Ingalls Shipbuilding v. DOWCP

United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
Nº 03-60934
Summary Calendar
__________________
INGALLS SHIPBUILDING, INC.,
NOW DOING BUSINESS AS NORTHROP GRUMMAN SHIP SYSTEMS, INC.,
Petitioner,
VERSUS
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
LEON BOLDEN,
Claimant-Respondent.
___________________
Appeal from an Order of
the Benefits Review Board
m 02-0859
m 01-0693
m 00-465
___________________

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Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
This is an appeal by employer Ingalls Ship-
building, Inc. (“Ingalls”), of a final order of the
Benefits Review Board (“BRB”). Agreeing
with the findings of fact and conclusions of
law of the administrative law judge (“ALJ”) in
his Decision and Order on Second Remand,
the BRB ruled that Ingalls owed Leon Bolden
disability compensation and medical expenses
under the Longshore and Harbor Workers’
Compensation Act (“the Act”). In addition,
the BRB denied Ingalls partial relief under
§ 8(f) of the Act.1 We affirm.
I.
The facts are undisputed. Bolden is a fifty-
five-year-old electrician who worked for In-
galls intermittently for nineteen years begin-
ning in the fall of 1969. He was employed
continuously from 1987 until May 1995. In
1988, he fell on his back while volunteering at
his child’s school. In addition to this back in-
jury, Bolden suffered a total of six work-re-
lated injuries over the course of his employ-
ment at Ingalls. All of these injuries were mi-
nor, and except for the injury to his wrist in
1991, Bolden recovered completely and re-
turned to work.2
In February 1995, bothered by pain in his
legs and feet, Bolden sought relief from Dr.
Wetzel, a chiropractor, who referred him to an
orthopedic surgeon, Dr. Semon, in April of
that year. Semon diagnosed Bolden with a
bulging or herniated disc for which he was
treated conservatively. When treatment result-
ed in no lasting improvement, Bolden filed for
short-term disability in May.
In June, Semon performed two diskograms
and a percutaneous diskectomy. Finding that
the June procedure had not relieved the pain,
Semon recommended a lumbar laminectomy,
an open surgical procedure, in September.
Hesitant to undergo such a procedure, Bolden
decided to live with the pain and returned to
work for some two weeks between August 28
and November 30, 1995, before deciding he
could no longer work in his condition.
On September 11, 1995, an attorney in-
formed Bolden that he did not have to prove a
specific date and time of injury to receive ben-
efits under the Act. He alleges that he had not
filed for benefits from Ingalls for his back in-
jury earlier because he was unable to pinpoint
a specific incident that led to disability. On
learning, however, that no such date was re-
quired, he promptly filed a Form LS-203 and
notified Ingalls on September 25.
On November 30, 1995, Bolden sought
treatment from Dr. Fontana, an orthopedic
surgeon who had treated his wrist injury in
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Section 8(f) shifts, from the employer to the
Special Fund established by the Act, liability to
pay compensation for permanent disability after
104 weeks. 33 U.S.C. §§ 908(f), 944.
2 The wrist injury in 1991 resulted in a three
percent impairment to Bolden’s upper extremity
and permanent restrictions. These restrictions,
however, did not inhibit him from performing his
routine job duties.

