* 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. 07-60818

Summary Calendar

LAKE CHARLES FOOD PRODUCTS, L.L.C.; AMERICAN LONGSHORE

MUTUAL ASSOCIATION, LTD., 

Petitioners,

v.

LARRY BROUSSARD; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, U.S. DEPARTMENT OF LABOR

Respondents.

On Petition for Review of an Order

of the Benefits Review Board

BRB No. 07-0153

Before SMITH, BARKSDALE, and ELROD, Circuit Judges. 

PER CURIAM:*

Petitioners Lake Charles Food Products, L.L.C. (“LCFP”) and American

Longshore Mutual Association, Ltd. (“ALMA”) petition this court for review of

the Benefits Review Board’s decision affirming an administrative law judge’s

award of benefits to Respondent Larry Broussard. For the reasons set forth

below, we deny the petition for review. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-60818

2

I. Facts and Proceedings

Larry Broussard injured his right hip, leg, elbow, and lower back on

October 30, 2003, when he was struck by a forklift while working as a warehouse

foreman. LCFP paid Broussard temporary total disability benefits from October

31, 2003 to May 26, 2005, at which time the company stopped making voluntary

payments on the ground that a May 29, 2004 automobile accident involving

Broussard constituted a supervening cause of his disability. Broussard filed for

benefits under theLongshore and Harbor Workers’ Compensation Act, 33 U.S.C.

§§ 901–950 (“LHWCA”). The administrative law judge (“ALJ”) found that the

May 2004 accident was not a supervening cause of Broussard’s disability and

awarded him benefits, including temporary total disability compensation and

payment for all future reasonable medical care arising from his work-related

injury. 

The Benefits Review Board (“BRB”) affirmed the award. In their petition

for review of the BRB’s decision, LCFP and ALMA argue that the May 2004

accident was a supervening cause of Broussard’s disability, that the BRB erred

in affirming the ALJ’s “erroneous interpretation and application” of the legal

standard governing what constitutes a supervening cause relieving an employer

of liability under the LHWCA, and that the BRB erred in finding that the ALJ’s

award was supported by substantial evidence. LCFP and ALMA also argue that

under any standard, the increase in back pain Broussard experienced after the

May 2004 automobile accident precluded the ALJ’s finding thatthe accident was

not a supervening cause of his disability. 

II. Standard of Review

We review the decision of the BRB de novo. Sketoe v. Exxon Co., USA, 188

F.3d 596, 597 (5th Cir. 1999). “Our review of the [BRB’s decision] is limited in

scope to considering errors of law and making certain that the BRB adhered to

its statutory standard of review of factual determinations, that is, whether the

ALJ’s findings of fact are supported by substantial evidence and [are] consistent
No. 07-60818

3

with the law.” Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir.

2003) (citation and internal quotation marks omitted). We may not substitute

our judgment for that of the ALJ, nor may we reweigh or reappraise the

evidence; instead, we inquire whether there was substantial evidence supporting

the ALJ’s factual findings. Louisiana Ins. Guar. Ass’n v. Bunol, 211 F.3d 294,

296 (5th Cir. 2000). “Substantial evidence is evidence that a ‘reasonable mind

might accept as adequate to support a conclusion.’” Hall v. Consol. Employment

Sys., Inc., 139 F.3d 1025, 1029 (5th Cir. 1998) (quoting Pierce v. Underwood, 487

U.S. 552, 565 (1988)). “The requirement of substantial evidence 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.” Id.

(citation and internal quotation marks omitted). 

III. Discussion

“Generally, the idea of proximate cause, as applied in tort law, does not

apply to the LHWCA.” Shell Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 316

(5th Cir. 1997). “With only a few exceptions, the court’s function is at an end

once causation in fact has been established.” Id. One such exception arises

“when the claimed injury has a supervening, independent cause.” Id. In this

case, LCFP and ALMA assert that Broussard’s May 2004 automobile accident

was a supervening cause of his disability that relieved them from further

liability. 

As both the ALJ and the BRB recognized, and as we have previously

observed,“some tension” exists between the standards of supervening causation

articulated in Voris v. Texas Employers Ins. Ass’n, 190 F.2d 929 (5th Cir. 1951),

and in Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, modified on other

grounds and reh’g denied, 657 F.2d 665 (5th Cir. 1981). See Bludworth

Shipyard, Inc. v.Lira, 700F.2d 1046, 1050–51 (5th Cir. 1983) (recognizing “some

tension” between the two cases). In Voris, a panel of this court held that a
No. 07-60818

4

supervening cause is an “influence[] originating entirely outside the

employment” that “overpowered and nullified” the causal effect of the

employment on the claimant’s injury. Id. at 934. In Bosarge, a subsequent

panel stated, without discussing Voris, that “[a] subsequent injury is

compensable if it is the direct and natural result of a compensable primary

injury, as long as the subsequent progression of the condition is not shown to

have been worsened by an independent cause.” Bosarge, 637 F.2d at 1000. 

Because “[t]he rule in this Circuit is that only an en banc court can

overrule or change what a previous panel has held,” Shell Offshore, 122 F.3d at

316, Voris controls to the extentit conflicts with Bosarge on the facts ofthis case.

However, as in Shell Offshore, “[w]e need not decide which standard is the

operative one and we affirm [Broussard’s] award because the facts in this record

do not meet either standard for supervening cause.” Id. During the hearing

before the ALJ, Broussard submitted the deposition testimony of Dr. Michel

Heard, a board-certified orthopedic surgeon, that magnetic resonance imaging

(“MRI”) scans taken before and after the May 2004 accident showed no objective

worsening of Broussard’s back injury. Likewise, Broussard submitted an

October 21, 2005 report in which Dr. Mark McDonnell opined that Broussard’s

“low back” was not “substantially changed by the automobile accident.”

Broussard also testified that although a lumbar epidural steroid injection he

received about a month before the automobile accidenttemporarily improved his

condition, his back pain returned well before the accident occurred. The ALJ

found Broussard to be a credible witness but did not credit the testimony of Dr.

Walter Foster, LCFP’s and ALMA’s only witness at the hearing, because his

opinion that Broussard’s continuing disability was attributable to the automobile

accident was premised on a fundamental misunderstanding of the relevant

facts—specifically, Dr. Foster erroneously believed that Dr. Heard had released

Broussard for a functional capacity evaluation and a work hardening program

before the accident. 
No. 07-60818

5

In light of this testimony, the BRB did not err in concluding that the

record contains substantial evidence supporting the ALJ’s conclusion that the

May 2004 accident neither “overpowered and nullified” Broussard’s workplace

injury nor worsened his disability in a legally significant way. The fact that

Broussard experienced additional back pain following the automobile accident

does not change this result—as the BRB observed, substantial evidence supports

the ALJ’s conclusion that Broussard was “totally disabled before the [automobile

accident] and in need of conservative treatment, and the same disability and

treatment continued after the [accident].” 

IV. Conclusion

We DENY the petition for review of the Benefits Review Board’s decision.