PRISCILLA R. OWEN, Circuit Judge.
Island Operating Company and its carrier, the Louisiana Workers' Compensation Corporation (collectively, Island) have petitioned this court to review a modification of a benefits award under the Longshore and Harbor Workers' Compensation Act (LHWC Act). Island asks that we reverse the modified decision because the original judgment was not eligible for modification or alternatively, because the facts do not support the modification. We affirm.
In January 2006, Martin B. Taylor, Jr. (Taylor) was working offshore for Island on an oil production platform when his right knee popped as he was crossing the deck. Over the next month, Island sent Taylor to two different physicians and an orthopaedic surgeon, all of whom pronounced that he would progress back to full-time work. It was during this time that Taylor began to experience pain in his left knee as well. Taylor performed light duty work for Island until late May when his employment was terminated. Following his termination, Taylor continued to experience pain in both knees so he consulted another orthopaedic surgeon, Dr. John Fairbanks, who performed surgery on Taylor's knees. Despite the surgery, Taylor continued to suffer from pain in both knees.
In May 2006, Taylor filed a claim for benefits under the LHWC Act. The administrative law judge (ALJ) initially denied the claim, finding that Taylor's condition had been caused by preexisting arthritis and not a traumatic work-related incident. The Benefits Review Board (BRB) reversed and remanded, explaining that proof of a traumatic injury was unnecessary because preexisting conditions that are aggravated by a claimant's work are covered by the LHWC Act. The ALJ then awarded Taylor temporary partial disability benefits and temporary total disability benefits for two periods prior to September 16, 2006—the date at which the ALJ determined Taylor's condition had reached "maximum medical improvement" (MMI). The ALJ explained that except for the period from August 9, 2006 to September 16, 2006 when Dr. Fairbanks took Taylor off work, Taylor was not completely disabled because Island had established that suitable alternative employment was available.
In January 2010—within the mandated one-year period—Taylor filed a modification application to seek benefits for permanent partial disability. The issues are whether, and to what extent, Taylor's knees were impaired after reaching MMI on September 16, 2006. Taylor submitted reports from two physicians, Dr. Fairbanks and Dr. Murphy, which both found that Taylor had a 25-percent permanent disability in each knee. On this basis, the ALJ granted Taylor's modification petition. Though Island argued—and the ALJ acknowledged—that "the impairment ratings used as evidence . . . to establish his modification were arguably available at the time of the original hearing," the ALJ concluded that "a modification can be granted based upon previously available evidence." Therefore, the ALJ modified the previous judgment to include permanent partial disability benefits commensurate with a 25-percent impairment of each knee to commence on September 16, 2006.
Island appealed this decision to the BRB, which affirmed. Explaining that the modification provision was intended to replace finality with accuracy, it held that
We review appeals from BRB decisions to correct errors of law and to determine whether the BRB properly deferred to the ALJ's factfinding.
As to disputed issues of fact, like the BRB, "[w]e may not substitute our judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may only determine whether evidence exists to support the ALJ's findings."
Island first argues that Taylor's claim was never eligible for modification because he never satisfied the legal predicate necessary to invoke this action. Island argues in the alternative that even if reopening the claim was appropriate, the modification decision was not supported by the facts. We address each challenge in turn.
The threshold issue is whether Taylor has established sufficient grounds to invoke a modification of a prior judgment under the LHWC Act.
Island urges that a mistake of fact can serve as grounds for modification only if it is based on completely new and previously unattainable evidence. To hold otherwise, it argues, would permit claimants to relitigate claims under the guise of § 22, which would compromise judicial finality. Because the testimony of both physicians was available at the time of Taylor's original hearing, Island asserts that this evidence cannot support a mistake and therefore, that modification of the judgment is not available.
The Supreme Court, however, has expressly permitted modification under these circumstances. In Banks v. Chicago Grain Trimmers Ass'n,
Significantly, the Court did not discuss whether the survivor-claimant could have discovered the eyewitness before the first hearing. Rather, it upheld the modification award because "nothing in [§ 22's] legislative history [] support[ed] the [] argument that a `determination of fact' means only some determinations of fact and not others."
The Court revisited § 22 in O'Keeffe v. Aerojet-General Shipyards, Inc.,
Island asserts, however, that even if § 22 was intended to favor justice over finality, the Court's interpretation ignores finality altogether. Despite the one-year limitations period, a claimant can theoretically create endless litigation by continuously moving to modify an award within a year of the previous modification. While we acknowledge Island's concerns, the remedy lies with Congress and not with this court. In Metropolitan Stevedore Co. v. Rambo,
In sum, both Banks and O'Keeffe clearly establish that contrary to Island's position, mistakes of fact are not limited to newly discovered and previously unattainable evidence. Therefore, we affirm the BRB's decision on this basis.
Island next argues that even if Taylor presented a legally sufficient claim to reopen his award, the facts do not support the modification he received. As noted earlier, this court does not reweigh or reappraise evidence but only determines whether evidence exists to support the ALJ's findings.
For the foregoing reasons, the BRB's decision is AFFIRMED.