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1991 and 1992. Fontana diagnosed degenera-
tive disc disease and recommended additional
conservative treatment. In early 1996, Bolden
was diagnosed with arterial insufficiency and
underwent several procedures to correct this
vascular condition. He also was found to suf-
fer from peripheral neuropathy.
Semon and Fontana are of the opinion that
Bolden’s other conditions are unrelated to his
employment and back injury. They also agree
that Bolden’s degenerative back disease can be
caused by “regular wear and tear” and that
specific events do not always occur to signal a
back injury like his. Neither doctor states de-
finitively that Bolden’s injury was caused by
his work, though neither is willing to state
unequivocally that it was not.
II.
This case was remanded twice by the BRB
before the BRB affirmed the ALJ’s Order on
Second Remand and entered a final order. In
his first decision, the ALJ denied Bolton’s
claim for disability benefits, finding that he had
failed to give timely notice of injury under §
12(a) of the Act, 33 U.S.C. § 912(a), and that
claimant’s failure was not excused under §
12(d).
In the first appeal, the BRB found that the
ALJ had erred in his consideration of timeli-
ness by failing to determine the date on which
Bolden became, or should have become, aware
that his injury was in fact work-related. The
BRB also stated that the ALJ had erred by
failing to give Bolden the benefit of the
§ 20(b), 33 U.S.C. § 920(b), presumption that
notice had been filed timely under § 12(a).
On remand, the ALJ, applying the § 20(b)
presumption, still determined that Bolden’s
notice was untimely and thus he was ineligible
for disability benefits. The ALJ also concluded
that Bolden, although triggering the § 20(a)
presumption (that the injuries were causally
related to his employment), had failed to meet
his burden of proof in the face of Ingalls’s re-
buttal and therefore was not entitled to medi-
cal benefits either. Bolden again appealed to
the BRB.
The BRB determined that the ALJ had
erred in finding that Ingalls had established a
rebuttal of the § 20(a) presumption. Given
this failure, the BRB then opined that Bolden’s
condition is work-related as a matter of law,
and the only question that remained was the
amount of compensation. The BRB also
reversed the ALJ’s finding that Bolton’s claim
was barred for lack of compliance with
§ 12(a), noting that no evidence existed in the
record to support that finding. The BRB then
remanded for a second time for the ALJ to
consider the merits of the claim.
Addressing the merits on second remand,
the ALJ found that Bolden had established a
prima facie case of total disability and that In-
galls had offered no substantial evidence to the
contrary. Accordingly, the ALJ awarded tem-
porary total disability compensation from
May 9, 1995, through November 29, 1995
(the day before, according to Fontana, Bolden
reached “maximum medical improvement”).
Ingalls also was ordered to pay permanent to-
tal disability compensation from November 30,
1995, forward. These payments were to be
made based on Bolden’s average weekly wage
of $485.88.
Because the BRB had already determined
that Bolden’s condition was work-related as a
matter of law, the ALJ also found that Bolden
was entitled to all reasonable medical expenses
incurred with Fontana relating to Bolden’s

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lower back condition. The ALJ also denied
Ingalls’s request for partial relief from its com-
pensation liability under § 8(f). As we have
said, the BRB affirmed.
III.
We have jurisdiction over Ingalls’s petition
for review pursuant to § 21(c) of the Act, 33
U.S.C. § 921(c), and FED. R. APP. P. 15(a).
We review BRB decisions de novo, applying
the same standard as does the BRB, upholding
the decision of the ALJ when it is in accor-
dance with law and supported by substantial
evidence. 33 U.S.C. § 921(b)(3); e.g., New
Thoughts Finishing Co. v. Chilton, 118 F.3d
1028, 1030 (5th Cir. 1997).
IV.
Ingalls appeals the BRB’s final order af-
firming the ALJ’s decision and order on sec-
ond remand. Specifically, Ingalls questions
the BRB’s conclusion that Bolden established
a prima facie case (thus invoking the § 20 pre-
sumption), as well as its finding that Bolden
failed to rebut that presumption. Additionally,
Ingalls argues that Bolden’s inability to work
is a result not of his back condition, but of
other medical problems, so Ingalls should not
be liable for disability benefits. In the alterna-
tive, Ingalls urges that if it is liable, it is eligible
for partial relief under § 8(f). Finding no er-
rors of law or clear errors of fact, we deny the
petition for review.
A.
Under § 12(a) of the Act, a claimant who
sust ains a traumatic injury is required to file
notice of the injury within thirty days of the
date on which he became aware, or should
have become aware, of the relationship be-
tween his injury and his employment. 33
U.S.C. § 912(a). He is entitled to the pre-
sumption that the notice was timely filed, and
the burden rests with the employer to prove
otherwise. 33 U.S.C. § 920(b).
On second appeal, the BRB decided that
the ALJ’s finding that the § 20(b) presumption
had been rebutted contravened all available ev-
idence and that Bolden had demonstrated un-
awareness of the relatedness of his injury to
work until September 1995, when he filed his
claim. The facts provide substantial evidence
for this finding, so Bolden’s eligibility for dis-
ability benefits is not time-barred.
B.
To become eligible for disability and medi-
cal benefits under the Act, a claimant must es-
tablish causation between the injury and his
job. Ingalls contends that Bolden fails to qual-
ify for the § 20(a) presumption, which assumes
that his injury is causally related to his
employment.
To invoke the presumption, a claimant must
initially demonstrate that he “suffered a harm
and that employment conditions existed which
could have caused, aggravated or accelerated
the condition.” Merrill v. Todd Pac.
Shipyards Corp., 25 BRBS 140 (1991) (em-
phasis added). Ingalls inadequately states the
burden a claimant must meet to invoke the
presumption. Ingalls avers that a claimant
must prove that “he sustained an injury in the
course and scope of his employment.” Indeed,
the Act requires only that a claimant prove
conditions that might have caused, aggravated,
or accelerated an injury, to shift the burden of
proof to the employer. The claimant need not
prove that his job was the proximate cause of
his injury, but merely that it may have been a
cause.
Bolden’s employment at Ingalls included
the lifting and carrying of heavy boxes on a

