Filed: Mar. 17, 2006
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 March 17, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 05-60324 Summary Calendar _ FRIEDE GOLDMAN OFFSHORE; ZURICH AMERICAN INSURANCE COMPANY Petitioners v. DAVID CHANDLER; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR Respondents _ Petition for Review: Benefits Review Board No. 04-551 _ Before KING, WIENER, and DEMOSS, Circuit Judges. PER CURIAM:* Petitio
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 17, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 05-60324 Summary Calendar _ FRIEDE GOLDMAN OFFSHORE; ZURICH AMERICAN INSURANCE COMPANY Petitioners v. DAVID CHANDLER; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR Respondents _ Petition for Review: Benefits Review Board No. 04-551 _ Before KING, WIENER, and DEMOSS, Circuit Judges. PER CURIAM:* Petition..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 05-60324
Summary Calendar
____________________
FRIEDE GOLDMAN OFFSHORE; ZURICH AMERICAN INSURANCE COMPANY
Petitioners
v.
DAVID CHANDLER; DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR
Respondents
_________________________________________________________________
Petition for Review:
Benefits Review Board
No. 04-551
_________________________________________________________________
Before KING, WIENER, and DEMOSS, Circuit Judges.
PER CURIAM:*
Petitioners Friede Goldman Offshore and Zurich American
Insurance Company seek review of an administrative action. For
the reasons provided below, this petition for review is DENIED.
I. BACKGROUND
*
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that this opinion should not be published and is not precedent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.
Respondent David Chandler (“Chandler”) was employed by
petitioner Friede Goldman Offshore (“Friede Goldman”) as a welder
at Friede Goldman’s shipyard at Port Bienville, Mississippi. On
October 15, 2001, during the course of his employment, Chandler
fell from a collapsing scaffold. After losing consciousness,
Chandler was immediately treated for a closed head injury and
trauma to his back, hip, and knee. Over the next few months,
Chandler was referred to various orthopedists. He returned to
light duty work with Friede Goldman on October 28, 2001, and he
continued to work in Friede Goldman’s tool room and electrical
shop without loss of pay until April 25, 2002, when Friede
Goldman closed its facilities.
In November 2001, Dr. R.A. Graham (“Graham”) discovered that
Chandler had torn his meniscus. He recommended surgery, and he
provided Friede Goldman’s safety administrator with a work
release for Chandler. In December 2001, Dr. Charles Winters
(“Winters”) confirmed Chandler’s meniscal tear and determined
that Chandler also suffered from a herniated disc. Winters
performed arthroscopic surgery on Chandler’s knee on January 7,
2002, and he recommended lumbar epidural steroid injections for
his back condition on January 30, 2002. At his administrative
hearing, Chandler testified that Winters’s surgery was
unsuccessful in relieving the pain in his knee. Although Friede
Goldman refused to authorize medical payments, Chandler continued
2
to seek further treatment for both his knee and back pain.1 On
April 15, 2003, Dr. Joe Jackson (“Jackson”) determined that
Chandler’s chronic back pain and intermittent leg pain were both
attributable to his injured disc.
After Friede Goldman’s facilities closed, Chandler was hired
by Tanco Engineers (“Tanco”) as a welder. Chandler worked for
Tanco until November 30, 2002, when his continuing back pain
forced him to quit. On November 11 and 26, 2002, just before he
quit his job at Tanco, Chandler received steroid injections from
Dr. Thomas Trieu (“Trieu”) in both his knee and his back in an
unsuccessful attempt to arrest the progressive deterioration of
his condition. After quitting his job at Tanco, Chandler took up
a less physically demanding position as a part-time helper with
R.A. Braun Construction, but his condition failed to improve. On
April 3, 2003, Jackson told Chandler that he would need to be
retrained because his back injury would never permit him to
resume his career as a welder.
As a result of his injuries, Chandler filed a claim for
benefits under the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. § 901 et seq., against Friede Goldman and
its insurer Zurich American Insurance Company. This claim was
referred to the Department of Labor’s Office of Administrative
1
Friede Goldman approved Graham’s initial evaluation, but
withdrew its authorization for Winters’s surgery on January 6,
2002.
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Law Judges for a formal hearing, which was held on September 12,
2003, in Metairie, Louisiana.
At the formal hearing, Friede Goldman argued that Chandler
had failed to file a timely claim as required by section 13 of
the LHWCA (“section 13”), 33 U.S.C. § 913. Section 13 states
that
the right to compensation for disability or death under
this chapter shall be barred unless a claim therefore is
filed within one year after the injury or death. . . .
The time for filing a claim shall not begin to run until
the employee or beneficiary is aware, or by the exercise
of reasonable diligence should have been aware, of the
relationship between the injury or death and the
employment.
33 U.S.C. § 913(a) (2000). Friede Goldman contended that
Chandler failed to file a written claim valid under the LHWCA’s
filing requirements prior to November 18, 2002, when Chandler’s
attorney wrote a letter to a claims adjuster requesting an
informal conference. On the other hand, Friede Goldman argued
that Chandler knew or should have known the extent of his
disabling injury and its impact on his future employment on
November 6, 2001, when Dr. Graham recommended surgery, over a
year before the earliest valid filing date. Therefore, Friede
Goldman argued that Chandler’s right to compensation was time-
barred by section 13.
