the same or a neighboring place.” 33

U.S.C. § 910(c). The ALJ discredited Hebert’s testimony as “too

vague, too speculative, and too lacking in specificity an d other

indicia of reliability to provide either a reliable basis for

[those] basic and critical premises or to provide the requisite

evidentiary concreteness.” This determination by the ALJ was not

error.

Hebert based his testimony--that $450 per week was the

reasonable average weekly wage for shipyard spray painters in 1979

and 1980--on telephone surveys that he conducted of shipyards in

southern Louisiana. He testified that he telephoned six specific

shipyards in Louisiana and Mississippi, spoke with different

individuals in the shipyards’ personnel offices, and inquired of

that person’s present recollection of industry conditions in 1979

and 1980. Some of the individuals had been employed in the

personnel offices in 1980 a nd others had not. He also testified4 Ev idence of even one worker’s pay records would have

fulfilled the statutory requirement. Roundtree , 698 F.2d at 750.

9 that he obtained certain empl oyment data from the Baton Rouge

Research and Development Section of the Louisiana State Employment

Security office. Hebert failed to consider Miller’s actual wages

and hours wh en employed by the Lake Arthur Shipyard, nor did he

review any actual earnings records. 4 Furthermore, the ALJ noted

that he did not reference the actual wage records of any specific

shipyard employee whose employment might have been comparable to

Miller’s.

Hebert’s research and testimony is insufficient to demonstrate

the specifics required under subsection (b). There is no proof

that the data gathered by Hebert pe rtains to an employee (1) “of

the same class” as Miller, (2) who worked “substantially the whole

of such immediately preceding year” (3) “in the same or in similar

employment” (4) “in the same or a neighboring place.” The ALJ

properly discounted Hebert’s testimony as providing an insufficient

basis for application of subsection (b). Based on the evidence

that was before him, the ALJ correctly determined that subsection

( c ) provided the appropriate formula for calculating Miller’s

annual wages.

B10

T he petitioners contend, in the alternative, that Hebert’s

testimony concerning wages of shipyard sp rayers in 1979 and 1980

should be employed under the calculation set out in (c). They

maintain that Hebert’s figures, integrated into subsection (c )’s

formula, also produce an annual wage of $450 per week.

Subsection (c) focuses on the injured employee’s earning

capacity at the time he sustained his injury. “[T]he ALJ must make

a fair and accurate assessment of the injured employee’s earning

capacity--the amount that the employee would have the potential and

opportunity of earning absent the injury.” G atlin

, 936 F.2d at

823. The ALJ may look to three sources of information in

determining the employee’s potential for earnings: (1) the injured

employee’s previous earnings in the employment he held at the time

of injury; (2) previous earnings of other employees in the “same or

most similar c lass” who enjoyed the “same or most similar

employmen t in the same or neighboring locality”; and (3) the

inju red employee’s previous earnings from other employment. 33

U.S.C. § 910(c). Unlike subsections (a) and (b), subsection (c)

does not premise the average weekly wage calculation solely on the

actual earnings of the employee or of other similarly situated

employees, but merely provides that such evidence is one of several

possible factors to be considered. Gatlin , 936 F.2d at 823.11

The ALJ noted these considerations, but ultimately determined

that Mr. Miller’s record of employment for eight days with the

shipyard was the only credible evidence of earnings in the case.

The petitioners presented no substantial evidence of Mr. Miller’s

earnings (or willingness to work) prior to his employment by the

shipyard, nor any evidence of what might have prevented him from

working. The ALJ had previously discounted Hebert’s testimony as

too speculative and we again find no error in this decision. The

only credible evidence of earnings before the ALJ consisted of Mr.

Miller’s W-2 forms memorializing his eight days of employment with

Lake Arthur Shipyard. We deem this proof sufficient to support the

ALJ’s determination of Mr. Miller’s average weekly wage under the

formula prescribed in subsection (c). Thus, the determination that

Miller’s average weekly wage was $241.41, resulting in a temporary

total disabilit y compensation rate of $160.93, is supported by

substantial evidence.

C

i

The petitioners maintain that the ALJ correctly deter mined

that Mr. Miller was totally permanently disabled as of May 14,

1985, and that this classification entitled him to annual step5 Sectio n 10(f) provides for annual step increases in the

amount of disability compensation upon proof of perma nent total

disability. 33 U.S.C. § 910(f). The respondents never classified

Mr. Miller as permanently disable d and thus never increased his

rate of compensation.

6 We have already held that the ALJ ’s determination that Mr.

Miller’s average weekly wage was $160.9 3 is supported by

substantial evidence and we decline to readdress this issue.

