Pena Garcia v. Director, OWCP ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1225
LUIS PEÑA-GARCIA,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CALZADILLA CONSTRUCTION CORPORATION;
IMS INSURANCE COMPANY OF PUERTO RICO,
Respondents.
PETITION FOR REVIEW OF A FINAL ORDER OF THE BENEFITS REVIEW
BOARD, UNITED STATES DEPARTMENT OF LABOR
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Emilio F. Soler on brief for petitioner.
Manuel Porro-Vizcarra and Manuel Porro-Vizcarra Law Offices
on brief for respondents Calzadilla Construction Corporation and
IMS Insurance Company of Puerto Rico.
March 1, 2019
LYNCH, Circuit Judge. This case raises the question of
what is a "successful prosecution" in a claim for benefits under
the Longshore and Harbor Workers' Compensation Act (LHWCA), so as
to warrant an award of attorney's fees to a claimant. See 33
U.S.C. § 928.
After suffering a disabling back injury in 1994 while
working for Calzadilla Construction Corporation (Calzadilla) in
Puerto Rico, Luis Peña-Garcia (Peña) sought coverage for spinal
surgery. Calzadilla's insurer, IMS Insurance Company of Puerto
Rico (IMS), said it would pay for such surgery in Puerto Rico,
where Peña's surgeon was willing and able to perform it. Peña
rejected that and said the surgery must be at Beth Israel Spine
Institute in New York. Peña then filed a claim for medical
compensation for surgery in New York against Calzadilla and IMS
under the LHWCA. 33 U.S.C. § 901 et seq.
An LHWCA administrative law judge (ALJ) determined that
Calzadilla and IMS had never refused to pay for the surgery and
rejected Peña's claim that it was necessary to perform his surgery
in New York. Consequently, the ALJ later held that Peña was not
entitled to attorney's fees and costs. The U.S. Department of
Labor Benefits Review Board (the Board) affirmed the denial of
attorney's fees and costs. Finding no error, we deny Peña's
petition for review.
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I.
A. Facts
The pertinent facts are not disputed. At all relevant
times, Peña lived and worked in Puerto Rico. Peña's back injury
at Calzadilla left him totally and permanently disabled.
Calzadilla and IMS accepted liability for Peña's injury and began
paying him medical benefits even before he made the claim at issue
here.
On March 15, 2010, Peña saw an orthopedic surgeon, Dr.
Luis Pio Sánchez-Caso (Dr. Sánchez), who recommended that Peña
undergo a laminectomy decompression, a "complex spine
reconstruction" surgery. Dr. Sánchez was willing and able to
perform the surgery at San Pablo Hospital in Puerto Rico. Dr.
Sánchez, though not board-certified, had post-graduate training in
the area of orthopedic surgery, had performed spinal surgeries
since 1998, and had previously performed the surgery that Peña
needed in Puerto Rico. Peña could also obtain the rehabilitation
he needed from two HealthSouth locations in Puerto Rico. The
medical director of HealthSouth, Dr. Edward Ramos, was board-
certified in physical medicine and in rehabilitation with a spinal
cord injury medicine subspecialty.
Peña wanted instead to have the spinal surgery at Beth
Israel Spine Institute in New York because it is "close to [his]
family" and has "a record of being the best institution." In a
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letter to Peña's attorney, dated April 13, 2010, IMS rejected that
request and stated:
Please be advised that we can not cover your
client's surgery outside of Puerto Rico. He
has been examined and evaluated by a competent
surgeon, Dr. S[á]nchez[-]Caso, who
recommended the surgery in Puerto Rico, at the
San Pablo Hospital.
Additionally, our decision is based on the
fact that Mr. Peña and his immediate family
continue to reside in Puerto Rico, and, Mr.
Peña's recovery time will be approximately
three months to one year and he will need
considerable family assistance during his
recovery. Under these circumstances, we must
respectfully deny Mr. Peña's request to
undergo his surgery outside Puerto Rico.
