Smith v. DOWCP ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-60775
_____________________
COOPER T. SMITH; HOME INDEMNITY CO., INSURANCE CARRIER,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Benefits Review Board
(94-3926)
_________________
________________________________________________
March 27, 1998
Before KING and JONES, Circuit Judges, and KENDALL, District
Judge.*
PER CURIAM:**
Petitioners Cooper T. Smith, Inc. and Home Indemnity Company
have petitioned for review of an Order of the Benefits Review
Board denying petitioners’ request for relief pursuant to section
8(f) of the Longshore Workers’ Compensation Act, 33 U.S.C.
*
District Judge for the Northern District of Texas,
sitting by designation.
**
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this opinion should not be published and is not precedent except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.
§ 908(f). For the reasons set forth below, we affirm the
judgment of the Benefits Review Board.
I. FACTUAL BACKGROUND
On October 28, 1984, Arthur Hudson, an employee of Cooper T.
Smith, Inc., injured himself while driving a forklift. Hudson
drove the forklift into a piece of lumber, causing the forklift
to turn suddenly. The force of the impact threw Hudson against
the forklift, and he consequently suffered injuries to his neck
and left shoulder.
On February 20, 1983, approximately a year and a half prior
to his employment-related injury, Hudson underwent a urological
evaluation which resulted in a diagnosis of hematuria (blood in
the urine). At the time of his admission to the hospital for the
urological evaluation, Hudson complained that he had been
experiencing neck pain that radiated into his left arm and hand
for the preceding two months. Hudson reported that he had
suffered a neck trauma and a bullet wound in his right shoulder
some years earlier.
Dr. Diane S. Gelfand examined Hudson on February 23, 1983,
and ordered a cervical spine x-ray, an EMG, and a bone scan. On
February 24, 1983, Dr. Milton J. Guiberteau examined the x-rays
of Hudson’s cervical spine and identified no focal abnormalities.
On February 25, 1983, Dr. Ariel Bar-Sela performed the EMG that
Dr. Gelfand had ordered and concluded that the results were
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normal. Dr. Bar-Sela also indicated that the EMG results for
Hudson’s left shoulder were “peculiar, but certainly not
characteristic of radiculopathy,” a diseased condition of the
spinal nerve roots. Dr. Bar-Sela diagnosed Hudson with
myofascial pain syndrome but noted that he had experienced no
loss of muscle strength. Thereafter, Hudson received physical
therapy to relieve the pain in his shoulder and neck six times
between February 28, 1983 and March 7, 1983. After his physical
therapy, Hudson worked for Cooper T. Smith, Inc. without medical
treatment or restrictions until the time of his employment-
related injury.
Following his employment-related injury, a number of
physicians examined Hudson. On April 10, 1985, Hudson underwent
a new battery of x-rays of his cervical spine. Dr. J.E. Martin,
the radiologist who reviewed the results stated that they
revealed “some straightening of the usual cervical spine” and
osteophyte formation “not significantly different” than that
revealed by x-rays taken prior to Hudson’s employment-related
injury. Dr. Roland Jackson later examined Hudson and concluded
that the pain suffered by Hudson resulted from “nerve root
compression [in Hudson’s neck] due to degenerative changes
aggravated by injury.” On March 10, 1986, Dr. Antonio A. Moure
examined Hudson and diagnosed his condition as cervical
spondylosis that had been aggravated by trauma. Dr. Moure
ordered a CT scan that revealed “degenerative bone and disc
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disease throughout the majority of the visualized cervical
spine.” He then performed an operation on Hudson’s neck--an
anterior discectomy--and eventually discharged Hudson from his
care with a permanent partial disability of approximately 20% of
his person as a whole.
Hudson was later referred to Dr. Jeffrey Tucker for
diagnosis and treatment of his shoulder pain. Dr. Tucker
recommended surgery--a subacromial decompression--on Hudson’s
left shoulder. Hudson underwent this procedure and continued
follow-up visits with Dr. Tucker. In November of 1991, Dr.
