Goins v. Director, Office of Workers' Compensation Programs , 519 F. App'x 834 ( 2013 )

Case: 12-60380 Document: 00512171711 Page: 1 Date Filed: 03/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2013
No. 12-60380 Lyle W. Cayce
Summary Calendar Clerk
MICHAEL JAMES GOINS,
Petitioner
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; LAKE CHARLES STEVEDORES,
INCORPORATED; PORTS INSURANCE COMPANY, INCORPORATED,
Respondents
Petition for Review of an Order
of the Benefits Review Board
BRB No. 11-477
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Pro se petitioner Michael James Goins seeks review of an order of the
Benefits Review Board affirming an Administrative Law Judge’s Decision and
Order on Remand as to claims he brought under the Longshore and Harbor
Workers’ Compensation Act against two of his former employers, Lake Charles
Stevedores, Inc., and J.J. Flanagan Stevedores. Specifically, Goins appeals the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Board’s order as to the following issues: (1) consolidation of his claims; (2) his
request for attorney fees; (3) determination of his average weekly wage; (4) the
suspension of his benefits because he refused to undergo a medical evaluation;
(5) the finding that his psychological condition is not work-related; and (6) the
finding that respondents are not liable for further costs related to treatment for
his psychological condition. Respondents cross-appeal the Board’s affirmation of
the finding that Goins was permanently and totally disabled, and accordingly is
entitled to permanent and total disability benefits. For the following reasons, we
affirm the Board’s order in all respects.
I. BACKGROUND
Michael James Goins asserted claims for four separate accidents against
two of his former employers—Lake Charles Stevedores, Incorporated, and J.J.
Flanagan Stevedores—and their respective carriers (“Respondents”). After the
first three accidents, benefits were paid under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901, et seq., and Goins
returned to work. Following the final incident on April 25, 2005, Goins stated
that he was no longer able to work due to pain. He sought compensation under
the LHWCA for injuries sustained to his back, right shoulder, and right hip, as
well as for “mental unrest,” which he claimed was due to all of the accidents.
Goins’s employer brought a timely challenge against his April 25, 2005
claim, and all of Goins’s claims were adjudicated at a formal hearing before an
Administrative Law Judge (“ALJ”) on January 20, 2007. On May 8, 2007, the
ALJ issued a Decision and Order awarding Goins temporary total disability
benefits for his four work-related injuries for the periods of January 17 through
February 28, 2001, August 14, 2001 through December 10, 2002, July 6 through
September 21, 2004, and from April 25, 2005 through July 5, 2006. The ALJ
noted that Goins resumed full-duty work after each of the four periods he was
injured without a loss of pay or residual impairment except for the final period;
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the ALJ found that Goins’s inability to work following the final period was due
solely to his non-work-related mental impairment. The ALJ also found that
Goins was entitled to, and Respondents liable for, all reasonable medical benefits
arising out of the April 25, 2005, work-related injuries pursuant to Section 7(a)
of the LHWCA, 33 U.S.C. § 904(a).
Goins sought modification of the ALJ’s Decision and Order under Section
22 of the LHWCA, 33 U.S.C. § 922. Respondents filed a motion to compel an
updated medical examination of Goins by Dr. James Perry. The ALJ issued a
Decision and Order on July 29, 2008 denying Goins’s request for modification
and suspending payment of compensation pursuant to Section 7(d)(4) of the
LHWCA, 33 U.S.C. § 907(d)(4), because of Goins’s unreasonable refusal to
undergo an examination by Dr. Perry.
Goins appealed to the Benefits Review Board (“Board”). On August 14,
2009, the Benefits Review Board (“Board”) reversed the ALJ’s finding that
Goins’s psychological condition is not work-related, as it found that no
psychiatrist gave an opinion to a reasonable degree of medical probability that
Goins’s mental condition was not caused or aggravated by his work-related
injuries. The Board also vacated the ALJ’s finding that Goins is not entitled to
temporary total disability benefits as a result of his April 25, 2005 injury, and
it remanded the case for further consideration of this issue. Finally, the Board
vacated the ALJ’s denial of Goins’s petition for modification.
On March 11, 2011, following a hearing on remand, the ALJ found that
Goins’s mental and physical problems had combined to prevent him from
performing any work as of the date of his last injury. Based on this finding, the
ALJ awarded Goins permanent total disability benefits for the period of April 25,
2005 through July 7, 2008, and entered a continuing award of permanent total
disability benefits to begin on December 1, 2009, based on an average weekly
wage of $389.70. The ALJ also found Respondents liable for medical benefits
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related to Goins’s visits to Dr. Bernauer for treatment for his mental condition
and physical injuries, related travel expenses, and a referral to a neurologist.
Acting pro se, Goins appealed the ALJ’s decision on remand, raising
various issues. Respondents cross-appealed. On March 21, 2012, the Board
affirmed the ALJ’s decision in all respects. In doing so, it held, as a matter of
law, and to clarify the ALJ’s decision, that Respondents are not liable for further
treatment of Goins’s psychological condition.
Again pro se, Goins seeks review of the Board’s Decision and Order
pursuant to 33 U.S.C. § 921(c). He asks us to reverse the Board’s affirmation of
the ALJ’s order regarding (1) consolidation of his claims, (2) his request for
attorney fees, (3) determination of his average weekly wage, (4) suspension of
benefits because of his refusal to undergo a medical evaluation, (5) the finding
that his psychological condition is not work-related, and (6) the finding that
Respondents are not liable for further costs of treating his psychological
condition. Respondents cross-appeal, seeking review of the Board’s affirmation
of the finding that Goins was permanently and totally disabled and therefore
entitled to permanent and total disability benefits.
