Gulf Best Elec Inc v. Methe

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 1, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-60749
_____________________
GULF BEST ELECTRIC, INC.;
LOUISIANA WORKERS’ COMPENSATION CORP.,
Petitioners-Cross-Respondents,
versus
MICHAEL M. METHE,
Respondent-Cross-Petitioner,
versus
DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U. S. DEPARTMENT OF LABOR,
Respondent-Cross-Respondent.
_________________________________________________________________
Petition for Review from an Administrative
Decision of the Benefits Review Board
_________________________________________________________________
Before JOLLY, WIENER and PICKERING, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from a claim for benefits under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et
seq. (“LHWCA”). Both the claimant, Michael Methe, and the cross-
respondents, Gulf Best Electric, Inc. and the Louisiana Workers’
Compensation Corporation (“LWCC”), filed petitions asking this
court to review various portions of a decision by the Benefits
Review Board (“BRB”) of the Department of Labor. That decision
affirmed in part and modified in part an order by an administrative
law judge (“ALJ”) granting Methe permanent total disability
compensation. Because this court lacks jurisdiction to review the
issues raised by Methe, his petition is DISMISSED. With regard to
the issues raised by Gulf Best and the LWCC, we AFFIRM the BRB’s
decision to apply § 910(a) in calculating Methe’s average weekly
wage, its finding that Methe suffered permanent disability, and its
denial of contribution under § 908(f). We REVERSE the decision of
the BRB as to the date of maximum medical improvement, and REMAND
the case to the BRB to recalculate Methe’s compensation award
accordingly.
I
Michael Methe injured his back in March 2000, while working as
a journeyman electrician for Gulf Best Electric, Inc. He sued Gulf
Best and the LWCC for disability benefits, and the case was tried
before an ALJ in March 2002. The ALJ’s findings relevant to this
appeal are: (1) that Methe suffers permanent and total disability;
(2) that his average weekly wage was $848.51, and was properly
calculated using § 910(c) of the LHWCA; (3) that employer
contributions to Methe’s retirement, annuity, and health insurance
plans should be excluded from calculations of his average weekly
wage; (4) that Methe reached maximum medical improvement on June 8,
2000; and (5) that Gulf Best failed to show that Methe’s current
disability was not due solely to his 2000 injury, and therefore is
not entitled to contribution under § 908(f) of the LHWCA.
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Methe, Gulf Best, and the LWCC appealed the ALJ’s decision to
the BRB. The BRB concluded that the ALJ erred in applying § 910(c)
of the LHWCA in computing Methe’s average weekly wage. Applying §
910(a) instead, the BRB modified the ALJ’s order to reflect an
average weekly wage of $942.65. The BRB affirmed the ALJ’s
conclusions as to permanent disability, exclusion of employer
contributions to health insurance and retirement plans from the
average weekly wage, the date of maximum medical improvement, and
denial of relief under § 908(f).
The parties now petition this court to review certain portions
of the BRB’s decision. Gulf Best and the LWCC ask us to reverse
the BRB’s ruling that Methe’s average weekly wage is properly
calculated under § 910(a) of the LHWCA, rather than § 910(c). They
further challenge the BRB’s decision as it relates to the permanent
nature of Methe’s disability, the date of maximum medical
improvement, and denial of relief under § 908(f). Methe asks us to
reverse the BRB’s affirmance of the ALJ’s decision to exclude
employer contributions to health insurance and retirement funds in
calculating his average weekly wage. The Director of the Office of
Workers’ Compensation Programs (“Director”) urges this court to
dismiss Methe’s claim for lack of jurisdiction, arguing that it was
not timely filed.
II
The LHWCA requires the BRB to accept the findings of the ALJ
if they are rational and supported by substantial evidence in the
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record considered as a whole. Ceres Marine Terminal v. Director,
OWCP, 118 F.3d 387, 389 (5th Cir. 1997). The BRB may not substitute
its judgment for that of the ALJ or engage in a de novo review of
the evidence. Id. This court, in turn, reviews decisions by the
BRB to determine whether it has adhered to its proper scope of
review –- i.e., whether the ALJ’s findings of fact are supported by
substantial evidence and are consistent with the law. H. B. Zachry
Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000).
