UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-60002

____________________

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR,

Petitioner-Respondent,

versus

VESSEL REPAIR, INC.; ITT HARTFORD COMPANY,

Respondents-Petitioners,

versus

PEDRO T. VINA,

Respondent.

_________________________________________________________________

Petitions for Review of an Order

of the Benefits Review Board

_________________________________________________________________ February 22, 1999

Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Chiefly at issue in these challenges to a Benefits Review

Board decision involving Vessel Repair’s liability to its injured

employee, Pedro Vina, under the Longshore and Harbor Workers’

Compensation Act, and its entitlement from the LHWCA second-injury

fund administered by the Office of Worker’s Compensation Programs

(OWCP), is when Vessel Repair could have “reasonably anticipated”

that fund’s liability. Substantial evidence supports the

administrative law judge’s finding that such reasonable2

anticipation arose after the consideration of the claim by the OWCP

district director. Also at issue are whether Vina’s prior injury

was “manifest” in a medical record prior to his employment-related

injury; whether that employment-related injury caused his permanent

partial disability; and the extent of his subsequent employment

opportunity. We DENY the petitions.

I.

V ina, born in 1943, injured his neck and back in 1986; was

treated by Dr. Ramos; and was unable to work for nearly a year. In

1988, he began work for Vessel Repair, a ship repair facility in

Por t Arthur, Texas. In April 1992, while entering a barge to

perform welding work, Vina fell, re-injuring his back and neck.

Vina was examined by two orthopedic surgeons. Dr. Iceton

primarily treated Vina, seeing him several times between June 1992

and February 1993. In May 1993, Dr. Teuscher examined Vina at

Vessel Repair’s request. It was evident to both doctors that the

injury exacerbated a prior degeneration of Vina’s back and neck.

Vina did not, however, tell either doctor about the 1986 injury.

The doctors agreed that Vina had reache d maximum medical

improvement in October 1992.

At that time, October 1992, Dr. Iceton had given Vina a “light

duty slip”, allow ing him to return to work with lifting

restrictions. But, Vina was told by a Vessel Repair supervisor

that there was no work for him, and he never returned. (In March3

1994, Vina performed some work for neighbors, but stopped because

of neck and back pain.)

Vina applied for compensation under the LHWCA. Vessel Repair

did not cont est compensation for his temporary total disability

from April to October 1992. But, it controverted his entitlement

to permanent partial disability. The case was referred to the

Office of Administrative Law Judges (OALJ) in October 1993.

In June 1994, two days before the dis covery deadline and

approximately two weeks before the sch eduled hearing before the

ALJ, Vessel Repair first learned of the existence of Vina’s 1986

injury and his treatment by Dr. Ramos, who had since died. In

particular, Vessel Repair first learned of a medical report by Dr.

Ramos establishing the existence of Vina’s prior injury and preexisting condition. Accordingly, that July, Vessel Repair

presented a second-injury fund claim under LHWCA § 8(f), 33 U.S.C.

§ 908(f), to both the ALJ and the OWCP district director. The

district director denied the claim as untimely.

Earlier, when Dr. Teus cher, at Vessel Repair’s request, had

assessed the permanent injury in May 1993, he state d that “it is

difficult to accurately quantify that portion which was preexisting

and that portion which is attributable to his current injury”.

Later, however, upon viewing the 1987 x-rays taken for Dr. Ramos

after the 1986 injury, Dr. Teuscher modified his opinion. He saw

no difference between the x-rays before and after the 1992 injury,4

and therefore considered that there was no objective basis for

different employment restrictions before and after that accident.

On the other hand, Dr. Iceton testified that, while he could

not apportion causation of permanent disability between the 1992

injury and Vina’s prior condition, each was a cause; and that

knowing the details regarding the 1986 injury would not change this

assessment, because he had inferred a prior degenerative disc

disease without such information.

Dr. Teuscher was unable with medical tests to confirm Vina’s

complaints of pain. He indicated, however, that Vina may require

permanent work restrictions because of his reports of pain. Dr.

Iceton found Vina’s complaints credible and his behavior consistent

with such pain. And, Vina testifie d that he suffered much more

serious pain two years after the 1992 injury than he did before it.

Two vocational experts, Quintanilla and Kramberg, assessed

Vina’s employment prospects. Based on an interview of Vina, a

review of his medical records, and research into the job market in

the Port Arthur area, Quintanilla estimated that several sorts of

jobs would be appropriate; he identified 11 p articular jobs.