In response, Chandler argued that his claim was timely filed
on October 17, 2001, over a year before Friede Goldman’s date,
when one of his earliest doctor’s bills was provided to a claims
4
adjuster and filed with the Department of Labor. In addition,
Chandler also argued that he did not become aware of the full
extent of his injury and its relation to his future employment
until November 30, 2002, when his back pain forced him to quit
welding for Tanco; therefore, even if his claim was not properly
filed until November 2002, it remained timely because he lacked
the requisite awareness of his injury until that time.
On March 5, 2004, the administrative law judge (“ALJ”)
issued his decision granting Chandler the benefits sought in his
claim. In this decision, the ALJ accepted Chandler’s first
argument and found that the medical bill Chandler’s attorney
provided to the claims adjuster and filed with the Department of
Labor on October 17, 2001, constituted a claim for medical
treatment valid for the timeliness purposes of section 13. After
reviewing Chandler’s medical records and his work history, the
ALJ also credited Chandler’s testimony that he did not become
aware of the full extent of his injury and his related loss of
earning potential until November 30, 2002. As a result, the ALJ
found that even if the October 2001 medical bills did not
constitute a valid filing, Chandler’s later claim was timely and
fell within section 13’s one-year limit. Accordingly, the ALJ
granted Chandler’s claims for disability and medical
compensation.
Friede Goldman appealed to the Department of Labor’s
Benefits Review Board (“BRB”), challenging the ALJ’s finding that
5
Chandler’s claim was timely filed, as well as the ALJ’s average
weekly wage and post-injury wage-earning determinations. On
March 22, 2005, the BRB filed its per curiam decision, affirming
the ALJ’s decision. More specifically, the BRB affirmed the
ALJ’s determination that Chandler was not aware of the full
extent of his injury until November 30, 2002, when his continuing
back pain forced him to quit working for Tanco. Therefore, the
BRB also affirmed the ALJ’s finding that the claim for
compensation Chandler filed was timely because it was filed
within one year of the date Chandler became aware of the full
extent of his injury. The BRB also affirmed the ALJ’s average
weekly wage and post-injury wage-earning determinations.2
II. DISCUSSION
This court has jurisdiction over this petition for review
pursuant to 33 U.S.C. § 921(c). We review the decisions of the
BRB for errors of law and to determine whether the BRB correctly
concluded that the ALJ’s order “was supported by substantial
evidence on the record as a whole and is in accordance with the
law.” Ingalls Shipbuilding, Inc. v. Dir., Office of Workers’
Comp. Programs, 991 F.2d 163, 165 (5th Cir. 1993) (quoting
Avondale Indus. v. Dir., Office of Workers’ Comp. Programs,
977
F.2d 186, 189 (5th Cir. 1992)). The sole issue presented by this
2
In their petition for review with this court, the
petitioners do not challenge these administrative wage and wage-
earning determinations, focusing solely upon the administrative
finding that Chandler’s claim was timely.
6
petition for review is whether the BRB erred in affirming the
ALJ’s determination that Chandler’s claim for compensation
benefits was timely filed.
The timeliness of a claim is presumed under the LHWCA, and
the burden to show that a claim was not filed rests on employers
such as Friede Goldman. 33 U.S.C. § 912(b)(2) (2000); Avondale
Shipyards Inc. v. Vinson, 623 F.2d 1117, 1119-21 (5th Cir. 1981).
For the statute’s one-year limitation to run against a claimant
such as Chandler, “he must know (or should know) the true nature
of his condition, i.e., that it interferes with his employment by
impairing his capacity to work, and its causal connection with
his employment.” Marathon Oil Co. v. Lunsford,
733 F.2d 1139,
1141 (5th Cir. 1984).
In their briefs before this court, the petitioners argue
that because Chandler had sustained previous injuries and had
completed two years of college, he should reasonably have
expected some loss of wage-earning capacity after his initial
consultation with Dr. Graham in November 2001. We disagree. The
ALJ rationally determined, after carefully examining Chandler’s
work history and medical records, that Chandler did not become
aware of the full extent of his injuries until November 2002. As
the BRB correctly concluded, this finding fully accords with the
text of the LHWCA and the prior holdings of this court. See,
e.g., Lunsford, 733 F.2d at 1141 (refusing to apply the LHWCA
7
statute of limitations, even though the clamaint took three weeks
of leave after the initial injury, because the initial injury was
not seen as having any significant effect upon his future earning
capacity). This finding is also supported by substantial
evidence in the record, including, but not limited to, the
depositions of Trieu and Winters. Contrary to petitioners’
suggestions, we see no reason to conclude that either Chandler’s
medical history or his educational background afforded him
special insights that should have superseded the advice and
diagnoses of his physicians.
III. CONCLUSION
For the reasons stated above, the petition for review is
DENIED.
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