A
We first consider the threshold question of jurisdiction.
This court’s jurisdiction to hear a petition for review from an
LHWCA administrative decision is derived solely from the appeal
provision contained in 33 U.S.C. § 921(c). This provision
requires, inter alia, that a petition for review of a final order
of the BRB be filed no later than sixty days following the issuance
of the order. The parties do not dispute that the jurisdictional
requirements of § 921(c) are met with respect to all of the issues
raised in the petition of Gulf Best and the LWCC.
The Director asserts that Methe’s petition, having been filed
seventy days after the BRB issued its final order, was not timely.
As such, the Director contends, this court lacks jurisdiction to
consider Methe’s claim that the BRB erred in excluding employer
contributions to his retirement and health insurance funds when
calculating his average weekly wage. We agree.
4
Methe has styled his petition a “Cross-Application to Enforce
Benefits Review Board Order”. In substance, however, it is simply
a request that this court reverse the BRB’s order, and thus allow
inclusion of his employer’s $3.47 per hour contributions to
retirement and health insurance funds in calculation of his average
weekly wage. Because the claimant raises this issue as an
affirmative challenge to the BRB’s decision rather than as a
defense to his employer’s appeal, his “cross-application” is
properly characterized as a petition for review and, thus, is time-
barred by § 921(c). See Dole v. Briggs Construction Co., Inc., 942
F.2d 318, 320 (6th Cir. 1991).
Methe contends that, because he has filed a petition for
modification of the compensation award with the Department of Labor
pursuant to 33 U.S.C. § 922, it would be a “waste of this Court’s
time and resources” to dismiss his petition, only to have the claim
eventually “work its way back through the system”. Methe cites no
authority for the proposition that we may ignore the time
requirements for appeal imposed by an agency’s organic statute for
the sake of equity or judicial efficiency. Accordingly, Methe’s
petition is dismissed.
B
We now turn our attention to the four substantive issues
raised by Gulf Best and the LWCC. In their petition, they contend
that the BRB erred: (1) in affirming the ALJ’s decision that Methe
suffered permanent disability; (2) in affirming the ALJ’s finding
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that Methe reached maximum medical improvement on June 8, 2000; (3)
in reversing the ALJ’s decision to apply § 910(c) of the LHWCA in
calculating Methe’s average weekly wage and instead applying §
910(a); and (4) in affirming the ALJ’s decision to deny Gulf Best
contribution under § 908(f).
(1)
Gulf Best and the LWCC contend that the ALJ and BRB erred in
deciding that Methe has suffered permanent disability. A claimant
is considered permanently disabled under the LHWCA if he or she
suffers any residual disability after achieving maximum medical
improvement. Abbott v. La. Ins. Guaranty Assn., 40 F.3d 122, 125
(5th Cir. 1994). Gulf Best and the LWCC argue that, because Methe
has unreasonably refused surgery to alleviate the symptoms of his
back injury, he has not achieved maximum medical improvement, and
thus cannot be considered permanently disabled. We do not agree.
The LHWCA allows an ALJ to suspend payment of compensation if
a claimant “unreasonably refuses to submit to medical or surgical
treatment ... unless the circumstances justified the refusal”. 33
U.S.C. § 907(d)(4). Gulf Best and the LWCC contend that Methe’s
refusal to undergo back surgery recommended by his physician, Dr.
Bourgeois, is both unreasonable and unjustifiable. They point to
Dr. Bourgeois’s testimony that surgery of the type in question
yields significant improvement in eighty-five to ninety percent of
patients and represents Methe’s only chance of improving his
condition.
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The ALJ acknowledged the relevance of this testimony, but
assigned more weight to Dr. Bourgeois’s statement that there is “no
guarantee, even with surgery, that [Methe’s] functional level would
improve”. The ALJ further relied on a statement by the physician
hired by Gulf Best to examine Methe that, while he believed it
could be justified, surgery probably would not benefit Methe.
In sum, although Dr. Bourgeois’s recommendation might have
persuaded some patients to undergo surgery, the ALJ’s finding that
Methe’s refusal was reasonable and justified is supported by
substantial evidence. We therefore hold that the BRB did not err
in affirming the ALJ’s conclusion that Methe did achieve maximum
medical improvement, and thus suffered permanent disability.