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daily basis. Such strenuous work might easily
have caused or worsened his back condition
over time. The ALJ, on first remand, was
therefore correct in finding that Bolden had
met his initial burden and that the § 20(a) pre-
sumption was invoked.
Once a claimant has invoked this presump-
tion, the burden shifts to the employer to rebut
the presumption with “substantial countervail-
ing evidence.” See James v. Pate Stevedoring
Co., 22 BRBS 271 (1989). In the second ap-
peal, the BRB found as a matter of law that
Ingalls had failed to meet its burden and that
Bolden’s injury was work-related as a matter
of law. Citing the ALJ’s reasons in its first
remand, Ingalls argues that the presumption
was successfully rebutted.3 Ingalls contends
that these reasons constitute the substantial
evidence necessary to rebut the presumption.
We disagree.
Bolden’s own opinion as to the ultimate
cause of his injury should not be controlling.
He is not a medical expert, so his beliefs re-
garding causality are alone insufficient. More-
over, assuming arguendo that Bolden initially
injured his back in 1988, Ingalls would still
bear the burden of proving that Bolden did not
aggravate that injury over the next few years
while at work.
Ingalls provides no evidence whatsoever to
counter this possibility. The remaining evi-
dence Ingalls cites is also insufficient, because
it merely indicates an unwillingness on the part
of Bolden’s doctors to state with certainty that
his injury was caused by his job. As we have
noted, however, those doctors are just as un-
willing to state that the injury was not work-
related. Because the medical testimony is
equivocal regarding the etiology of the injury,
this remaining evidence is insufficient to rebut
the § 20(a) presumption, see Phillips v. New-
port News Shipbuilding & Dry Dock Co., 22
BRBS 94 (1988), so Bolden’s injury is work-
related as a matter of law.
C.
Once Bolden has established causation, the
burden shifts to him prove the nature and ex-
tent of his disability. Bolden establishes a pri-
ma facie case of total disability if his work in-
jury prevents return to his usual place of em-
ployment. See Mijangos, 948 F.2d at 944.
Testimony by Bolden and his doctors makes
a prima facie case for total disability, and the
burden shifts to Ingalls show that Bolden is at
most partially disabled, which can be demon-
strated by showing realistic job alternatives
that are suitable for Bolden, given his age, ed-
ucation, and physical restrictions. New Or-
leans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 1042 (Former 5th Cir. Nov. 1981).
Ingalls offers no reasonable job alternatives
for Bolden and is thus unable to rebut the pre-
sumption of total disability. Ingalls’s conten-
tion that Bolden suffers from other unrelated
disabilities that also prevent him from working
is irrelevant, because Bolden is still entitled to
total disability benefits so long as his work
injury is a cause of his disability. See Director,
OWCP v. Vessel Repair, Inc., 168 F.3d 190
(5th Cir. 1999). Even if Bolden’s vascular
3 The ALJ found that Ingalls had rebutted the
presumption based on the following: (1) Bolden’s
and Semon’s statements on Bolden’s group health
insurance forms relating the injury to a non-indus-
trial fall in 1988; (2) Bolden’s statements to his
doctors that the injury was caused by the 1988 fall;
(3) Bolden’s admission that he did not know the
cause of his injury; and (4) the doctors’ opinions
that every living activity can cause Bolden’s
condition.

