Operators Conslt Svc v. DOWCP ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 12, 2005
_____________________
Charles R. Fulbruge III
No. 04-60598 Clerk
Summary Calendar
_____________________
OPERATORS & CONSULTING SERVICES, INCORPORATED; ZURICH AMERICAN
INSURANCE COMPANY,
Petitioners,
versus
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT
OF LABOR; DANOS & CUROLE MARINE CONTRACTORS INCORPORATED; GRAY
INSURANCE COMPANY; JAMES MORRISON,
Respondents.
_________________________________________________________________
Petition for Review of an Order
of the Benefits Review Board
03-0541
_________________________________________________________________
Before JONES, BARKSDALE and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
This appeal involves a claim for benefits under the
Longshore and Harbor Workers’ Compensation Act (“the Act”).1 In
their petition for review, petitioners Operators and Consulting
Services, Inc. and Zurich American Insurance Company (together,
“OCS”) ask this court to set aside an order by the Administrative
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
33 U.S.C. §§ 901-50.
1
Law Judge (“ALJ”) holding them responsible for the claimant’s
disability compensation and medical costs. For the reasons
discussed below, this court denies OCS’s petition for review.
Factual Background
Before the injury which is at the heart of this appeal
occurred, OCS provided workers for the operation of an offshore
platform pursuant to a contract with Burlington Resources. OCS
hired claimant-respondent James Morrison as a field mechanic to
repair mechanical equipment on the platform. As a mechanic,
Morrison was required to carry equipment weighing up to 75
pounds. On October 16, 1997, Morrison injured his back while
climbing up a ladder. A week after the accident, Morrison sought
treatment for his injury from Dr. Karri Gramlich, a chiropractor.
Dr. Gramlich treated Morrison until February 1998, at which point
she reported that Morrison was ready to resume work on a normal
basis.
In May 1998, Burlington Resources terminated its contract
with OCS and contracted with respondent Danos & Curole Marine
Contractors (“Danos & Curole”) to provide workers for the
platform. Danos & Curole hired Morrison on May 8, 1998 after he
successfully completed a preemployment agility test. On May 22,
Morrison returned to Dr. Gramlich for treatment, complaining of
pain in his left leg. Dr. Gramlich treated Morrison until
September 1998. Because his condition showed little improvement,
2
Dr. Gramlich referred Morrison to Dr. Andrew Wilson, a
neurosurgeon. Dr. Wilson began treating Morrison on September
15, 1998, but Morrison’s condition worsened to the point that he
was unable to continue working. Danos & Curole terminated
Morrison on October 22, 1998. Dr. Wilson operated on Morrison’s
back on July 9, 2001.
Morrison filed claims for disability compensation and
medical expenses under the Act against both OCS and Danos &
Curole. Danos & Curole denied responsibility for Morrison’s
disability, maintaining that the disability resulted from the
natural progression of the October 16, 1997 injury Morrison
suffered while working for OCS. After considering the evidence,
the ALJ agreed with Danos & Curole. The ALJ found that
Morrison’s disability was attributable to the injury he sustained
while working for OCS and that Morrison’s back condition was not
aggravated by his employment with Danos & Curole. The ALJ,
therefore, concluded that OCS was responsible for all of
Morrison’s disability compensation and medical expenses.
OCS appealed to the Department of Labor’s Benefits Review
Board (“the Board”). The Board affirmed the ALJ’s ruling. OCS
now asks this court to set aside the ALJ’s order.
Standard of Review
This court reviews a decision of the Board using the same
3
standard the Board applies to review a decision of the ALJ.2 That
is, this court determines whether the ALJ’s decision is supported
by substantial evidence.3 “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.”4
This court may not substitute its judgment for that of the ALJ,
nor reweigh or reappraise the evidence; instead, it may only
determine whether evidence exists to support the ALJ's findings.5
This court will uphold the Board’s decision if the ALJ’s decision
is supported by substantial evidence.6
Analysis
OCS challenges the ALJ’s determination that it is solely
responsible for Morrison’s disability. OCS maintains that
Morrison’s injury was aggravated while he worked for Danos &
Curole, and that as a result, Danos & Curole is liable for the
costs of Morrison’s disability. Specifically, OCS contends that
the ALJ misapplied the “aggravation rule.”
2
SGS Control Servs. v. Dir., Office of Worker’s Comp.
Programs, 86 F.3d 438, 440 (5th Cir. 1996).
3
SGS Control Servs., 86 F.3d at 440.
4
Dir., Office of Workers' Comp. Programs, U.S. Dep’t of
Labor v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir.
1997).
5
SGS Control Servs., 86 F.3d at 440.
