* 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. 07-60370

Summary Calendar

BERRY BROTHERS GENERAL CONTRACTORS INC; ZURICH

AMERICAN INSURANCE COMPANY

Petitioners

v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US

DEPARTMENT OF LABOR; PERRY W TAYLOR

Respondents

Petition for Review from the 

Benefits Review Board

BRB Nos. 06-0675 & 06-0675A

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

Berry Brothers (“Berry”) petitions for review of the final decision of the

Benefits Review Board (“Board”) affirming an administrative law judge’s (“ALJ”)

decision. The ALJ found Berry responsible for an injury suffered by Perry

Taylor (“Taylor”) pursuant to the Longshore and Harbor Workers’ Compensation

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-60370

2

Act (“LHWCA”), as amended, 33 U.S.C. § 901 et seq. Berry’s petition is

DENIED. 

I. FACTS AND PROCEEDINGS

On April 7, 2004, while working as a welder for Berry, Taylor injured his

right knee when the catwalk on which he was working flipped. He continued

working the day of his injury and the following day. He was off for two weeks

because of a lack of work. After returning to work for Berry, he sought medical

attention and was removed from work on June 8, 2004 by Dr. Fitter who

prescribed Vioxx for Taylor. Fitter returned Taylor to work on June 22, 2004,

but Taylor did not return to work for Berry. In his deposition, Fitter testified

that without attempting to engage in work activities, a patient would not know

if the disability were temporary or permanent. 

Taylor wentto work for other employers. He stopped taking Vioxx and his

knee pain returned. He went to see Fitter again in November 2004 who

recommended an MRI of Taylor’s knee, but Berry canceled the MRI because it

was too expensive. In February 2005, Taylor saw Dr. Blanda about his knee.

Blanda recommended an arthrogram and reviewed an MRI that Taylor had paid

for himself. Blanda recommended arthroscopic surgery. He also testified in his

deposition that activities normally performed by a welder would aggravate or

exacerbate Taylor’s knee condition. Blanda indicated that Vioxx would have

relieved the symptoms of Taylor’s injury. 

Taylor filed a notice of controversion on December 20, 2004. On June 3,

2005, he asked the Department of Labor to refer the matter to an ALJ for

disposition. It was referred to an ALJ on June 8, 2005. On November 23, 2005,

Berry moved for leave to file a third-party complaint. The ALJ denied the

motion on December 7, 2005 because trial was set for January 2006 and Taylor

would be prejudiced by the continuance resulting from the addition of a third

party. After a hearing, the ALJ found that Berry was the employer responsible
No. 07-60370

3

for Taylor’s injury. The ALJ decided that Berry, as opposed to Taylor’s

employers subsequent to the catwalk accident, was responsible for Taylor’s

temporary disability benefits and medical expenses because Taylor’s condition

was the natural progression of the original injury and not the aggravation of a

prior injury. The Board affirmed. 

In its petition, Berry argues that the Board erred in affirming the ALJ’s

finding that Taylor’s continued pain was a natural progression of his catwalk

injury. It also asks this Court to review the ALJ’s denial of its motion for leave

to file a third-party complaint.

II. STANDARD OF REVIEW

We review a decision of the Benefits Review Board using the

same standard the Board applies to review a decision of the ALJ:

whether the decision is supported by substantial evidence and is in

accordance with law. Substantial evidence is evidence 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. The substantial

evidence standard is less demanding than that of preponderance of

the evidence, and the ALJ’s decision need not constitute the sole

inference that can be drawn from the facts. 

Moreover, we may not substitute our judgment for that of the

ALJ, nor reweigh or reappraise the evidence, but may only

determine whether evidence exists to support the ALJ’s findings.

All doubts are to be construed in favor ofthe employee in accordance

with the remedial purposes of the act. 

New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030–31 (5th Cir. 1997)

(internal quotations and citations omitted).

III. APPLICABLE LAW

“[T]he aggravation rule is a doctrine of general workers’ compensation law

which provides that, where an employment injury worsens or combines with a

preexisting impairment to produce a disability greater than that which would
No. 07-60370

4

have resulted from the employment injury alone, the entire resulting disability

is compensable.” Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.

1986). An aggravation of a preexisting condition can be an injury under the

LHWCA. Id. Thus, “a single employer may be held liable for the totality of an

injured worker’s disability, even though the disability may be attributable to a

series of injuries that the worker suffered while working for more than one

employer.” Metro. Stevedore Co. v. Crescent Wharf & Warehouse Co., 339 F.3d

1102, 1104 (9th Cir. 2003). 

