Filed: Oct. 31, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1967 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, versus MELVIN DAVIS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. No. 05-1998 MELVIN DAVIS, Petitioner, versus NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petitions for Review of an Order of the Benefits Review Board. (03-184) Argued: September 20, 2006 Decided: October
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1967 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, versus MELVIN DAVIS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. No. 05-1998 MELVIN DAVIS, Petitioner, versus NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petitions for Review of an Order of the Benefits Review Board. (03-184) Argued: September 20, 2006 Decided: October ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1967
NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COMPANY,
Petitioner,
versus
MELVIN DAVIS; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
No. 05-1998
MELVIN DAVIS,
Petitioner,
versus
NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COMPANY; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petitions for Review of an Order of the Benefits Review Board.
(03-184)
Argued: September 20, 2006 Decided: October 31, 2006
Before WILKINS, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Petitions denied by unpublished per curiam opinion.
ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK,
P.C., Newport News, Virginia, for Petitioner/Cross-Respondent
Newport News Shipbuilding and Dry Dock Company. Gregory Edward
Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for
Respondent/Cross-Petitioner Melvin Davis. ON BRIEF: Charlene
Parker Brown, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia,
for Respondent/Cross-Petitioner Melvin Davis.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Newport News Shipbuilding and Dry Dock Company (“the Company”)
petitions for review of an order of the Benefits Review Board
(Board) affirming the finding of an administrative law judge (ALJ)
that Melvin Davis’ occupational back injury caused a permanent
disability, thus entitling Davis to benefits under the Longshore
and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901–950 (West
2001 & Supp. 2006). Because the challenged finding is supported by
substantial evidence, we deny the petition.
I.
Davis was employed by the Company in its shipyard from 1971 to
1989. While working as a crane operator in March 1987, Davis
injured his back when he attempted to move a hook and chain
weighing approximately 50 pounds. Davis reported the injury to his
supervisor and later went to the Company’s medical clinic.
After initially treating Davis, the clinic doctor advised him
to consult an outside physician. Davis contacted Dr. James L.
Phillips, an orthopedist who began treating Davis. Based on
numerous examinations of Davis and Davis’ continuing complaints of
back pain, Dr. Phillips ultimately diagnosed Davis with chronic
back strain and placed him on various work restrictions, including
limitations on lifting, bending, and stooping.
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Although Davis returned to work intermittently after his
injury, he was terminated in May 1989 because the Company did not
have work available to him within his restrictions. Based on
stipulations by Davis and the Company, the District Director of the
Office of Workers’ Compensation Programs issued a compensation
order in October 1990 awarding Davis benefits for various periods
of temporary total and partial disability, including ongoing
payments of temporary total disability benefits until Davis was
able to return to work. Thereafter, the Company paid benefits to
Davis in accordance with the compensation order.
In June 1995, the Company moved to modify the compensation
order, see 33 U.S.C.A. § 922, claiming that Davis was able to work
20 hours per week and therefore was entitled only to temporary
partial disability benefits. Davis asserted, however, that he was
permanently and totally disabled. After an informal conference, a
claims examiner recommended granting the Company’s request for
modification.
In 1999--apparently before any ruling on its original request
for modification--the Company asserted a new basis for
modification, namely, that Davis’ 1987 back injury had long since
healed and thus was not the cause of his disability. The Company
based this argument on opinions from other physicians indicating
that Davis’ back injury should have healed quickly and that there
was no objective medical evidence of a continuing disability
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resulting from the injury. The Company therefore claimed that
Davis was not entitled to benefits for any period after the October
1990 order. Further, the Company argued that even if causation
were established, Davis could perform his pre-injury job as of
October 1990, or alternatively, that he was only partially disabled
and could perform suitable alternate employment.
In April 2000, the ALJ conducted a hearing on the Company’s
request for modification. The ALJ subsequently issued an order
finding, inter alia, that Davis’ 1987 back injury was the cause of
his disability. After reviewing in detail the medical evidence,
the ALJ rejected the Company’s causation argument:
[I]t is noted that neither in 1990 nor 1995 did the
[Company] challenge causation regarding existing
findings. Regardless, these non[-]treating physicians
mainly examined [Davis] on a one-time basis while
Dr. Phillips provided continuing treatment. Davis’
complaints remained constant and I do not find a
reasonable basis on which to conclude that symptoms
completely resolved from the 1987 injury.