Kramberg testified, however, that all but two of those jobs were

inappropriate giv en Vina’s inability to speak, read or write

English; the lifting and gaze restrictions specified by Drs. Iceton

and Teuscher; the location of the jobs; or other factors. In fact,

Kramberg had doubts about the remaining two jobs.5

In October 1995, the ALJ ruled in favor of Vina regarding the

causation of permanent partial disability by the 1992 accident. As

for future employment, the ALJ substantially agreed with Kramberg’s

conclusion. The ALJ assessed Vina’s residual weekly earning

capacity and found Vessel Repair eligible f or § 8(f) relief,

thereby transferr ing its liability beyond the first 104 weeks of

permanent disability payments to the OWCP second-injury fund.

The Benefits Review Board (BRB) agreed, except for the

assessment of residual earning capacity (it decided that the 1992

minimum wage should have been used, without inflation adjustment).

II.

We review BRB decisions de novo

, applying the same standard as

the Board and so upholding an ALJ’s decision when in accordance

with law and supported by substantial evidence. 33 U.S.C. §

921(b)(3); e.g., New Thoughts Finishing Co. v. Chilton , 118 F.3d

1028, 1030 (5th Cir. 1997).

A.

Vessel Repair asserts, first, that Vina’s permanent disability

was not due to his 1992 injury; second, that the ALJ erred in

finding only minimum- wage employment available. Vina points to

c onflicting evidence before the ALJ supporting his position and

which the ALJ chose to credit.6 1.

In contending that the 1992 accident did not cause any portion

of Vina’s permanent disability, Vessel Repair maintains that such

disability was due solely to prior degeneration, and particularly

to the 1986 injury.

Preliminarily, we dismiss Vessel Repair’s suggestion that the

ALJ did not engage in a consideratio n of all of the medical

evidence regarding causation, or that the ALJ applied the “true

doubt rule” repudiated in Director, OWCP v. Greenwich Collieries

,

512 U.S. 267 (1994). The ALJ’s opinion summarizes exhaustively the

evidence and assesses its credibility in detail. Whether Vina’s

1992 injury caused his disability is discussed at length and with

a full consideration of all the evidence.

Pointing to the testimony of Dr. Teuscher, who, upon viewing

Dr. Ramos’ records concerning the 1986 injury, revised his earlier

agreement with Dr. Iceton on causation, Vessel Repair asserts that

Dr. Iceton substantially agreed with Dr. Teuscher, and that no

substantial evidence suggests that the 1992 injury contributed to

Vina’s disability. However, Dr. Iceton was not equivocal regarding

causation of permanen t injury: while he could not determine how

much the prior condition and the 1992 injury each contributed to

permanent disability, both were factors. Regarding Vina’s

permanent impairment, Dr. Iceton stated p lainly that “some of it

was caused by the [1992] accident”.7

And, Dr. Teuscher was less emphatic than Vess el Repair

suggests. His only unequivocal testimony on causation was that the

1992 injury was not the sole cause of Vina’s disability, which is

undisputed. The only legally relevant question is whether the 1992

injury is a cause of that disability.

Dr. Teuscher stated that, as a physician, he would place no

work restrictions on Vina as a result of the 1992 injury; but, he

then allowed that additional restrictions would be appropriate “on

a symptomatic basis”

, i.e., because of Vina’s pain. In addition,

when asked whether Vina’s symptoms of pain were caused by the 1992

injury, the doctor replied: “the issue here is that I don’t have

an explanation for his source of pain”.

Independent of the medical testimony, the ALJ also credited

Vina’s testimony in July 1994 of present pain greater than that

suffered before the 1992 injury. Dr. Iceton also found Vina’s

reports of pain credible in the light of his repeated medical

examinations. While the tests Dr. Teuscher performed did not

corroborate Vina’s pain, neither did he state that it did not

exist ; he conceded that permanent disability could be based upon

it. Vessel Repair does not dispute that “a finding of disability

can be based on nothing more than a claimant’s credible reports of

pain”. M

ijangos v. Avondale Shipyards, Inc.

, 948 F.2d 941, 944

(5th Cir. 1991) (quoting this statement of the law by the ALJ and

reinstating his order relying upon it).8

Citing Consolidation Coal Co. v. OWCP , 54 F.3d 434, 438 (7th

Cir. 1995), Vessel Re pair questions the ALJ’s reliance on Dr.