(2)
Gulf Best and the LWCC further assert that, even if Methe has
reached maximum medical improvement, the ALJ and BRB erred in
concluding that it was achieved on June 8, 2000. They argue that
the correct date of maximum medical improvement (“MMI date”) is,
instead, September 13, 2001. We agree that the ALJ erred, as a
matter of law, in designating June 8, 2000 as the MMI date.
Maximum medical improvement is reached when an injury has
received the maximum benefit of treatment such that the patient’s
condition will not improve. Abbott, 40 F.3d at 126. As discussed
supra, refusal of further treatment does not prevent a finding that
maximum medical improvement has been achieved where the refusal is
both reasonable and justified within the meaning of § 907(d)(4).
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Thus, the relevant inquiry becomes: when did Methe reach a level
of recovery at which no treatment other than surgery could have
yielded further improvement?
In settling upon June 8, 2000 as the MMI date, both the ALJ
and the BRB relied almost exclusively on Dr. Bourgeois’s opinion
regarding the date of maximum improvement. Dr. Bourgeois initially
gave September 13, 2001 as the MMI date, but later revised his
assessment to reflect a lack of actual improvement after June 2000.
Dr. Bourgeois stated in a letter that, although he had continued to
treat Methe with an eye toward further recovery until September
2001, June 8, 2000 actually represented the MMI date, since, in
hindsight, Methe’s health had actually worsened after that point.
The ALJ’s decision to rely on Dr. Bourgeois’s retrospective
determination of the MMI date is inconsistent with our holding in
Abbott. In Abbott, the claimant’s doctor continued to prescribe
treatment but, like Dr. Bourgeois, later decided that the treatment
had proven unsuccessful and accordingly revised the claimant’s MMI
date backward. Id. We affirmed the BRB’s decision that the date
on which treatment actually ceased was the correct MMI date, noting
that “[o]ne cannot say that a patient has reached the point at
which no further medical improvement is possible until such
treatment has been completed –- even if, in retrospect, it turns
out not to have been effective.” Id.
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We therefore hold that the ALJ erred, as a matter of law, in
accepting Dr. Bourgeois’s revision and designating June 8, 2000 as
the MMI date. As such, we reverse the decision of the BRB as it
pertains to the date of maximum medical improvement and remand the
matter to the BRB for recalculation of Methe’s average weekly wage
based on an MMI date of September 13, 2001.
(3)
Gulf Best and the LWCC argue that the BRB erred in reversing
the ALJ’s decision to calculate Methe’s average weekly wage using
§ 910(c) of the LHWCA. We conclude that the ALJ’s decision to
apply § 910(c) was contrary to law, and thus, that the BRB’s
decision to reverse and apply § 910(a) was not in error.
Under the LHWCA, a claimant’s average weekly wage is
determined using one of three methods set forth in 33 U.S.C. §
910(a)-(c). If the claimant has worked at the job at which the
injury took place “during substantially the whole of the year
immediately preceding his injury”, § 910(a) applies. If the
claimant has not worked at the job for substantially the whole of
the preceding year, § 910(b) applies. If neither § 910(a) nor §
910(b) can be applied fairly and reasonably to determine the
average weekly wage, then § 910(c) is used.
Gulf Best and the LWCC argue that the BRB erred in applying §
910(a) because Methe did not work for Gulf Best during
substantially the whole of the preceding year. In its opinion, the
BRB found that Methe had worked 47.4 weeks, or 237 days, or 91
9
percent of the workdays available in the year before his injury.
It referenced the Ninth Circuit’s holding in Matulic v. Director,
OWCP that, as a matter of law, § 910(a) must be applied where a
claimant has worked at least 75 percent of the available workdays
in the preceding year. 154 F.3d 1052, 1058 (9th Cir. 1998). While
this court has not adopted such a bright-line test for the
applicability of § 910(a), it is clear to us that Methe’s record of
91 percent satisfies the requirement of § 910(a) that the claimant
have worked “substantially the whole of the year immediately
preceding the injury”.