J.A. 252. Addressing the Company’s second argument, the ALJ
determined that Davis could no longer perform his pre-injury work
but that he was capable of performing light-duty work. Thus, the
ALJ ordered the Company, inter alia, to pay Davis permanent partial
disability benefits on a continuing basis.
The Company moved for reconsideration of the ALJ’s order,
reiterating its claim that Davis’ 1987 injury was not the cause of
his disability. The ALJ denied reconsideration. While
5
acknowledging certain weaknesses in Davis’ causation evidence, the
ALJ found no basis for changing his prior ruling:
The major argument for [Davis] in this case is the
consistency of the complaints of pain. However, since
1990 the only physician who has felt that there has been
an ongoing process is Dr. Phillips. The opinions from
this physician are inconsistent and vary widely.
As the [Company] has noted Dr. Phillips reported on
January 22, 1993 that [Davis] had no objective impairment
and no further need for medical treatment. In September
of that year the physician stated that Davis could work
four hours a day, and the procedure at the District
Director level in 1995 appears to follow that
recommendation.
Ultimately, the undersigned concludes that the
[Company] almost totally mismanaged this case from 1987
through at least 1995. The [Company’s] current arguments
may have some merit and Davis’ complaints may be somewhat
implausible, but I find no reason to change the decision
in light of statements from [Davis] and from
Dr. Phillips.
Id. at 301.
The Company then appealed the ALJ’s rulings to the Board. In
March 2002, the Board affirmed the ALJ’s finding of causation,
explaining that the ALJ “discussed the medical evidence in detail,
noted the qualifications and bases of all physicians’ opinions, and
acted within his discretion in relying on Dr. Phillips’s opinion as
[Davis’] treating physician.”
Id. at 414. The Board remanded the
case to the ALJ, however, to reconsider when suitable alternate
employment was first available to Davis. After further analysis on
remand, the ALJ adhered to its earlier finding concerning alternate
employment. But, after a second appeal, the Board again remanded
6
for further consideration of this issue. The ALJ once again
adhered to its earlier ruling on remand; after a third appeal, the
Board affirmed the ALJ’s ruling.
II.
The Company challenges the ALJ’s finding, affirmed by the
Board, that Davis’ 1987 occupational back injury was the cause of
his disability after October 1990. See 33 U.S.C.A. § 903(a)
(providing that maritime employees may recover disability benefits
“only if the disability ... results from an injury occurring upon
[or adjacent to] the navigable waters of the United States”). In
reviewing the Board decision, we must determine “whether the Board
observed its statutorily-mandated standard for reviewing the ALJ’s
factual findings.” Newport News Shipbuilding & Dry Dock Co. v.
Stallings, 250 F.3d 868, 871 (4th Cir. 2001) (internal quotation
marks omitted). That standard requires the Board to determine
whether the ALJ’s factual findings are “supported by substantial
evidence in the record considered as a whole.” 33 U.S.C.A.
§ 921(b)(3). Substantial evidence is “more than a scintilla but
less than a preponderance, and such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Norfolk Shipbuilding & DryDock Corp. v. Faulk,
228 F.3d 378, 380-81
(4th Cir. 2000) (per curiam) (internal quotation marks & citation
omitted). Further, the ALJ’s findings “may not be disregarded on
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the basis that other inferences might have been more reasonable.
Deference must be given the fact-finder’s inferences and
credibility assessments, and we have emphasized the scope of review
of ALJ findings is limited.” Newport News Shipbuilding & Dry Dock
Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988).
