Avondale Industries v. Gauthreaux ( 2001 )

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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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
*
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opinion should not be published and is not precedent except under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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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.