[I]n cases where the disability is the result of cumulative traumas,

so-called ‘two-injury’ cases, the responsible employer depends upon

the cause of the worker’s ultimate disability. If the worker’s

ultimate disability is the result of the natural progression of the

initial injury and would have occurred notwithstanding a

subsequent injury, the employer of the worker on the date of the

initial injury is the responsible employer. However, if the disability

is at least partially the result of a subsequent injury aggravating,

accelerating or combining with a prior injury to create the ultimate

disability, we have held that the employer of the worker at the time

of the most recent injury is the responsible, and therefore liable,

employer. 

Id. at 1105.

IV. DISCUSSION

A. Aggravation Rule

Berry argues that the Board erred in affirming the ALJ’s finding because

of the testimony of Doctors Fitter and Blanda. Fitter testified that “repeated

deep knee bends can accelerate the degenerative process. In other words, make

it worse.” He said that such activities “can be expected to aggravate . . . arthritic

change.” However, Fitter also testified that he returned Taylor to work and that

Taylor had to engage in regular work activities to know if the arthritic condition

was a temporary or permanent condition. Fitter concluded that the catwalk

“accident was a significant factor in developing symptoms from [Taylor’s]
No. 07-60370

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arthritis.” He also agreed that Taylor’s condition was a normal progression of

an arthritic condition that became painful as a result of the catwalk accident.

Blanda testified that the activities of a welder would probably exacerbate

a knee condition like Taylor’s. He stated “[i]f you have an injury and you

continue to abuse the joint with severe wear and tear problems, then you’re

going to cause further damage.” Blanda also said “an injury predisposes or

causes degeneration in many cases . . . .” 

Berry relies on four cases where an employee’s last employer was held

responsible for aggravating a condition originally suffered while working for a

previous employer. In Kelaita v. Director, Office of Workers’ Compensation

Programs, the Ninth Circuit held the last employer responsible for the injury

because the employee suffered ”pain flare-ups . . . related to his work” at the last

place of employment. 799 F.2d 1308, 1312 (9th Cir. 1986). In Foundation

Constructors, Inc. v. Director, Office of Workers Compensation Programs, the

Ninth Circuit held the last employer responsible for a preexisting back condition

which deteriorated so much over the six months the employee worked for the

last employer that he had to leave the job. 950 F.2d 621, 622, 625 (9th Cir. 1991).

In Metropolitan Stevedore Company, the Ninth Circuit held that an employer

was responsible for an employee whose previous condition got progressively

worse over one day of work, the only day that employee worked for the company.

339 F.3d at 1104, 1107. In Delaware River Stevedores, Inc. v. Director, Office of

Workers’ Compensation Programs, the Third Circuit held the last employer

responsible when the employee suffered a flare-up of pain after months of

working long hours that resulted in a final debilitating event. 279 F.3d 233,

242–43 (3d Cir. 2002). 

None of these cases are applicable. There is no indication in the record

that Taylor suffered from increased pain, a flare-up of pain, or a worsening of his

condition caused by his work for a subsequent employer. While Fitter and
No. 07-60370

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Blanda opined that strenuous activity consistent with welding work would likely

aggravate an injury like Taylor’s, nothing indicates that it actually did. The

record indicates that Taylor’s condition remained the same after his injury, but

the symptoms were reduced while he was taking Vioxx. Blanda’s testimony that

Vioxx would reduce Taylor’s pain is consistent with the ALJ’s finding that

Taylor’s pain was a natural progression of the original injury. Under the

deferential substantial evidence standard of review, this Court must deny

Berry’s petition.

B. Denial of Motion for Leave to File Third-Party Complaint

Berry argues that the ALJ abused its discretion by denying its motion for

leave to file a third-party complaint. Upon the filing of a petition by a party, the

courts of appeals “shall have jurisdiction of the proceeding and shall have the

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

the order of the [Benefits Review] Board . . . .” 33 U.S.C. § 921(c). Berry does not

allege that it raised the denial of its motion in its petition to the Board. There

is no mention of the denial of the motion in Berry’s petition for review to the

Board, nor in the Board’s decision and order. Because Berry did not raise this

issue before the Board, “[w]e therefore may not consider it.” James J. Flanagan

Stevedores, Inc. v. Gallagher, 219 F.3d 426, 437 (5th Cir. 2000); see also United

States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36–37 (1952). 

V. CONCLUSION

Berry’s petition is DENIED.