The Company argues that the ALJ erred in crediting
Dr. Phillips’ opinion over the contrary opinions of other
physicians. As the Company points out, and as the ALJ
acknowledged, Dr. Phillips’ diagnosis of Davis’ condition and the
work restrictions he assigned to Davis varied over the course of
Davis’ treatment. Nevertheless, the record as a whole reflects a
continuous belief by Dr. Phillips that Davis sustained an ongoing
disability as a result of his 1987 injury. This belief was based
on Dr. Phillips’ many physical examinations of Davis--beginning
shortly after his injury and continuing over several years--and on
Davis’ recurring complaints of back pain. Although Dr. Phillips’
precise diagnosis of Davis’ back problem varied somewhat, the
record indicates that Dr. Phillips eventually settled on a primary
diagnosis of chronic back strain with radicular symptoms.
See, e.g., J.A. 603 (letter from Dr. Phillips stating that “Mr.
Davis has a 20% permanent whole body disability as the result of
chronic back strain with radicular symptoms which are caused by
lifting a heavy chain and hook at work on 3/11/87”). And, while
the specific work restrictions that Dr. Phillips imposed on Davis
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varied over time, Dr. Phillips apparently maintained restrictions
throughout his treatment of Davis.
To be sure, the record contains significant evidence from
other physicians indicating that Davis’ 1987 injury was not the
cause of his alleged disability. For example, Dr. James E. Lesnick
observed, after examining Davis, that “he has no physical signs nor
studies to corroborate his complaint of pain.” Id. at 677.
Dr. Richard K. Neal opined that Davis’ 1987 injury “consisted of a
low back muscular strain injury,” that Davis “should have made a
good and complete recovery from this injury by July 1, 1987,” and
that he had no “permanent disability secondary to his injury at
work of March 11, 1987.”
Id. at 687. Dr. Neal also stated that,
based on the objective evidence of Davis’ condition, his subjective
complaints of pain were “markedly exaggerated.”
Id. at 688. And,
Dr. Felix M. Kirven observed that Davis had “no objective evidence”
to support his complaints of back pain but did have “a multitude of
signs of symptom magnification.”
Id. at 878. Dr. Kirven thus
determined that Davis had “no permanent nor partial disability as
it relates to the March 11, 1987 back injury.”
Id. at 879.
Despite this contrary evidence, we conclude that the ALJ acted
within its discretion in crediting the opinion of Dr. Phillips--who
began treating Davis soon after his injury and continued treating
him for several years thereafter--over the opinions of other
physicians who treated Davis on a much more limited basis and, in
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some cases, not until many years after the injury. See Mitchell v.
Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (per curiam) (noting
general rule that treating physician’s opinion “is entitled to
great weight for it reflects an expert judgment based on a
continuing observation of the patient’s condition over a prolonged
period of time”). By reviewing the conflicting medical evidence
and choosing to credit Dr. Phillips’ opinion based on his
continuing treatment of Davis, the ALJ “provide[d] a sufficient
explanation for [his] rationale in crediting [that] evidence.”
Bill Branch Coal Corp. v. Sparks,
213 F.3d 186, 190 (4th Cir. 2000)
(internal quotation marks omitted); see Stiltner v. Island Creek
Coal Co.,
86 F.3d 337, 342 (4th Cir. 1996) (“We defer to the ALJ’s
evaluation of the proper weight to accord conflicting medical
opinions.”). We therefore conclude that substantial evidence
supports the ALJ’s finding that Davis’ back injury caused his
disability.1
1
The Company also contends that the ALJ erred in considering
that the Company had failed to contest causation in earlier
proceedings. The extent to which the ALJ’s causation ruling
actually relied on this point is unclear. Nevertheless, based on
the record here--reflecting a nearly ten-year delay by the Company
in raising the causation issue, and the fact that much of the
causation evidence the Company now relies on was available
earlier--we cannot say that the ALJ erred in considering this
delay as one factor in declining to modify the 1990 compensation
order based on the newly alleged lack of causation.
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III.
For the reasons set forth above, we deny the Company’s
petition for review.2
PETITION DENIED
2
In his cross-petition, Davis argues that the Board
erroneously considered one of the Company’s appeals on the merits
despite the filing of an untimely notice of appeal and therefore
that we lack jurisdiction over this case. The Board concluded,
however, that the notice was timely filed, based on the Company’s
certificate of service and internal postmark. See 20 C.F.R.
§ 802.207(b) (2006). We find no error in this ruling and
accordingly deny Davis’ cross-petition.
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