C & D Production Services v. Director ( 2010 )


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  •      Case: 09-60485     Document: 00511091160          Page: 1    Date Filed: 04/26/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 26, 2010
    No. 09-60485                           Lyle W. Cayce
    Summary Calendar                              Clerk
    C & D PRODUCTION SERVICES; ZURICH NORTH AMERICA,
    Petitioners
    v.
    DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
    DEPARTMENT OF LABOR; CLAUDIA S. CAMPBELL, Widow of John D.
    Campbell,
    Respondents
    Petition for Review of an Order of the
    Benefits Review Board
    (08-0706 & 08-0852)
    Before SMITH, DENNIS, and OWEN, Circuit Judges.
    PER CURIAM:*
    Petitioners C & D Production Services (“Employer”) and Zurich North
    America petition for review of a final order of the Benefits Review Board
    awarding benefits to the widow of John D. Campbell (“Campbell”). Campbell
    worked as an offshore mechanic for Employer and, while on an offshore
    platform, suffered a heart attack that caused his death. The Administrative
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-60485       Document: 00511091160         Page: 2     Date Filed: 04/26/2010
    No. 09-60485
    Law Judge (“ALJ”) found that his widow, Claudia S. Campbell (“Claimant”),
    was entitled to death benefits under the Longshore and Harbor Workers
    Compensation Act (“LHWCA”). The Board affirmed the ALJ’s decision. For the
    reasons set forth below, we deny the petition for review.
    Petitioners first argue the Board erred in concluding that Claimant carried
    her burden of proving that working conditions existed that could caused,
    aggravated, or accelerated the heart attack. We disagree. “It is well settled that
    a heart attack suffered in the course and scope of employment is compensable
    even though the employee may have suffered from a related preexisting
    condition.” Gooden v. Director, Office of Worker’s Compensation Programs, 
    135 F.3d 1066
    , 1069 (5th Cir. 1998). In the case of a heart attack, the injury or
    accident “‘arises out of the employment when the required exertion producing
    the injury is too great for the man undertaking the work; and the source of the
    force producing the injury need not be external.’” 
    Id.
     (quoting Southern
    Stevedoring Co. v. Henderson, 
    175 F.2d 863
    , 866 (5th Cir. 1949)). Here, there
    was substantial evidence that Campbell’s work on the platform the day of his
    injury precipitated the heart attack, including evidence showing that Campbell
    traveled up and down hundreds of feet of stairs and expert medical testimony
    establishing the requisite causation between that activity and his heart attack.1
    1
    Petitioners contend the instant case is analogous to Ortco Contractors, Inc. v.
    Charptentier, 
    332 F.3d 283
     (5th Cir. 2003), in which we held the employee's heart attack was
    a non-compensable injury because, while the attack concluded 15 minutes after he began work,
    the employee's "heart attack began in the evening while he was at home, continued there
    throughout the night and early morning, and finally concluded in the fatal cardiac arrest 15
    minutes into his morning work." 
    Id. at 291
    . Unlike Ortco, the Benefits Review Board’s
    decision is supported by expert medical opinion that the strenuous work activities Campbell
    performed on the day of his death, most notably the climbing of over two-hundred feet of
    stairs, was a precipitating cause of the heart attack. This evidence supports the finding that
    Campbell’s injury “occurred in the course of employment or was caused, aggravated, or
    accelerated by conditions at the work place.” 
    Id.
     at 287 (citing Conoco v. Director, Office of
    Worker’s Compensation Programs, 
    194 F.3d 684
    , 687 (5th Cir. 1999)).
    2
    Case: 09-60485    Document: 00511091160       Page: 3   Date Filed: 04/26/2010
    No. 09-60485
    Petitioners next argue that the Board’s attorneys fee award was erroneous
    in multiple respects. First, petitioners claim that the award of fees in the
    amount of $250.00 per hour is unreasonably excessive based on the customary
    rates in the geographic area. In support of this argument, petitioners provide
    only their own unsupported statements as to the appropriate rate and point to
    two administrative decisions finding that $175.00 per hour is a reasonable rate.
    However, these arguments do not demonstrate that the Board abused its
    discretion in awarding fees considering “the necessary work done,” as well as
    “the quality of the representation, the complexity of the legal issues involved,
    and the amount of benefits awarded” in this case. See 
    20 C.F.R. § 702.132
    .
    Second, petitioners contend the Board erred in awarding benefits where
    claimant’s counsel utilized quarter-hour minimum billing periods, specifically
    pointing to billing entries where counsel listed .2 hours for preparation of a letter
    and another .2 hours for attempts to call the claimant. Although we have
    disfavored the use of quarter-hour minimum billing periods, petitioners have not
    shown that the time billed was not an accurate reflection of the time actually
    expended. See Conoco, 
    194 F.3d at 692
     (noting disapproval of quarter-hour
    minimum billing, but affirming award where Board found the billing records
    “represented work actually performed”). Finally, petitioners object to an award
    of fees where opposing counsel engaged in “block billing,” i.e., describing multiple
    activities in only one time entry. Although multiple actions are listed in single
    entries, the Board did not abuse its discretion in finding the entries sufficiently
    specific to satisfy the requirements of 
    20 C.F.R. § 702.132
    .
    Accordingly, we conclude the Board did not err in awarding benefits to the
    claimant, and find no abuse of discretion in its fee award. The petition for
    review is therefore DENIED.
    3
    

Document Info

Docket Number: 09-60485

Judges: Smith, Dennis, Owen

Filed Date: 4/26/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024