It is true that we previously have said that, even where the
requirements of § 910(a) are met, an ALJ may apply § 910(c) “if [§
910(a)] ‘can not reasonably and fairly be applied’”. SGS Control
Services v. Director, OWCP, 86 F.3d 438, 441 (5th Cir. 1996). In
the case before us, the ALJ cited concern over the “fairness” of
possible overcompensation as his rationale for applying § 910(c),
noting that he “d[id] not agree with Claimant that [§] 910(a) was
designed to ‘show what Claimant could earn under ideal
circumstances’”. This position, however, is contrary to the one we
took in Ingalls Shipbuilding v. Wooley, in which we said that
“[t]he calculation mandated by § 910(a) aims at a theoretical
approximation of what a claimant could ideally have expected to
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earn ... had he worked every available work day in the year”. 204
F.3d 616, 618 (5th Cir. 2000) (internal citations omitted).1
As such, we hold that the ALJ erred as a matter of law in
applying § 910(c) in calculating Methe’s average weekly wage. We
therefore affirm the BRB’s decision to reverse the ALJ and to
calculate Methe’s wage under § 910(a).
(4)
Finally, Gulf Best and the LWCC contend that the ALJ and BRB
erred in deciding that Gulf Best is not entitled to contribution
under 33 U.S.C. § 908(f). We do not agree.
The LHWCA provides, in § 908(f), that an employer may limit
its liability for an employee’s permanent disability if it can
show, inter alia, that the disability that exists after the work-
related injury is not due solely to the injury, but is the product
of a combination of both that injury and an existing permanent
partial disability. See Director, OWCP v. Cargill, Inc., 709 F.2d
1
Over-compensation alone does not usually justify applying §
910(c) when § 910(a) or (b) may be applied. As the BRB noted in
its opinion, any over-compensation that the LHWCA yields “is built
into the system institutionally”. The Ninth Circuit observed in
Matulic that, when Congress amended § 910 in 1948 to reflect the
five-day work week, it must have been aware that, due to illness,
vacations, strikes, etc., virtually no one works every working day
of every week. Thus, ordinarily, § 910's fixed formula will over-
compensate the worker to some degree. This result, however,
comports with the humanitarian purposes of the LHWCA and the
courts’ mandate to construe the LHWCA broadly so as to favor
claimants. See Matulic, 154 F.3d at 1057 (citing Edwards v.
Director, OWCP, 99 F.2d 1374, 1375 (9th Cir. 1993); Randall v.
Comfort Control, Inc., 725 F.2d 791, 796 (D.C. Cir. 1984); Odom
Constr. Co., Inc. v. U.S. Dept. of Labor, 622 F.2d 110, 115 (5th
Cir. 1980)).
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616, 619 (9th Cir. 1983). The employer bears the burden of proving
that the work-related injury would not have rendered the employee
permanently and totally disabled absent the pre-existing
disability. Ceres, 118 F.3d at 390.
Gulf Best and the LWCC argue that the ALJ’s finding that
Methe’s current disability was caused solely by his March 2000
injury is not supported by evidence. They cite a work-related back
injury that Methe suffered in 1987, as well as Dr. Bourgeois’s
diagnosis of a pre-existing spondylosis in Methe’s back, but do not
specify which of the two may have contributed to his present
disability.
The ALJ assumed that Methe had a pre-existing disability but
nonetheless found that Methe’s current disability resulted entirely
from his work-related injury. The ALJ found that Gulf Best and the
LWCC had produced no evidence to suggest that Methe suffered any
long-term effects of the 1987 injury, nor any evidence that would
tend to show Methe’s current disability was more disabling because
of the earlier injury. In addition, the ALJ cited the opinion of
Dr. Bourgeois that Methe’s back problems resulted from his 2000
injury alone.
We find no reversible error in the weighing of the evidence on
this question and, thus, affirm the ALJ’s holding and the BRB’s
affirmance.
III
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In sum, because we lack jurisdiction to entertain it, Methe’s
petition for review is DISMISSED. With regard to the date of
maximum medical improvement, the decision of the Benefits Review
Board is REVERSED, and the case is REMANDED to the Board for
recalculation of Methe’s average weekly wage based on an MMI date
of September 13, 2001. The decision of the Benefits Review Board
is in all other respects AFFIRMED.
1 AFFIRMED, in part, REVERSED in part, and REMANDED.
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