Tucker concluded that Hudson had reached his maximum medical
improvement from the surgery, and had a permanent impairment of
7% in his left arm and 4% in his person as a whole.
II. PROCEDURAL BACKGROUND
After his work-related injury, Hudson filed a claim for
worker’s compensation under the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C. §§ 901-950. Cooper T. Smith,
Inc. and its workers’ compensation insurance carrier, Home
Indemnity Company (collectively Smith), timely filed an
application seeking relief from full liability under section 8(f)
of the LHWCA, id. § 908(f).
The first formal hearing was held before Administrative Law
Judge Quentin P. McColgin on October 26, 1989. Judge McColgin
entered an order granting Hudson benefits on January 11, 1991
4
based on his conclusion that Hudson had reached maximum medical
improvement of his neck on October 8, 1986. Because Hudson also
suffered from a shoulder injury that could only be remedied by
surgery, Judge McColgin concluded that Hudson was temporarily and
totally disabled pending maximum medical recovery from the
shoulder surgery. Because Judge McColgin made no finding of
permanent disability, he declined to address the issue of Smith’s
entitlement to partial relief from liability under section 8(f).
On February 17, 1994, after Hudson had undergone his
shoulder surgery, a second formal hearing was held before
Administrative Law Judge George P. Morin. Judge Morin concluded
that Hudson had achieved maximum medical recovery from his
shoulder surgery on November 22, 1991, and that Hudson was
permanently and totally disabled as of that date. Judge Morin
entered an order reflecting the change in Hudson’s disability
status and denying Smith’s request for relief under section 8(f).
Smith timely appealed Judge McColgin’s denial of its request
for relief under section 8(f) to the Benefits Review Board
(“BRB”) pursuant to 33 U.S.C. § 921(b)(3). Because the BRB did
not resolve the appeal within one year and it remained pending on
September 12, 1996, the opinion was considered affirmed on that
date for purposes of obtaining judicial review pursuant to Pub.
L. No. 104-134, § 101(d), 110 Stat. 1321 (Apr. 26, 1996),
reprinted in 1996 U.S.C.C.A.N. 1321 (436-37). Smith timely filed
its petition for review in this court on November 11, 1996.
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III. STANDARD OF REVIEW
This court’s review of decisions of the BRB is fairly
narrow. “In examining the orders of the BRB our role is limited
to ‘“considering errors of law and making certain that the BRB
adhered to its statutory standard of review of factual
determinations, that is, whether the ALJ’s findings of fact are
supported by substantial evidence and consistent with the law.”’”
Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir.
1995) (quoting Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88,
90 (5th Cir. 1990) (quoting Miller v. Central Dispatch, Inc., 673
F.2d 773, 778 (5th Cir. Unit A 1982))). “This court may not
substitute its judgment for that of the ALJ, nor may we reweigh
or reappraise the evidence, but may only inquire into the
existence of evidence to support the ALJ’s factfindings.” Empire
United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir. 1991)
(citations omitted).
IV. DISCUSSION
“Under the traditional ‘aggravation rule’ of workers’
compensation law, an employer is liable for a worker’s entire
disability even though the disability was the result of both a
current employment injury and a pre-existing impairment.” Ceres
Marine Terminal v. Director, Office of Worker's Compensation
Programs, 118 F.3d 387, 389 (5th Cir. 1997); see also Strachan
Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir. 1986) (en
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banc). “Congress enacted section 8(f) of the LHWCA, 33 U.S.C.
§ 908(f), to diminish an employer’s incentive to discriminate
against partially disabled workers out of fear of increased
liability under the aggravation rule.” Ceres Marine Terminal,
118 F.3d at 389.
Section 8(f) places a temporal limitation on an employer’s
obligation to pay worker’s compensation benefits in circumstances
in which “an employee having an existing permanent partial
disability” suffers a subsequent employment-related injury and is
thereby left with a “disability [that] is materially and
substantially greater than that which would have resulted from
the subsequent injury alone.” 33 U.S.C. § 908(f); see also Ceres
Marine Terminal, 118 F.3d at 389. After the employer’s period of
liability expires, payments are made from a “second injury fund”
established by section 44 of the LHWCA, 33 U.S.C. § 944, and
financed by members of the industry covered by the act. See
Ceres Marine Terminal, 118 F.3d at 389.
