Filed: Apr. 24, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 02-60975 Summary Calendar _ FOURCHON WELDING CONTRACTORS INC; LOUISIANA WORKERS’ COMPENSATION CORP Petitioners v. DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR Respondent _ Petition for Review from an Administrative Decision of the Benefits Review Board BRB No. 02-0394 _ Before KING, Chief Judge, and DeM
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 02-60975 Summary Calendar _ FOURCHON WELDING CONTRACTORS INC; LOUISIANA WORKERS’ COMPENSATION CORP Petitioners v. DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR Respondent _ Petition for Review from an Administrative Decision of the Benefits Review Board BRB No. 02-0394 _ Before KING, Chief Judge, and DeMO..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
____________________
No. 02-60975
Summary Calendar
____________________
FOURCHON WELDING CONTRACTORS INC; LOUISIANA WORKERS’
COMPENSATION CORP
Petitioners
v.
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR
Respondent
_________________________________________________________________
Petition for Review from an Administrative
Decision of the Benefits Review Board
BRB No. 02-0394
_________________________________________________________________
Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Petitioners Fourchon Welding Contractors, Inc. (“Fourchon
Welding”) and Louisiana Workers’ Compensation Corporation
(“LWCC”) seek review of an administrative decision of the U.S.
*
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that this opinion should not be published and is not precedent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.
Department of Labor Benefits Review Board (“BRB”). On appeal,
Fourchon Welding and LWCC contend that there is no substantial
evidence to support: (1) the administrative law judge (“ALJ”)’s
finding that claimant Aujest J. Cheramie suffered a residual
disability as a result of his accident; and (2) the award of
permanent and total disability benefits. For these reasons,
Fourchon Welding and LWCC urge reversal of the BRB’s affirmance
of the ALJ’s decision and order.1 Based on the facts as
presented in the trial record, we affirm the BRB’s order and deny
the petition for review.
In May 1997, Fourchon Welding hired Cheramie as a temporary
inventory clerk. On August 22, 1997, Cheramie sustained a lumbar
strain while lifting an angle iron. He returned to work for
approximately one week after the accident, but he subsequently
sought medical treatment. Thereafter, Cheramie brought suit
against Fourchon Welding, alleging his entitlement to relief
under the Longshore and Harbor Workers’ Compensation Act (“Act”),
33 U.S.C. § 901 (2000).
After conducting a trial, the ALJ found that Cheramie was
permanently and totally disabled. Fourchon Welding then appealed
the ALJ’s decision to the BRB. The BRB held that the ALJ erred
in finding that Cheramie had established a prima facie case of
1
Respondent, Director, Office of Worker’s Compensation
Programs, United States Department of Labor, opted not to
participate in the appeal of this case and hence, did not file a
brief in response to the petition for review.
2
total disability without first finding that he had a residual
work-related medical impairment. However, the BRB did find that
Cheramie could invoke the 33 U.S.C. § 920(a) (“section 20(a)”)
presumption that his continuing back condition was causally
related to his employment. The BRB vacated the ALJ’s decision
and remanded the case for the ALJ to determine whether the
employer had provided sufficient evidence to rebut the section
20(a) presumption, and if so, to resolve the issue of causation
on the basis of the entire record.
On remand, the ALJ determined that Fourchon Welding had
produced substantial evidence to rebut the section 20(a)
presumption. The ALJ nevertheless accepted Cheramie’s testimony
that his continuing back pain prevented him from obtaining
meaningful work. This testimony was corroborated by documentary
evidence depicting Cheramie’s post-injury condition.
Accordingly, the ALJ awarded Cheramie continuing permanent total
disability benefits.
Upon reviewing the ALJ’s decision and order on remand, the
BRB affirmed the ALJ’s findings of fact and conclusions of law.
The BRB determined that Fourchon Welding had not demonstrated
that the ALJ’s decision to credit Cheramie’s testimony was
“inherently incredible or patently incredible.” According to the
BRB, affirmance of the ALJ’s award of total disability benefits
was appropriate because Cheramie made out his prima facie case of
3
total disability and Fourchon Welding had not established the
availability of suitable alternative employment.
In their petition for review, Fourchon Welding and LWCC
assert that the ALJ’s decision: (1) is not supported by medical
evidence; (2) completely discounts the physician’s release of
Cheramie without restriction; and (3) relies entirely on
Cheramie’s allegedly untrustworthy testimony. This court is
bound to uphold the ALJ’s decision provided that it is supported
by substantial evidence and is in accordance with the law. E.g.,
Ledet v. Phillips Petroleum Co.,
163 F.3d 901, 904 (5th Cir.
1998) (footnote omitted).
Contrary to Fourchon Welding and LWCC’s assertions, there is
substantial evidence, based on testimony from several medical
specialists, indicating that Cheramie sustained a residual
disability as a direct consequence of the August 1997 accident.
This evidence supports the ALJ’s finding of permanent disability.
See
id. at 905 (“An employee is considered permanently disabled
when he has any residual disability following the date of maximum
medical improvement.”). Thus, the ALJ did not err in finding
that Cheramie suffered a permanent disability.
Moreover, there is also substantial evidence supporting the
ALJ’s finding that Cheramie “can no longer return to his former
longshore job due to his job-related injury,” thereby permitting
him to establish a prima facie case of total disability under the
Act. New Orleans (Gulfwide) Stevedores v. Turner,
661 F.2d 1031,
4
1038 (5th Cir. Unit A Nov. 1981), cited with approval in
Ledet,
163 F.3d at 905 n.11.2 Further, Fourchon Welding and LWCC do not
attempt to demonstrate that they offered Cheramie suitable
alternative employment, an effort which would rebut his prima
facie case of total disability. See, e.g.,
id. Hence, we
conclude that the ALJ did not err in finding that Cheramie
suffered a total disability.
Because there is substantial evidence in the record
supporting the ALJ’s finding that Cheramie suffered a residual
disability as a result of his on-the-job accident, as well as the
ALJ’s award of permanent and total disability benefits, we find
no reversible error. For the above reasons, the order of the BRB
is AFFIRMED, and the petition for review is DENIED.
2
Because the Turner standard and the Supreme Court’s
standard for disability enunciated in Metropolitan Stevedore Co.
v. Rambo,
521 U.S. 121, 127 (1997) (“Disability [under the Act]
is a measure of earning capacity lost as a result of a work-
related injury.... [T]he statute makes it clear that disability
is the product of injury and opportunities in the job market.”),
compliment one another, a prima facie showing of total disability
under Turner should also satisfy the less demanding Rambo
standard. Fourchon Welding and LWCC concede as much.
5