II. STANDARD OF REVIEW
We review a Board decision for legal errors and adherence to the proper
standard of review, namely, “whether the ALJ’s findings of fact are supported
by substantial evidence and are consistent with the law.” Gulf Best Elec., Inc. v.
Methe, 396 F.3d 601, 603 (5th Cir. 2004). The Board must uphold the ALJ’s
factual findings if they are rational and supported by substantial evidence. 33
U.S.C. § 921(b)(3); Gulf Best, 396 F.3d at 603. Substantial evidence is “that
relevant evidence—more than a scintilla but less than a preponderance—that
would cause a reasonable person to accept the fact finding.” Coastal Prod. Servs.,
Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir. 2009). As the factfinder, the ALJ is
exclusively entitled to assess the weight of the evidence and credibility of
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witnesses. Ceres Gulf, Inc. v. Dir., OWCP, 683 F.3d 225, 228 (5th Cir. 2012)
(citations omitted). We review the Board’s legal conclusions de novo. Tarver v.
Bo–Mac Contractors, Inc., 384 F.3d 180, 181 (5th Cir. 2004).
III. DISCUSSION
A. Goins’s Claims
We first consider whether Goins adequately raised any issues in his
petition for review. With limited exceptions, the Federal Rules of Appellate
Procedure “apply to the review or enforcement of an agency order.” Fed. R. App.
P. 20; see United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 434 (5th Cir. 1987).
These rules require an appellant’s brief to contain “appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). “Failure adequately to
brief an issue on appeal constitutes waiver of that argument.” Proctor & Gamble
Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004). “Although pro se
briefs are to be liberally construed, pro se litigants have no general immunity
from the rule that issues and arguments not briefed on appeal are abandoned.”
Geiger v. Jowers, 404 F.3d 371, 373 n.6 (5th Cir. 2005) (citations omitted); see
also United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (“[W]hile we
construe pro se pleadings liberally, pro se litigants, like all other parties, must
abide by the Federal Rules of Appellate Procedure.”).
The adequate briefing standard is a low hurdle, but Goins does not clear
it. His briefing lacks record citations, citations to relevant legal authority, an
intelligible application of the few authorities cited, or documentation—other
than the Board’s order and a letter stating facts not in dispute—indicating the
basis of his claims. When an appellant fails to provide “the reasons he deserves
the requested relief with citation to the authorities, statutes and parts of the
record relied on,” that failure constitutes waiver. Turner v. Quarterman, 481
F.3d 292, 295 n.1 (5th Cir. 2007) (citation and internal quotation marks
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omitted). Accordingly, we hold that Goins’s inadequate briefing waives his
challenges to the Board’s order.1
B. Respondents’ Cross-Appeal
In their cross-appeal, Respondents argue that the Board erroneously
affirmed the ALJ’s finding that Goins was permanently and totally disabled.
Specifically, Respondents contend that the ALJ erred in finding that Goins’s
non-work-related mental condition combined with his physical condition to
render him permanently and totally disabled under the Board’s aggravation
rule. Respondents argue that the permanent and total disability award was
neither rational nor supported by substantial evidence, and therefore should be
reversed. We disagree and affirm the Board’s order because the Board adhered
to the proper standard of review and did not err as a matter of law.
As the Board acknowledged, the ALJ found that Goins set forth a prima
facie case of total disability by showing that he is physically incapable of
returning to longshore employment. The Board further noted that the record
supports the ALJ’s determination of Goins’s disability status, as it shows by a
preponderance of the evidence that Goins’s physical and mental problems
combined to prevent him from working.
Respondents argue that the ALJ improperly awarded benefits to Goins
based upon its finding that his mental condition interacted with his physical
condition so as to render him totally disabled under the Board’s aggravation
rule. See Cairns v. Matson Terminals, Inc., 21 B.R.B.S. 252 (1988). However,
Respondents have not provided any legal authority to refute the positions,
1
However, even if we were to consider Goins’s claims, they would fail. Goins has not
pointed to, nor have we located, legal authorities suggesting that reversal would be proper
under de novo review. Goins has not in any discernable way argued that the Board failed to
adhere to its proper standard of review. And he has not argued, at least not in a way that we
can identify, that the ALJ lacked substantial evidence to render its decision. Moreover, we
have not found, independently of Goins’s briefing, any basis upon which the Board’s decision
should be overturned with respect to his claims on appeal.
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adopted by the ALJ and confirmed by the Board, that employers take their
employees as they find them, that Goins’s physical injuries combined with his
preexisting mental condition so as to render him permanently and totally
disabled, and thus, that Goins was entitled to permanent and total disability
benefits. See Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 290 & n.16
(5th Cir. 2003) (citing Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th
Cir. 1986) (noting that when an employment injury worsens or combines with
a preexisting condition, the entire resultant condition is compensable)); see also
Wheatley v. Adler, 407 F.2d 307, 312 (D.C. Cir. 1968) (en banc) (same). Rather,
in support of their argument, Respondents appear to request that we reweigh
the evidence—including wage records and testimony—which we are not
permitted to do under the standard of review. Ceres Gulf, Inc., 683 F.3d at 228.
Because Respondents do not ground their argument on the alleged
misapplication of the aggravation rule in legal authority, and because their
argument ostensibly and impermissibly asks us to reweigh the evidence, we
affirm the Board’s order as to this issue.
IV. CONCLUSION
For the reasons stated, we AFFIRM the Board’s order in all respects.
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