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 4,2001No. 00-60563 c/w No. 00-60703 --2--

* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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 awar d 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 Boa rd (“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 (5 th Cir. 2000). “As stated, our standard of review is a

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

Cir. 2000).

The ALJ’s decision is supported by substantial evidence and isNo. 00-60563 c/w No. 00-60703 --3--

consiste nt with the law. “The ALJ is the factfinder and ‘is

entit led to consider all credibility inferences.’” M endoza v.

Ma rine Personnel Co., Inc. , 46 F.3d 498, 500 (5 t h Cir. 1995)

(quo ting A vondale Shipyards, Inc. v. Kennel

, 914 F.2d 88, 91 (5 th

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

discretion in the award of attorney’s fees.

AFFIRMED.