Iceton being Vina’s treating physician and seeing him several

times , while Dr. Teuscher only saw him once. But, that case

involved an ALJ who conceded that evidence was equally weighted;

the Seventh Circuit referred to cases dispa raging a “mechanical

determination” favoring a treating physicia n’s opinion and the

treatment of physicians’ views as “necessaril y” weightier than a

specialist’s. Id. at 438.

Here, the ALJ explained why more extended examination of the

patient would render more reliable a doctor’s assessment of the

patient’s subjective pain and its cause. In sum, substantial

evidence supports the ALJ in creditin g Vina’s testimony and Dr.

Iceton’s repeated observations of himover Dr. Teuscher’s

inferences from x-rays and a single interview.

2.

In challenging the future employability decision, Vessel

Repair raises several questions regarding Kramberg’s assessment,

referring, for instance, to his not explaining to whom he talked in

investigating two of the job possibilities identified by the other

exp ert (Quintanilla), and to Kramberg’s “cleverly ambiguous and

u nverifiable comments”. However, such concerns should have been* In one case of the identification of contact persons, such a

question was asked

— an d answered – during Kramberg’s testimony.

Vessel Repair asked, concerning Allied Fabrication and Welding,

whether Kramberg had spoken to Damon, “the person that worked on

the computer in the of fice”; and Kramberg answered “That’s

correct”. Now, however, Vessel Repair complains, concerning the

same employer, that Kramberg “does not identify the individual with

whom he spoke, so that his comments could be verified”. Concerning

Tubal-Cain Industries, Vessel Repair maintains that Quintanilla

identified the person to whom he spoke, Judice, but Kramberg did

not. However, in his deposition, Kramberg refers to what “Mr.

Judice indicated to me”.

9 directed to Kramberg, or answered with evidence to contradict his

testimony. *

Vessel Repair introduced no response or explanation to rebut

Kramberg’s assessment of Vina’s job prospects. Accordingly, there

is substa ntial evidence to support the ALJ’s future employment

finding.

B.

The DOWCP challenges second-fund injury liability, covered by

LHWCA § 8(f), 33 U.S.C. § 908(f): subject to certain exceptions,

where an employee has pre-employment permanent partial disability

and then, during employme nt, suffers an injury increasing that

disability, the employer’s liability is l imited to 104 weeks of

coverage, with the remainder paid from a special fund.

Courts have added a “manifest” requirement. “To satisfy the

requirements of section 8(f), this court has required an employer

to prove that the claimant's pre-existing perm anent partial

disability was ‘manifest’ to the employer prior to the current10

injury.” C eres Marine Terminal v. Director, OWCP

, 118 F.3d 387,

392 (5th Cir. 1997). This “manifest” requirement has been added in

the light of § 8(f)’s purpo se to protect a worker with permanent

partial disability f rom hiring discrimination. Of course, such

discrimination is not possible where such disability is unknown and

unknowable. S ee id. A s discussed infra

, such knowledge can be

constructive.

The fund liability is contested in two ways: first, the

“absolute defen se” of § 908(f)(3) applies; second, Vina’s preemployment injury was not “manifest”.

1.

An employer’s second-injury fund application is to be made to

the deputy commissioner (also termed the district director) prior

to his consideration of the compensation claim. 33 U.S.C. §

908(f)(3). That subsection further provides:

Failure to present such request prior to such

consideration shall be an absolute defense to

the special fund’s liability for the payment

of any benefits in connection with such claim,

unless the employer could not have reasonably

anticipated the liability of the special fund

prior to the issuance of a compensation order

.

33 U.S.C. § 908(f)(3)(emphasis added). Vessel Repair relies on the

emphasized language and, in particular, the manifest requirement,

maintaining that, when this matter was before th e district

director, because it did not then know of the treatment by Dr.

Ramos, it could not have reasonably anticipated that Vina’s prior11

condition was manifest and so could not have reasonably anticipated

special fund liability.

The fact-finding by the ALJ regarding t he timing of Vessel

Repair’s knowledge of Dr. Ramos’ report is not disputed by DOWCP.

It is also undisputed that , without that report, the manifest

requirement is unmet, and so the second-injury fund is not liable.

(As discussed infra , DOWCP maintains that, even given the report,

the requirement is unmet.)

Disputing none of these facts, DOWCP asserts only that Vessel

Repair should have presented its “excuse” to the district director

and requested an extension prior to his referral to the OALJ.

However, it goes wi thout saying that, where an employer’s reason

for not presenting an application before such referral is because

it coul d not reasonably anticipate second-injury fund liability

until after the referral, it cannot present the reason prior to

referral.