6
33 U.S.C. § 921(b)(3).
4
The “aggravation rule” is a judicially created rule for
allocating liability among employers for a worker’s injury.7 The
rule provides that if a claimant’s disability arose from the
natural progression of an injury sustained while working for the
first employer, that employer is completely liable for the
subsequent expenses the claimant incurs from the injury, even
after the claimant no longer works for the first employer.8
However, in cases where the disability results from cumulative
traumas, the responsible employer depends upon the cause of the
worker's ultimate disability.9 If the disability is “at least
partially the result of a second trauma that occurs while working
for a second employer and that injury aggravates, accelerates or
combines with the prior injury to create the ultimate
disability,” the second employer is liable for all medical
expenses and compensation.10 Thus, the dispositive issue in this
appeal is whether Morrison’s disability arose from the natural
7
See Cooper/T. Smith Stevedoring Co., Inc. v. Liuzza, 293
F.3d 741, 749 (5th Cir. 2002) (discussing the aggravation rule
for allocating liability for an occupational disease that
develops after prolonged exposure to an injurious stimuli).
8
See Metro. Stevedore Co. v. Crescent, 339 F.3d 1102, 1105
(9th Cir. 2003) (describing the last responsible employer
rule——otherwise known as the aggravation rule——in the context of
an occupational disease); Strachan Shipping Co. v. Nash, 782 F.2d
513, 517 (5th Cir. 1986) (explaining that this circuit has
consistently applied the aggravation rule in longshoremen cases).
9
Metro. Stevedore Co., 339 F.3d at 1105.
10
Id.5
progression of the injury suffered on October 16, 1997 while he
worked for OCS, or whether his disability was caused by an
aggravation, exacerbation, or acceleration of that injury while
he worked for Danos & Curole.
Here, substantial evidence supports the ALJ’s finding that
Morrison’s disability resulted solely from the injury he suffered
during his employment with OCS. Dr. Wilson testified in his
deposition that he began treating Morrison in September 1998.
Dr. Wilson opined that Morrison’s injury naturally progressed to
the point that surgery was the only way to mitigate further
damage. Dr. Wilson admitted, however, that there was a
possibility that Morrison’s employment with Danos & Curole
exacerbated Morrison’s condition.
Dr. Gramlich also attributed Morrison’s surgery to the
injury that occurred in October 1997. She acknowledged that
working for Danos & Curole may have aggravated Morrison’s back
condition, but opined that the herniated disk that required
surgery resulted from Morrison’s original injury during his
employment with OCS.
In addition, Morrison testified that he continued to
experience lower back pain while working for OCS. Morris
explained that nothing about his job changed when he began
working for Danos & Curole. He stated that he continued to
perform the same job on the same platforms, but explained that he
worked smarter to avoid hurting his back. He described his job
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with Danos & Curole as neither more nor less strenuous than his
work with OCS. Together, testimony from these witnesses
constitutes substantial evidence that Morrison’s disability
resulted from the natural progression of the injury he suffered
in October 1997.
OCS argues that passing the preemployment agility test shows
that Morrison’s back was no longer impaired when he began working
for Danos & Curole. However, Martin Knijn, the physical
therapist who conducted the agility test, testified that the test
was designed to test capabilities, not the amount of stress the
back could sustain. Knijn explained that the successful
completion of the test demonstrates that an employee is capable
of performing most of his job duties for a limited amount of
time. Thus, passing a preemployment agility test does not
necessarily indicate that Morrison’s initial back injury was
resolved by the time he began working for Danos & Curole.
OCS also argues that Morrison’s strenuous work activities
with Danos & Curole over a five month period demonstrate that the
disability arose from an aggravation or acceleration of a
preexisting injury. Morrison, however, testified that his job
with Danos & Curole was neither more nor less strenuous than his
work with OCS, and he did not testify that he suffered a
subsequent injury. Although Morrison explained that Dr. Gramlich
released him to return to work for OCS, substantial evidence
indicates that he was not symptom-free at that time and that his
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pain progressively increased throughout the time he worked for
OCS.
Substantial evidence supports the ALJ’s finding that
Morrison’s disability resulted from the natural progression of
his October 1997 injury; thus, under the “aggravation rule,” OCS,
as the first employer, is solely responsible for Morrison’s
disability.
Conclusion
The ALJ did not err by determining that OCS is responsible
for Morrison’s disability compensation and medical costs because
substantial evidence indicates that Morrison’s disability was
caused by his injury while working for OCS. As a result, the
Board properly affirmed the ALJ’s decision. Consequently, this
court DENIES the petition for review.
PETITION DENIED.
8