UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-60563

Summary Calendar

AVONDALE INDUSTRIES, INCORPORATED,

Petitioner,

VERSUS

JERRY JOSEPH GAUTHREAUX; DIRECTOR, OFFICE OF WORKER’S

COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,

Respondents.

No. 00-60703

Summary Calendar

AVONDALE INDUSTRIES, INC.,

Petitioner,

VERSUS

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT

OF LABOR; JERRY JOSEPH GAUTHREAUX,

Respondents.

PETITION FOR REVIEW OF AN ORDER 

OF THE BENEFITS REVIEW BOARD

(97-1105/97-1105A, 99-1021 & 99-1021A)

April 4,2001
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*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opinion should not be published and is not precedent except under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.

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner Avondale Industries, Inc., has filed these

consolidated appeals, one based on the merits of an award of

benefits and another based on an award of attorney’s fees.

Respondent Jerry Gauthreaux suffered a back injury on September 3,

1991, while employed by Avondale as a crane operator. Although

examined by several different doctors at the request of Avondale,

Gauthreaux’s treating physician placed him on disability and

ultimately recommended surgery. After two hearings, an

Administrative Law Judge (“ALJ”) found that Gauthreaux was

temporarily totally disabled after April 2, 1993, and awarded

benefits. The ALJ rejected the argument that a security officer

position offered by Avondale was suitable alternate employment.

The Benefits Review Board (“BRB”) affirmed, and later, awarded

Gauthreaux attorney’s fees. 

Review of BRB decisions is “limited to considering errors of

law and ensuring that the Board adhered to its statutory standard

of review, that is, whether the ALJ's findings of fact are

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

Port Cooper/T. Smith Stevedoring Co., Inc. v. Hunter, 227 F.3d 285,

287 (5th Cir. 2000). “As stated, our standard of review is a

deferential one.” Conoco, Inc. v. Director, OWCP, 194 F.3d 684 (5th

Cir. 2000).

The ALJ’s decision is supported by substantial evidence and is
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consistent with the law. “The ALJ is the factfinder and ‘is

entitled to consider all credibility inferences.’” Mendoza v.

Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th Cir. 1995)

(quoting Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 91 (5th

Cir. 1988)). “[W]e find no error in the ALJ’s primary reliance on

the testimony of [Gauthreaux’s] treating physician. (‘In our

review we typically defer to the ALJ’s credibility choices between

conflicting witnesses and evidence.’)” Conoco, 194 F.3d at 690-91

(quoting Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d

163, 165 (5th Cir. 1993)). We reject Avondale’s argument that the

ALJ applied an incorrect burden of proof with regards to

Gauthreaux’s disability and suitable alternative employment. 

“An award of attorney’s fees by the BRB is reversed only if it

is arbitrary, capricious, an abuse of discretion, or not in

accordance with law.” H.B. Zachry Co. v. Quinones, 206 F.3d 474,

481 (5th Cir. 2000). We do not find that the BRB has abused its

discretion in the award of attorney’s fees.

AFFIRMED.