This court has held that, in order to be entitled to section
8(f) relief from workers’ compensation liability for an
employee’s permanent total disability, an employer must
demonstrate that “(1) the employee had a pre-existing permanent
partial disability, (2) the pre-existing permanent partial
disability was manifest to the employer prior to the current
employment injury, and (3) the current disability was not due
solely to the employment injury.” Id. at 389-90; see also Two
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“R” Drilling Co. v. Director, Office of Workers Compensation
Programs, 894 F.2d 748, 750 (5th Cir. 1990). In this case, the
ALJ concluded that Smith was not entitled to second injury fund
relief because any pre-existing permanent partial disability that
Hudson might have had was not “manifest” at the time of Hudson’s
work-related injury.1 Smith contends that this conclusion was
not supported by substantial evidence and thus that the BRB
should have reversed the ALJ’s judgment.2
In support of its contention that the ALJ erred, Smith
argues that the following facts demonstrate the manifestness of
1
The parties disagree as to whether the ALJ found that
Hudson had a pre-existing permanent partial disability at the
time of his employment-related injury. The ALJ did not reach the
issue of whether Hudson’s current disability was due solely to
the employment-related injury. As indicated, infra, we conclude
that the ALJ’s determination that any pre-existing permanent
partial disability that Hudson may have had was not manifest
prior to his employment-related injury is supported by
substantial evidence. We therefore express no opinion as to
whether Hudson actually had a pre-existing permanent partial
disability within the meaning of section 8(f). We likewise
decline to address Smith’s argument that, as a matter of law,
Hudson’s permanent total disability was not caused solely by his
employment-related injury and that his pre-existing permanent
partial disability contributed to his permanent total disability.
2
Smith also urges us to abandon the manifestation
requirement because it merely constitutes a judicial gloss on
section 8(f). Even if we were inclined to do so, no basis exists
for this panel to reject application of the manifestation
requirement. Other panels of this court have accepted and
applied the manifestation requirement for over twenty years.
See, e.g., Equitable Equip. Co. v. Hardy, 558 F.2d 1192, 1199
(5th Cir. 1977). “In this circuit one panel may not overrule the
decision, right or wrong, of a prior panel in the absence of en
banc reconsideration or superseding decision of the Supreme
Court.” Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th
Cir. 1991) (internal quotation marks and citations omitted).
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Hudson’s pre-existing permanent partial disability: (1) Hudson
experienced two months of radiating pain in his neck, shoulder,
and arm; (2) he was diagnosed with myofascial pain syndrome; and
(3) Dr. Moure testified that Hudson’s medical records prior to
his employment-related accident reflected degenerative changes in
his neck and that these changes were a contributing cause to
Hudson’s neck, shoulder, and arm pain. We conclude that the
presence of these circumstances does not establish that the ALJ’s
decision lacked substantial evidentiary support.
“We have previously recognized that a diagnosed, pre-
existing disability of which the employer has actual knowledge is
manifest.” Ceres Marine Terminal, 118 F.3d at 392. We have also
noted that many other courts have held that an employer’s
constructive knowledge of a permanent partial disability may be
sufficient to establish the manifestness of the disability.3 See
3
It is arguable that, in Ceres Marine Terminal, which
addressed a factual scenario quite similar to the one at issue
here, this court implicitly held that constructive knowledge may
be sufficient to render a disability manifest for purposes of
section 8(f). While the court did not expressly hold that an
employer’s constructive knowledge was sufficient to render an
employee’s disability manifest, it acknowledged that many other
courts have done so and remanded for further consideration of the
manifestness issue by the ALJ. See Ceres Marine Terminal, 118
F.3d at 392. The opinion provides no indication that the record
contained any evidence that the employer had actual knowledge of
the employee’s disability. In the absence of such evidence, it
would have been unnecessary to remand the case to the ALJ for
further consideration if the court had not concluded that
constructive knowledge could be sufficient to render a disability
manifest. However, because we conclude that Smith lacked even
constructive knowledge of any disability that Hudson might have
had prior to his employment-related injury, we need not determine
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id.; Bunge Corp. v. Director, Office of Workers Compensation
Programs, 951 F.2d 1109, 1111 (9th Cir. 1991) (“If the condition
is readily discoverable from the employee’s medical record in the
possession of the employer, knowledge of the condition is imputed
to the employer.”); Director, Office of Workers Compensation
Programs v. Berkstresser, 921 F.2d 306, 310 (D.C. Cir. 1990)
(“When the evidence shows that such a ‘disability’ was
objectively apparent, the ‘manifest’ requirement has been met.”).