7 Where warranted, the LHWCA provides f or annual increases

effective October 1 of any particular year. 33 U.S.C. § 910(f)(1).

8 From the record before this court, it appears that the

respondents did not petition this court for review. The governing

statutory provision provides that

Any person adversely affected or aggrieved by a final

order of the Board may obtain a review of that order in

t he United States court of appeals for the circ uit in

12 increases from that date until his death in 1989. 5 They assert,

however, that the increases should be calculated from a beginning

benefits rate of $300 per week. The ALJ determined that Mr. Miller

was entitled to compensation for permanent total disability

resulting from his 1980 work-related injury at the rate of $160.93 6

per week with annual step increases beginning October 1985 through

October 1988. 7 The ALJ further held, however, that the respondents

could offset their liability for the annual increases against their

initial overpayments from 1980 until 1983.

ii

The respondents c hallenge the ALJ’s determination that Mr.

Miller suffered a compensable total permanent disability because of

a work-related injury. 8 The ALJ’s determinations are supported bywhich the injury occurred, by filing in such court within

sixty days following the issuance of such Board order a

written petition pr aying that the order be modified or

set aside.

33 U.S.C. § 921(c); see also 20 C.F.R. § 802.410(a) (“Wi thin 60

days after a decision by the Board has been filed

. . ., any party

adversely affected or aggrieved by such decision may file a

petition for review with the appropriate U.S. Court of Appeals

. . . .”). The filing of a petition by an appropriate party provides

this court with jurisdiction over the proceeding and we “have the

power to give a decree affirming, modifying, or setting aside, in

whole or in part, the order of the Board and enforcing same to the

extent that such order is affirmed or modified.” 33 U.S.C. §

921(c).

The question facing this court is whether we have jurisdiction

under the LHWCA to grant relief to a party that did not petition

for review. The respondents were adversely affected by the ALJ’s

determination that Mr. Miller was entitled to step increases, but

they failed to follow the process statutorily outlined for them to

receive relief--they did not file a petition. This failure appears

to be fatal to their request for relief from the ALJ’s

determination.

Not only does the language of the Code and the regulations

quoted supra support this interpretation, but the federal rules of

appellate procedure reinforce our view. Rule 15 sets out the

procedure for gaining review of an agency order. Fed.R.App.P. 15;

see Ingalls Shipbuilding v. Director, OWCP

, 117 S.Ct. 796, 806

(1997) (“Rule 15(a) clearly applies to appea ls from the Benefits

Review Board

. . . .”). The rule provides that a petition must be

filed with the clerk of the appropriate court of appeals, that the

petition must name each party seeking review

, that the petition

must designate the respondent “and the order or part thereof to be

reviewed.” Fed.R.App.P. 15(a). Based on the language of the law

before us, and on the analo gous situation when a party fails to

file a notice of appeal, it appears that we are without

jurisdiction to grant relief to the non-petitioning respondents.

See Fed.R.App.P. 4; Marts v. Hines

, 117 F.3d 1504, 1506-19 (5th

Cir. 1997) (Garwood, J., dissenting).

Nevertheless, as the parties did not brief this issue and our

own research unearthed no controlling precedent, we may pretermit

the jurisdictional issue because the respondents’ challenge is

meritless, as discussed infra

. U nited States v. McGill

, 74 F.3d

64, 66 (5th Cir. 1996); United States v. Weathersby , 958 F.2d 65,

1366 (5th Cir. 1992) (citing Norton v. Mathews

, 427 U.S. 524, 532, 96

S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976) (“‘In the past, we

similarly have re served difficult questions of our jurisdiction

when the case alternatively could be resolved on the merits in

favor of the same party.’”), quoted in Texas Employers’ Ins. Ass’n

v. Jackson

, 862 F.2d 491, 497 n.8 (5th Cir. 1988) (en banc), cert.

denied

, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989));

Pierce v. Winograd

, 757 F.2d 714, 716 (5th Cir. 1985)

(pretermitting mootness issue); Koehring Co. V. Hyde Constr. Co.

, 324 F.2d 2 95, 296 (5th Cir. 1963) (pretermitting jurisdictional

question).

14 substantial evidence and the respondents are entitled to no relief

on the merits. The ALJ concluded that Mr. Miller reached maximum

medical improvement after his 1980 work-related injury on May 14,

1985. Two physicians determined that Mr. Miller suffered a 25%

impairment to his whole body as of 1985, and this evidence was not

contradicted by the respondents. Dr. Phillips, an orthopedic

surgeon, noted Mr. Miller’s 25% impairment after an examination in

April 1984 and further determined that Mr. Miller would not be able

to return to his prior employment. Dr. Gunderson, an orthopedic

surgeon and Mr. Miller’s treating physician, posited that Mr.

