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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60064

Summary Calendar

FRIEDE-GOLDMAN HALTER INCORPORATED, c/o Texas Property and

Casualty Insurance Guaranty Association; RELIANCE NATIONAL

INDEMNITY COMPANY, c/o Texas Property and Casualty Insurance Guaranty

Association

Petitioners

v.

JORGE A ESCARENO; DIRECTOR, OFFICE OF WORKER'S

COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR

Respondents

Petition for Review from the Benefits Review Board, 

U.S. Department of Labor

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Petitioner Texas Property Casualty Insurance Guaranty Association

(TPCIGA) seeks a review of an order of the Benefits Review Board (BRB).

TPCIGA challenges the BRB’s award of disability benefits, attorney’s fees, and

interest under the Longshore and Harbor Workers’ Compensation Act (LHWCA),

33 U.S.C. § 901 et seq. TPCIGA contends that (1) it was not liable under state

United States Court of Appeals

Fifth Circuit

F I L E D

May 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-60064

2

law for penalties, attorney’s fees, and interest; (2) it was not liable for attorney’s

fees because it had accepted the recommendations of the informal conference;

and (3) the agency’s factual findings in respect to causation and disability were

not based on substantial evidence. Finding these arguments unpersuasive, the

petition for review is DENIED.

I. Background

TPCIGA is a state-created association which pays claims for insolvent

insurers. Claimant Escareno was injured while working for Friede-Goldman.

While Escareno’s claim was pending, both Friede-Goldman and its insurance

carrier, Reliance, became insolvent. Accordingly, TPCIGA became the insurer

and the sole respondent that defended against Escareno’s claims before the

agency.

On March 17, 2000, Escareno was struck on the right side of his head and

shoulder by a metal frame weighing approximately 350 pounds during the

course of his employment. He was subsequently treated for headaches, dizziness,

and depression. He sought ongoing disability and medical benefits under the

LHWCA. The case was presented to an administrative law judge (ALJ). 

The ALJ concluded that Escareno presented a prima facie showing that

his injury was compensable under the LHWCA. Based on a review of the record

as a whole, the ALJ concluded that the claimant established a causal

relationship between his employment and his headaches, dizziness, and

depression. Accordingly, the ALJ awarded the claimant temporary total

disability compensation from March 18, 2000 through April 23, 2000, partial

disability compensation from April 24, 2000 through May 17, 2000, and

temporary total disability from May 18, 2000 and continuing. The ALJ also
No. 08-60064

3

awarded Escareno medical expenses and interest. Initially, only Reliance and

Friede-Goldman were held liable; however, because they became insolvent

during the proceedings, Escareno moved for reconsideration to hold TPCIGA

liable. In ruling on the motion for reconsideration, the ALJ concluded that

TPCIGA would be liable for all interest, penalties, and attorney’s fees related to

the case. After the ALJ issued its decision on the motion for reconsideration,

Escareno filed an application for attorney’s fees and TPCIGA filed a response.

On March 20, 2007, before the ALJ reached any decision in respect to attorney’s

fees, TPCIGA filed a notice of appeal to the BRB in respect to the ALJ’s award

of benefits and its declaration on reconsideration that TPCIGA is liable. On June

19, 2007, the ALJ awarded Escareno attorney’s fees. In an unpublished decision,

on December 17, 2007, the BRB affirmed the ALJ’s decision awarding benefits

and holding TPCIGA liable but declined to consider the ALJ’s decision as to

attorney’s fees because it was not part of the notice of appeal. 

TPCIGA now timely petitions this court for a review of the BRB’s

December 17, 2007 decision.

II. TPCIGA’s Designation as a Carrier

TPCIGA, for the first time in this petition, contests that it is a LHWCA

carrier and challenges subject-matter jurisdiction. As in a similar case involving

TPCIGA, Levingston Ship Bldg. Co. v. Pelaez, Case No. 07-60616, 2009 WL

577736, at *2 (5th Cir. Mar. 6, 2009) (unpublished), here, “[b]efore the ALJ,

TPCIGA repeatedly referred to itself as Levingston’s carrier. The ALJ similarly

referred to TPCIGA in that way. And, although TPCIGA referred to itself as

Levingston’s ‘insurer’ before the BRB, it did not contest its carrier designation.”

For the same reasons as in Levingston, “[h]aving repeatedly referred to itself as
No. 08-60064

4

the carrier and not contested that designation before the BRB, TPCIGA is

estopped from contesting that designation now.” Id. As in Levingston, “[t]o the

extent TPCIGA’s contention is properly read as a challenge to the DOL’s

jurisdiction -- rather than merely a repetition of its precluded challenge to

having been designated a carrier -- we reject it. The DOL indisputably has

jurisdiction under the LHWCA” and “TPCIGA is liable under the LHWCA for

penalties, attorney's fees, and interest.” Id. at *2-*3. 

III. Attorney’s Fees

The BRB did not address TPCIGA’s argument that it is not liable for

attorney’s fees because it had accepted the agency’s recommendation after the

informal conference. In the only order currently before us for review, the BRB

declined to review this issue because the “employer has not properly appealed

the administrative law judge’s award of a fee.” In its petition, TPCIGA fails to

identify any errors in BRB’s refusal to address this issue on procedural grounds,

but, instead, challenges the merits of the underlying fee award. Accordingly,

TPCIGA has failed to properly and timely exhaust its administrative remedies

as to the award of attorney’s fees by failing to properly abide by the BRB’s

procedure. We decline to address this issue. See Cox v. Benefits Review Bd., 791

F.2d 445, 447 (6th Cir. 1986); Hix v. Director, Office of Workers' Compensation

Programs, 824 F.2d 526, 527-28 (6th Cir. 1987); Duncanson-Harrelson Co. v.

Director, Office of Workers' Compensation Programs, 644 F.2d 827, 832 (9th Cir.

1981) (declining to review issues not properly presented to the BRB); see also

Board of Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068, 1072

(5th Cir. 1969) (“The general rule of appellate review from decisions of an

administrative agency is ‘that courts should not topple over administrative
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5

decisions unless the administrative body not only has erred but has erred

against objection made at the time appropriate under its practice.’” (quoting

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)); Public

Citizen, Inc. v. U.S. E.P.A., 343 F.3d 449, 461 (5th Cir. 2003) (“Absent

exceptional circumstances, a party cannot judicially challenge agency action on

grounds not presented to the agency at the appropriate time during the

administrative proceeding.”).

IV. Causation and Extent of Injury

“This court . . . reviews decisions by the BRB to determine whether it has

adhered to its proper scope of review -- i.e., whether the ALJ's findings of fact are

supported by substantial evidence and are consistent with the law.” Gulf Best

Elec., Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004). In respect to causation and

disability, TPCIGA is requesting this court to overturn the ALJ’s credibility

determination because the ALJ relied on the claimant’s expert testimony rather

than TPCIGA’s expert testimony. “An ALJ is a factfinder and is entitled to

consider all credibility inferences. He can accept any part of an expert's

testimony; he may reject it completely.” Ortco Contractors, Inc. v. Charpentier,

332 F.3d 283, 292 (5th Cir. 2003) (citation and quotation marks omitted). The

agency’s determination is supported by expert testimony and we have no basis

to overturn its findings as to causation and the extent of injury because these

factual findings are based on substantial evidence. 

For the foregoing reasons, we DENY the petition.