Under this approach, “[t]he question is whether the condition was
discoverable by the employer based on then existing medical
records available to it.” Eymard & Sons Shipyard v. Smith, 862
F.2d 1220, 1224 (5th Cir. 1989). We have noted that “[a] clear
diagnosis in such records would, of course, meet this test.” Id.We have also “assume[d], arguendo, that there may be instances
where although a diagnosis as such is not expressly stated in the
medical records nevertheless sufficient unambiguous, objective,
and obvious indication of a disability is reflected by the
factual information contained in the available records so that
the disability should be considered manifest even though actually
unknown to the employer.” Id.Making the same assumption here, we believe that the ALJ
could properly conclude that Hudson’s medical records were not so
whether Ceres Marine Terminal stands for the proposition that
constructive knowledge can establish manifestness or, if it does
not, whether this circuit should adopt such a rule.
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“unambiguous, objective, and obvious” in their indication of a
disability that his pre-existing permanent partial disability, if
any, was manifest to Smith prior to Hudson’s employment-related
injury. The results of the cervical spine x-ray, bone scan, and
EMG that Hudson received prior to his employment-related injury
were largely normal. Dr. Guiberteau concluded that Hudson’s x-
rays revealed no focal abnormalities. Dr. Bar-Sela concluded
that Hudson’s neuromuscular electrodiagnostic study was normal
and that the EMG results for Hudson’s shoulder were “peculiar,
but certainly not characteristic of radiculopathy.” Hudson
received just over a week of physical therapy for his shoulder
and neck pain and then returned to work without medical treatment
or restriction until the time of his employment-related injury.
Smith contends that “the unrefuted deposition testimony of
Dr. Moure that the medical records in this case reflected pre-
existing degenerative changes in [Hudson’s] neck” indicates that
Hudson had a pre-existing permanent partial disability that was
manifest to Smith prior to Hudson’s employment-related injury.
However, Dr. Moure’s report regarding the CT scan that he ordered
for Hudson indicates that Hudson’s medical records prior to his
employment-related injury did not contain “unambiguous,
objective, and obvious indication of a disability.” Eymard &
Sons Shipyard, 862 F.2d at 1224. In that report, Dr. Moure
states the following:
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I am aware of the prior cervical spine MRI study which
was interpreted as normal. Upon reexamination of the
study, I still find it very difficult to identify the
abnormalities observed on the cervical spine CT or the
MR scan. I am at a loss to explain the reason for
differences between the scan findings but the positive
findings on the cervical spine CT should supersede the
presumably erroneous MR study. (emphasis added).
Moreover, even if we were to assume that, based solely upon
Hudson’s medical records prior to his employment-related injury,
Dr. Moure would have diagnosed Hudson with degenerative disc
disease, the ALJ could still properly conclude that any pre-
existing permanent partial disability that Hudson might have had
was not manifest. “The fact that another physician might have
diagnosed the disease is not determinative.” See Eymard & Sons
Shipyard, 862 F.2d at 1224. We therefore conclude that
substantial evidence supports the ALJ’s finding that Hudson’s
pre-existing permanent partial disability, if any, was not
manifest to Smith prior to Hudson’s employment-related injury.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the BRB’s decision to
affirm the judgment of the ALJ.
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