Miller reached maximum medical improvement as of May 14, 1985, and

similarly assigned a 25% disability to Mr . Miller’s whole body.

Substantial evidence thus supports the ALJ’s determination that Mr.

M iller reached maximum medical improvement on May 14, 1985, and

that he suffered under a 25% permanent impairment to his whole

body.15

The ALJ further held that the permanent impairmen t resulted

from Mr. Miller’s 1980 work-re lated injury and was thus

compensable. The LHWCA provides for compensation to be paid to an

employee who suffers an accidental injury or death that arises out

of and in the course of employment. 33 U.S.C. §§ 902(2), 903. The

test is one of causation in fact--whether the employment caused the

injury. S hell Offshore, Inc. v. Director, Office of Wo rker’s

Compensation Programs

, 122 F.3d 312, 316 (5th Cir. 1997); Bludworth

Shipyard, Inc. v. Lira, et al. , 700 F.2d 1046, 1049 (5th Cir.

1983). Proximate cause, as that concept is employed in tort law,

is generally not applicable in the LHWCA setting. S hell Offshore

,

122 F.3d at 316; Bludworth Shipyard , 700 F.2d at 1050.

Thi s is because proximate cause analysis in a typical

tort case focuses on the question whether a party, in the

conduct of his everyday affairs, should be held legally

responsible for remote consequences of his acts . The

inqui ry under the LHWCA is much narrower. The court’s

sole function is to determine whether the injury

com plained of was one “arising out of” the employment.

On ce causation in fact is established, with only a few

exceptions, the court’s function is at an end.

Bludworth Shipyard , 700 F.2d at 1050.

The allegation of a supervening, indepe ndent cause of the

claimed injury is one such exception. S hell Offshore

, 122 F.3d at

316; Bludworth Shipyard

, 700 F.2d at 1050. We have previously

noted that this Circuit has articulated different definitions of

what may constitute a superveni ng, independent cause. S hell16

Offshore

, 122 F.3d at 316. One standard requires an influence

originating entirely outside of employment that effectively

overpowers and nullifies the initial injury. I d. (citing Voris v.

Texas Employers Ins. Ass’n

, 190 F.2d 929, 934 (5th Cir. 1951)).

The second standard allows for severance of causation if the

subsequent event merely “worsens” the initial injury. I d. (citing

Mississippi Coast Marine v. Bosarge , 637 F.2d 994, 1000 (5th Cir.

1981)).

The A LJ determined that no supervening, independent cause

contributed to Mr. Miller’s impairment before May 14, 1985, and

that Mr. Miller’s 25% permanent disability therefore constituted a

compensable injury. This finding is supported by substantial

evidence under either standard. Mr. Miller’s initial back injury

focused at the L4-5 and L5-S1 levels. Although Mr. Miller suffered

subsequent injuries aft er the October 1980 injury and before

May 14, 1985, none disrupted the causation chain or expanded his

i nitial injury outside the originally affected back are a

.

Substantial evidence su pports the ALJ’s determination that Mr.

Miller was permanently partially disabled as of May 14, 1985, and

that the disability arose out o f and in the course of his

employment.

Due to the permanent partial disability, the ALJ further

concluded that Mr. Miller could not return to his prior employment.9 After May 1985, Mr. Miller suf fered subsequent injuries and

endured several operations that ultimately left him physically

17 This finding, supported by substantial evidence, made a prima facie

case for legal total disability. S GS Con trol Servs. , 86 F.3d at

444; Louisiana Ins. Guar. Ass’n v. Abbott , 40 F.3d 122, 126 (5th

Cir. 1994) (“Whereas maximum medical improvement is the indication

of permanent versus tempor a ry disability, the availability of

suitable alternative employment distinguishes partial from total

disability.”; citing 33 U.S.C. §902(10)). In order to lessen their

compensation liability, the burden then shifted to the respondents

to demonstrate that Mr. Miller could have perfo rmed suitable

alternative work or that such emp loyment was available. S GS

Control Servs.

, 86 F.3d at 444 (noting employer must establish

emplo yee is “capable of performing . . . other realistically

available jobs”). They presented no such evidence. Thus, Mr.