B. Procedural History
On October 13, 2010, Peña submitted a claim to the
Director of the Office of Workers' Compensation Programs (the
Director) against Calzadilla and IMS under the LHWCA, on the ground
that IMS's refusal to pay for spinal surgery in New York violated
the LHWCA's requirement that "[t]he employer shall furnish such
medical, surgical, and other attendance or treatment . . . for
such period as the nature of the injury or the process of recovery
may require." 33 U.S.C. § 907(a). The Director referred the case
to the Office of Administrative Law Judges. After the parties
tried unsuccessfully to settle the matter, an ALJ held a hearing
on September 17, 2015. At the hearing, IMS did not dispute that
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Peña was entitled to medical benefits from Calzadilla due to his
back injury, including for surgery in Puerto Rico.
On March 22, 2016, the ALJ ordered Calzadilla and IMS to
"furnish to [Peña], such reasonable, appropriate, and necessary
medical care and treatment as his back and neck injury which
occurred on May 16, 1994, may require, including spinal surgery
and post-surgery care such as rehabilitation." The ALJ's decision
further stated that Calzadilla "will be liable only for the medical
costs and incidental expenses associated with obtaining such care
and treatment in Puerto Rico, regardless of where [Peña] chooses
to obtain such care and treatment." Peña could, of course, have
the surgery done in New York, but he would then be responsible for
whatever additional expenses he incurred.
Peña's attorney then submitted a request to the ALJ for
$60,515 in attorney's fees and $4,000 in fees for Peña's treating
physician who had testified at the hearing. His argument was based
on the assertion that Peña had successfully prosecuted the earlier
claim before the ALJ, on the theory that his claim had been a
victory because he had obtained what he called his right to choose
to have the surgery in New York.
On August 3, 2016, the ALJ issued a supplemental decision
and order denying the request for attorney's fees and costs. The
ALJ stated that Peña had not obtained a "successful prosecution,"
which is required to recover attorney's fees and costs under the
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LHWCA, because IMS "has been paying compensation to [Peña] prior
to the hearing and has not refused to pay for [Peña's] surgery in
Puerto Rico." The ALJ also noted that "[t]here is no evidence
that [IMS] at any point . . . refused to cover any portion of
[Peña's] surgery if it were performed outside Puerto Rico."1 The
ALJ added, "[h]ad [IMS] asserted that it would refuse to pay for
any portion of [Peña's] surgery and rehabilitation if it were
performed in New York, [Peña] would have been successful in
litigating his case." The ALJ determined that Peña "did not gain
any additional benefit above [and] beyond what he would have
received had he not initiated this claim."
On September 2, 2016, Peña filed a petition for
reconsideration on the issue of attorney's fees and costs. The
ALJ denied the petition on October 5, 2016. Peña appealed the
denial of attorney's fees and costs to the Board, which affirmed
the ALJ's decision on September 13, 2017. The Board stated that
Peña's self-proposed "'right to choose' to have the surgery in New
York is not a 'victory' under the [LHWCA], because [the] employer's
liability is limited to the cost of surgery and rehabilitation in
Puerto Rico, which [the] employer had agreed to before the
proceedings were initiated." The Board determined that Peña "did
not obtain a tangible benefit that [the] employer had denied him."
1 Peña did not challenge this finding before the Board.
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On January 16, 2018, the Board denied Peña's motion for
reconsideration. Peña then petitioned this court for review of
the Board's decision.
II.
"This court reviews the [Board's] decision on legal
issues de novo and determines whether the Board adhered to the
'substantial evidence' standard when it reviewed the ALJ's factual
findings." Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st Cir.
1999). "In reviewing for substantial evidence, we assess the
record as a whole, and we will affirm so long as we are satisfied
that the record contains 'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Bath
Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir.