We therefore decline DOWCP’s invitation to impose on employers

a requirement to explain to the district director circumstances

which, to the employers’ knowledge, do not then yet exist. The

LHWCA explicitly co ntemplates excuses which may arise after the

referral to the OALJ; moreover, by their nature, such post-referral

excuses must be assessed by the ALJ rather than by the district

director.12

Relatedly, DOWCP puts its claim in terms of jurisdiction and

the ALJ’s authority to review the district d irector, citing B ath

Iron Works Corp. v. Director, OWCP , 950 F.2d 56 (1st Cir. 1991).

There, however, the court noted that, “importantly,

Employer-Carrier possessed other information earlier which in the

factual assessment of the ALJ and the Benefits Review Board enabled

[Employer-Carrier] to ‘reasonably anticipate’ the liability of the

special fund”. I d. at 59. Because here, DOWCP does not contest

th e facts regarding reasonable anticipation, B ath Iron Works is

inapposite.

Moreover, as its quoted language shows, the First Circuit in

Bath Iron Works considers reasonable anticipation to turn on factfinding within the province of the ALJ, rather than that of the

district director. We agree with the First Circuit there and with

a recent Fourth Circuit opinion (upon which DOWCP r elies), which

holds that “ r easonable anticipation” is essentially a factual

matter appropriate for an ALJ’s assessment. S ee Director, OWCP v.

Newport News Shipbuilding and Dry Dock Co.

, 134 F.3d 1241, 1246

(4th Cir. 1998) (remanding to the ALJ, not the district director,

for failure to make required factual findings regarding reasonable

anticipation) (“Only an ALJ has the power to make the factual

findings, assess the credibil ity of the relevant witnesses, and

resolve any inconsistencies in the evidence necessary to determine

if [the employer] demonstrated that it could not have ‘reasonably13

anticipated’ the late-asserted ground for § 8(f) relief at the time

the company initially filed its application with the district

director.”). Accordingly, finding substantial evidence in the

record to support the ALJ’s finding on reasonable anticipation, we

must defer to the ALJ.

DOWCP urges th at Vessel Repair was obliged to engage in

discovery while the matter was pending before the district director

in order to “develop its case” and learn whether Vina’s prior

condition was manifest in a medical re cord. On this record, we

disagree. A great number of people suffer from back conditions

without having been treated; for ex ample, Dr. Teuscher testified

that degenerative disk disease is a natural consequence of aging.

Accordingly, the bare fact of a back condition is not necessarily

a warrant for discovery regarding the existence of a medical record

making the condition manifest. C f

. Jones v. Ca pital Cities/ABC

Inc.

, 168 F.R.D. 477, 480 (S.D.N.Y. 1996) (“The purpose of

discovery is to find out additional facts about a well-pleaded

claim, not to find o ut whether such a claim exists.”). C ajun

Tubing Testors, Inc. v. Hargrave

, 951 F.2d 72 (5th Cir. 1992), upon

which DOWCP relies, explicitly predicates the duties to submit a §

8(f) claim and to take discovery on knowledge of a claim: “An

employer is clearly obligated to submit a claim when it knows that

it has such a claim ”. Id . at 75 (emphasis added).14 2.

DOWCP also contests whether Vina’s prior injury was “manifest”

from medical records pre-dating the 1992 injury. The parties agree

that an injury or condition is manifest if diagnosed and identified

in a medical record, for then the employer has constructive

knowledge of its existence.

In urging that no medical record exists identifying Vina’s

condition, DOWCP points particularly to Dr. Ramos’ statement in one

of his reports: “The computerized tomographic examination of the

cervical spine is normal with no findings to suggest a herniated

disc or bony spinal stenosis”. Another of Dr. Ramos’ reports

indicates plainly, however, that Vina had suffe red an injury at

work. Dr. Ramos also stated, “The preliminary scout radiograph

demonstrates degenerative narrowing of the C4-5, C5-6 and C6-7 disc

spaces. Despite this narrowing, I do not see any findings to

s uggest a herniated disc”. And, a letter by Dr. Ramos to Vina’s

employer over one year after the 1986 injury reports continuing and

worsening lumbosacral p ain and neck discomfort. These documents

provide substantial evi dence to support the ALJ’s finding that

Vina’ s prior condition increasing his susceptibility to become

disabled if re-injured was manifest.

V.

Accordingly, the petitions are

DENIED.