Miller, although only medically permanently partially disabled as

of May 14, 1985, became legally entitled to t otal disability

b enefits as of that date. I d. ; Abbott

, 40 F.3d at 126; see also

Phillips v. Marine Concrete Structures, Inc. , 895 F.2d 1033, 1035

(5th Cir. 1990) (en banc) (noting LHWCA does not provide for 10(f)

adjustments for period of temporary total disability). The ALJ’s

decision awarding the petitioners permanent total disability

benefits as of May 14, 1985, is supported by substantial evidence. 9permanent ly totally disabled as of July 17, 1987. Specifically,

the ALJ determined that Mr. Miller injured his back in October 1985

at the L3-4 level, that this injury was not work-related, and that

it c onstituted a supervening cause of Mr. Miller’s ultimate

permane nt total disability. Mr. Miller exacerbated the October

1985 injury with intentional misconduct such as lifting a washing

machine, a 35-pound amplifier, and a refrigerator. The ALJ held

that t his misconduct also acted as supervening causes. S hell

Offshore

, 122 F.3d at 316. The ALJ thus determined that the

respondents were not liable for compen sation related to the 1985

injury at the L3-4 level. This finding is supported by substantial

evidence.

18 D

The petitioners’ final argument is that Mr. Miller’s 1980

work-related injury had a suffic ient causal relationship to his

death nine years later to warrant payment of death benefits. The

cause of death was hypertensive and atherosclerotic cardiovascular

disease. The petitioners’ argument proceeds in the following

manner: Miller suffered a work injury that aggravated his pain;

the pain increased his high blood pressure; the high blood pressure

aggravated his pre-existing atherosclerotic disease; the

aggravation of his disease in turn hastened his death.

T he LHWCA provides that compensation be paid for “death

arising out of and in the course of employment.” 33 U.S.C.

§ 902(2). Some of our older cases have held that an injury that

merely hastens death may be regarded as actually causing it.

Calbeck v. Strachan Shipping Co.

, 306 F.2d 693, 695 (5th Cir.

1962); Southern Stevedor ing Co. v. Henderson , 175 F.2d 863, 86619

(5th Cir. 1949) (“since to hasten one’s death is to cause it”).

Thus, it appears that the petitioners would be entitled to death

benefits if Mr. Miller’s 1980 work-related in jury hastened his

death.

The ALJ found no such causal relation and we must determine

whether that finding is supported by substantial evidence. The ALJ

relied to a significant degree on the observations of Dr. Lawrence

O’Meallie, a board-certified internist and cardiac specialist. Dr.

O’Meallie, the only cardiologist who rendered an opinion in this

case, stated that there was no causal relationship between Mr.

Miller’s exacerbated hypertension and his death . The heart

specialist posited that Mr. Miller’s underlying coronary disease--

atherosclerosis--cau sed his death. He stated that it is “the

u nderlying disease process [of hypertension] that’s causing the

acceleration of the coronary disease, not the back that’s causing

the blood pressure that’s causing the atherosc lerosis.” He

concluded that even if Mr. Miller’s back pain did cause his blood

pressure to increase e pisodically, any evidence of a causal

relationship between those increases and Mr. Miller’s sudden death

was too speculative to warrant imposition of liability.

Dr. O’Meallie’s opinion directly contradicted those of Mr.

Miller’s treating physicians, Dr. Grovenburg and Dr. Shirley. Both

of those physicians submitt ed that Mr. Miller’s severe back pain20

increased his hypertension which, in turn, aggravated the heart

disease that eventually killed him. The ALJ noted, however, that

the record contained no evidence indicating that Mr. Miller’s

hypertension was diagnosed as medically significant between 1 980

and October 1985. As previously noted, Mr. Miller suffered an

supervening back injury in October 1985 at the L3-4 level. Dr.

Grovenburg did not treat Mr. Miller for severe labile hypertension

until 1988 and 1989--after Mr. Miller’s supervening 1985 injury and

his flagrant ph ysical misconduct. Thus, the ALJ determined that

even if Mr. Miller’s back pain was causally related to his death,

supervening incidents destroyed any causal relationship between his

1980 work-related incident and his back p ain suffered after his

nonwork-related injury of October 1985. S ee Mendoza

, 46 F.3d at

501 (“[W]here the testimony of medical experts is at issue, the ALJ

is entitled to accept any part of an expert’s testimony or reject

it completely.”).

Finally, the ALJ noted that nine years had passed between the

1980 injury to Mr. Miller’s back and his death in 1989. Based on

the evidence before him, the ALJ deemed any causal relation too

tenuous to support an award of death benefits. This finding is

supported by substantial evidence.

E21

Substantial evidence supports the ALJ’s denial of the

respondents’ request for section 8(f) relief. 33 U.S.C. § 908(f).

V

The ALJ’s determinations are supported by substantial evidence

and, for the foregoing reasons, the decision of the Benefits Review

Board is

A F F I R M E D.