UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4077

INGALLS SHIPBUILDING, INC.,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, U.S.

DEPARMENT OF LABOR, and

ROBERT L. BAKER,

Respondents.

CONSOLIDATED WITH

_________________

No. 92-4078

_________________

INGALLS SHIPBUILDING, INC.,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR and

TIMOTHY BUCKLEY,

Respondents.

On Petitions for Review of an Order

of the Benefits Review Board

(BRB #90 1756 (OWCP #6 109791) & 90-2049)

( April 6, 1993 )* Local Rule 47.5 provides: "The publication of opinions that

have no precedential va lue and merely decide particular cases on

the basis of well-settled principles of law imposes n eedless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

1 33 U.S.C. § 901 et seq

.

2 An audiologist is a hearing specialist. A n

otolaryngologist is a medical doctor, specializing in disorders of

the ear, nose, and throat.

2 Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

POLITZ, Chief Judge: *

In these consolidated proceedings, Ingalls Shipbuilding, Inc.

petitions for review of orders of the Benefits Review Board

affirming administrative law judge awards of medical expenses and

attorney's fees to Robert L. Baker and Timothy Buckley. We grant

review and affirm in part, vacate in part, and remand.

Background

Baker and Buckley, former Ingalls employees, filed claims for

hearing loss under the Longshore and Harbor Workers' Compensation

Act 1 (LHWCA or Act). Baker's claim was based on a test by

audi ologist James Wold who found impairment that might have

entitled Baker to disability compensation. Baker, however, was

re-examined at Ingall's request by Jim McDill, an audiologist, and

Philip Gilchrist, an otolaryngologist. 2 McDill and Gilchrist found

mild bilateral high frequency sensorineural hearin g loss of

work-related origin but no functional impairment as defined by the3 Avondale Industries, Inc. v. Director, Office of Workers'

Compensation Programs

, 977 F.2d 186, 189 (5th Cir. 1992) (internal

quotation omitted).

3 American Medical Association Guides. Crediting the

McDill-Gilchrist findings, the ALJ denied disability compensation

but ordered Ingalls to pay medical expen ses, past and future,

including the cost of future hearing examinations. Because Baker

prevailed on his claim for medical expenses the ALJ awarded

attorney's fees.

Buckley's claimwas precipitated by an in-house audiogram,

which found some hearing loss. An examination at Ingalls' request

by McDill and otolaryngologist John Lingo found moderate bilateral

high frequency sensorineural hearing loss of work-related ori gin

but no fu nctional impairment. The ALJ denied disability

compensation but awarded Buckley future medical expen ses and

attorney's fees.

Ingalls appealed both decisions to the Benefits Review Board,

which affirmed. It timely petitioned this court for review and the

two cases were consolidated.

Analysis

Our review of Board decisions is limited. We inquire only

whether the B oard "correctly concluded that the ALJ's order was

supported by substantial evidence on the record as a whole and is

in accordance with the law." 3 Substantial evidence is evidence

that "a reasonable mind might accept as adequate to support a4 Id.

, quoting NLRB v. Columbian Enameling & Stamping Co.,

Inc.

, 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)

(internal quotations omitted).

5 33 U.S.C. § 908(c)(13)(E).

4 conclusion." 4 In our review we typically defer to the ALJ's

credibility choices between conflicting witnesses and evidence.

Applying this standard, we reject Ingalls' challenge to the ALJ's

application of the law but conclude that the awards of medical

expenses are unsupported by the evidence, with the exceptions noted

herein.

Ingalls contends that t he claimants are not entitled to

medical expenses because the ALJ found that they lacked an

impairment as defined by section 8(c)(13) of the LHWCA. Added to

the Act in 1984, section 8(c)(13)(E) provides, "[d]eterminations of

loss of hearing shall be made in accordance with the guides for the

evaluation of permanent impairment as promulgated and modified from

time to time by the American Medical Association." 5 According to

the reports credited by the ALJ, neither Baker nor Buckley suffered

hearing loss severe enough to constitute an impai rment under the

AMA Guides. As the ALJ held -- no impairment means no disability

compensation. Ingalls contends that it also means no medical

benefits. We do not agree.

Congress inserted the provision requiring use of the AMA

Guides to measure hearing loss in section 8 of the LHWCA.

Section 8 addresses disability compensation. Medical benefits are

covered by section 7, which entitles a claimant to reasonable and6 33 U.S.C. § 907; Dupre v. Cape Romain Contractors

, 2 3

BRBS 86, 1989 WL 245257 (Ben.Rev.Bd. Nov. 29, 1989). Medical

benefits can take the form of services provided at the employer's

expense or monies paid by the employer to the employee in

reimbursement for medic al expenses incurred. L azarus v. Chevron

USA, Inc. , 958 F.2d 1297 (5th Cir. 1992).