2003) (quoting Sprague v. Dir., Office of Workers' Comp. Programs,
U.S. Dept. of Labor, 688 F.2d 862, 865 (1st Cir. 1982)).
The LHWCA grants attorney's fees in two situations. 33
U.S.C. § 928(a)-(b). Under subsection (a) of the LHWCA's fee
provision, attorney's fees "shall be awarded" to a claimant when
the employer "declines to pay any compensation . . . on the ground
that there is no liability" and the claimant "utilize[s] the
services of an attorney at law in the successful prosecution of
his claim." Id. § 928(a). Under subsection (b), if the employer
accepts liability but the parties dispute the amount of
"compensation" and the claimant "utilizes the services of an
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attorney," the claimant "shall be awarded" attorney's fees if
"compensation thereafter awarded is greater than the amount paid
or tendered by the employer or carrier."2 Id. § 928(b).
The Board's decision is both correct and supported by
substantial evidence. Peña makes an argument under subsection (a)
that he obtained a "successful prosecution" because Calzadilla and
IMS "raised a complete challenge to [his] request for treatment in
New York." The argument is wrong. Subsection (a) is triggered
only when the employer or insurance carrier denies liability and
refuses to pay the claimant "any compensation." Id. § 928(a). In
fact, IMS was paying Peña some compensation in the form of medical
benefits before this claim was initiated, calling into question
whether subsection (a) applies at all. But we bypass that question
to address the surgery compensation issue. The employer's actions
here do not amount to a refusal to pay "any compensation." See
id. There is no evidence that Calzadilla and IMS refused to cover
the cost of the surgery in Puerto Rico.
Peña's argument under subsection (b) also fails. He
mischaracterizes the ALJ's decision both as confirming his "right
2 As to costs, the LHWCA provides that "[i]n cases where
an attorney's fee is awarded against an employer or carrier there
may be further assessed against such employer or carrier as costs,
fees and mileage for necessary witnesses attending the hearing at
the instance of claimant." 33 U.S.C. § 928(d).
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to choose surgery/rehabilitation treatment in New York" and as an
award of "additional compensation." Subsection (b) requires that
Peña show that the "additional compensation" awarded after he filed
his claim was "greater than the amount paid or tendered by the
employer or carrier." Id. § 928(b). The LHWCA defines
"compensation" as "money allowance payable to an employee or to
his dependents as provided for in this chapter." Id. § 902(12);
see Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor
v. Baca, 927 F.2d 1122, 1124 (10th Cir. 1991) (noting that, under
the LHWCA, "attorney[']s fees may only be awarded when the claimant
has gained some economic benefit."). Peña was not awarded
compensation greater than that tendered by his employer because
there is no evidence that IMS refused to pay for surgery at the
Puerto Rico cost, regardless of where Peña chose to have the
surgery.
Peña's argument is also doomed by this court's decision
in Barker v. U.S. Dep't of Labor, 138 F.3d 431 (1st Cir. 1998).
In Barker, the petitioner argued that he was entitled to attorney's
fees under subsection (b) because, "though he had not secured any
additional benefits," he "was the prevailing party in the sense
that the administrative proceedings confirmed his entitlement to
LHWCA benefits." Id. at 438. Barker held that this argument
"distorts the contours of subsection (b)" because under its plain
meaning, entitlement to attorney's fees "turns on whether the
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claimant succeeds in securing additional compensation."3 Id.
(emphasis added). Peña did not secure any additional compensation
by filing his claim. The Board did not err in denying the request
for attorney's fees and costs.
The petition for review, which is without merit, is
denied.
3 In Barker, we left open the question of "whether medical
benefits are (or are not) subsumed within the phrase 'additional
compensation'" in the LHWCA's attorney's fee provision. Barker,
138 F.3d at 439. As in Barker, we need not address that issue,
because "[t]he record is bereft of any credible evidence indicating
that . . . the petition brought about a payment that would not
otherwise have occurred." Id.
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