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disease is more serious than his degenerative
back disease, Ingalls has offered no evidence
to suggest that he could continue to work if he
suffered only from his back ailment. Agreeing
with the findings and conclusions of the ALJ in
his third order, we deny review of the BRB’s
decision award total disability damages in the
amount (and under the terms) set forth.
D.
Having established that his injury was
work-related as a matter of law, Bolden may
assess to Ingalls all reasonable and necessary
medical expenses related to that injury. See
Parnell v. Capitol Hill Masonry, 11 BRBS
532, 539 (1979). But, an employee cannot re-
ceive reimbursement for medical expenses un-
der § 907(d)(1) of the Act unless he has first
requested authorization before obtaining the
treatment, except in cases of emergency. 20
C.F.R. § 702.421.
Ingalls was not notified of Bolden’s injury
until September 11, 1995. If an employer has
no knowledge of an injury, the employee is not
entitled to reimbursement for any money spent
before notifying the employer. McQuillen v.
Horne Bros., Inc., 16 BRBS 10 (1983).
Therefore, Ingalls is not liable for any medical
expense incurred before notification, and the
ALJ on second remand was correct in finding
that Ingalls did not owe Bolden for his visits to
Wetzel and Semon. Once Ingalls was notified
in September, however, it became liable for all
subsequent medical expenses, including
continuing visits to Fontana. The ALJ cor-
rectly limited Bolden’s recovery to only those
visits related to his back injury, leaving treat-
ment of his unrelated vascular condition and
neuropathy to him.
E.
Section 8(f) of the Act allows that an em-
ployer may limit its liability for compensation
payments for permanent disability if the fol-
lowing elements are present: (1) The claimant
has a pre-existing permanent partial disability;
(2) the pre-existing disability was manifest to
the employer; and (3) the disability that exists
after the work-related injury does not result
solely from the injury, but is a combination of
both that injury and the existing permanent
partial disability. Director, OWCP v. Cargill,
Inc., 709 F.2d 616, 619 (9th Cir. 1983). In-
galls contends it is eligible for § 8(f) relief be-
cause Bolden suffered previous work-related
injuries to his ankle, shoulder, and wrist. Bol-
den, however, made a full recovery from all
prior work-related injuries save his wrist in-
jury, which resulted in a three percent loss of
mobility (although this did not seem to impair
his ability to work). Although Ingalls was
aware of all these prior injuries, none of them
combined with Bolden’s back injury to render
him total disabled. Therefore, element three is
not met with respect to these injuries, and In-
galls cannot recover.
In the alternative, Ingalls argues that Bol-
den suffered from neuropathy and vascular
problems that, coupled with his back injury,
render him totally disabled. Though it is true
that these conditions seriously and permanent-
ly impair Bolden’s ability to work, Ingalls was
unaware of these disabilities until well after
Bolden left its employ, and element two of the
test is not met. Thus, Ingalls is entitled to no
relief under this alternative theory, so we deny
review of the BRB’s decision not to limit In-
galls’s liability under the Act.
The petition for review is DENIED.

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