7 33 U.S.C. § 902(2).

8 Wheatley v. Adler

, 407 F.2d 307, 311 n.6 (D.C. Cir. 1968)

(en banc); see Romeike v. Kaiser Shipyards , 22 BRBS 57, 1989 WL

245309 (Ben.Rev.Bd. Feb. 24, 1989) (distinguishing between injury

and impairment); Crawford v. Director, OWCP

, 932 F.2d 152 (2d Cir.

1991) (same).

5 necessary medical services if he suffers a work-related i njury. 6

Section 2(2) defines "injury" as "accidental injury or death

arising out of and in the course of employment, and such

occupational disease or infection as arises naturally out of such

employment or as naturally or unavoidably results from such

accidental injury . . . ." 7 Courts have long construed this

definition to mean "something go[ne] wrong with the human frame." 8

Had Congress intended to limit hearing loss injuries for which

medical benefits were available to those satisfying the AMA Guides

for permanent impairment, it would have so stated either in the

definitions or section 7, the medical benefits section. Rather, it

inser ted the AMA Guides in section 8. By so doing, it obviously

intended an application only to claims governed by section 8, i.e.

,

claims for disability compensation. We so hold.

Ingalls' evidentiary objection, however, is well taken.

Buckley presented no evidence of medical expenses incurred in the

past nor of medical treatment necessary in the future. He merely9 Buckley need be mindful that if he visits a specialist

for testing now, to obtain reimbursement he must justify the need

for testing in the wake of the McDill-Lingo test.

10 Cf

. Simeon v. T. Smith & Son, Inc.

, 852 F.2d 1421 (5th

Cir. 1988) (remittitur of $30,000 jury award for future medical

expenses orde red on appeal where only record evidence regarding

future medical expenses was testimony that plaintiff might need a

$10,000 operation), cert

. denied , 490 U.S. 1106 (1989).

11 Strachan Shipping Co. v. Hollis , 460 F.2d 1108 (5th

Cir.), cert

. denied , 409 U.S. 887 (1972), o verruled on other

grounds

, Intercounty Construction Corp. v. Walter , 422 U.S. 1, 95

S.Ct. 2016, 44 L.Ed.2d 643 (1975); Mayfield v. Atlantic & Gulf

Stevedores , 16 BRBS 228 (Ben.Rev.Bd. May 15, 1984).

12 33 U.S.C. § 928(a).

6 points out th at he asked to see a specialist of his choice for

testing; however, he did not provide evidence that he had visited

a specialist and thereby incurred recoverable expenses. 9

Accordingly, there is no evidentiary basis for the ALJ's award of

medical benefits and the award of same is vacated. 10 The parties

agree that claims for medical benefits do not prescribe. 11 Buckley

may file a claim for medical benefits if and when medical treatment

becomes necessary.

Attorney's fees are payable under section 28(a) of the Act

only if claimant's attorney successfully pros ecutes a claim. 1 2

Today's decision nullifies the only heretofore successful element

of Buckley's claim. The award of attorney's fees, therefore, must

be vacated.

Baker presented no evidence o f medical expenses incurred

except for his initial evaluation by Wold. His only evidence of13 Cf

. Romeike

, supra (testimony of two physicians that

monitoring of work-related condition is necessary establishes a

prima facie case for com pensable medical treatment); L azarus v.

Chevron

, supra (to make an award of future medical expenses enforceable, the ALJ should describe the expenses which qualify).

14 Farrar v. Hobby

, 506 U.S.

_____, 113 S.Ct. 566, 121

L.Ed.2d 494 (1992); Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct.

1933, 76 L.Ed.2d 40 (1983); George Hyman Const. Co. v. Brooks

, 963

F.2d 1532 (D.C. Cir. 1992).

7 potential future medical expenses was Wold's report, which

recommended hearing re-evalua tions at least annually and advised

that Baker was "a candidate for amplification." Gilchrist's

rep ort, however, stated that a hearing aid would not help. We

cannot discern with assurance from the ALJ's order which portions,

if any, of the Wold report he credi ted. Accordingly, we must

vacate the award of medical benefits except insofar as it requires

Ingalls to reimburse Baker for Wold's evaluation. Further, we must

remand for proper findings on the existing record about which

future medical services are reasonably necessary. 13

We find no specific award of attorney's fees for Baker's claim

in the record. On remand a fee award tailored to his limited

success should be set. 14

The petitions for review are GRANTED. The order of the

Benefits Review Board in Buckley's case is VACATED. The order of

the Benefits Review Board in Baker's case is AFFIRMED in part,

VACATED in part, and REMANDED.