LA Ins Guaranty v. Bunol & DOWCP, et al

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60508
LOUISIANA INSURANCE GUARANTY ASSOCIATION
Petitioner
VERSUS
ROBERT BUNOL; DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR
Respondents
Petition for Review of an Order
of The Benefits Review Board
May 12, 2000
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
FALLON, District Judge:
The Louisiana Insurance Guaranty
Association ("LIGA") appeals from a
decision by the Benefits Review Board
("BRB") of the United States Department of
Labor concerning benefits awarded to
* District Judge of the Eastern
District of Louisiana, sitting by designation.

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Robert Bunol pursuant to the Longshore
and Harbor Workers' Compensation Act
("LHWCA"). Because we find that
substantial evidence supports the
determination of the BRB, we affirm.
I.
Robert J. Bunol, Sr. was a diesel
mechanic who was injured in February and
again in August of 1979 while working for
the George Engine Company in Harvey,
Louisiana. He suffered injuries to his back
and spine and underwent surgery on April
28, 1980. Following his operation, Bunol
worked in the repair shop, became an
instructor, and ultimately resumed his full
duties six months to a year later.
In March, 1988, Bunol was laid off from
his job when the George Engine Company
went bankrupt. He then began working for
his brother's insurance company in
September, 1988 until it was sold in
August, 1990. Since 1990, he has not
returned to any work.
Bunol filed a complaint for benefits
under the LHWCA after losing his job at
the insurance company. An administrative
law judge ("ALJ") found that Bunol failed
to provide his employer with sufficient
notice of the February, 1979 injury and
therefore was not entitled to disability
benefits. The ALJ did, however, award
Bunol benefits related to his August, 1979
claim. Bunol received temporary total
disability benefits at a compensation rate of
$306.91, based on a weekly wage of
$460.37, for the period between the date of
the accident until December 18, 1980.
Thereafter, Bunol was entitled to permanent
partial disability benefits at a weekly rate of
$146.66 based on a residual wage capacity
of $240.38.
Bunol sought compensation from LIGA
because his employer went out of business.1
LIGA moved to reconsider the ruling of the
ALJ, but its motion was denied. On appeal,
the BRB remanded the case to another ALJ
who granted LIGA's request for
modification. The second ALJ ordered
LIGA to pay compensation for temporary
total disability benefits from August 1, 1979
through September 4, 1979, and from April
28, 1980 through July 9, 1980 based on an
average weekly wage of $452.13.
The ALJ further ordered LIGA to pay
permanent partial disability benefits for the
period from September 1, 1988 through
August 1, 1990 based on an average weekly
wage of $452.12 and a residual earning
capacity of $188.25. For August 2, 1990 to
August 31, 1993, Bunol was awarded a
residual earning capacity of $150.42, and
from September 1, 1993 onward a residual
earning capacity of $160.80. The second
ALJ, however, relieved LIGA of its duty to
pay benefits for the period from 1980 to
1988.
Bunol appealed and LIGA cross
appealed the second ALJ decision. The BRB
affirmed the findings of the ALJ and also
reinstated the award of the first ALJ for
permanent partial disability compensation for
the period from 1980 through 1988. LIGA
now appeals the second BRB decision to this
court.
II.
We review an appeal from a decision by
the BRB de novo. Sketoe v. Exxon Co.,
USA, 188 F.3d 596, 597 (5th Cir. 1999). In
reviewing a decision of the BRB, we only
consider whether the BRB correctly found
1 The Louisiana Legislature created
LIGA to cover claims against bankrupt
employers and their insurers. See La. Stat.
Ann. § 22:1375, et. seq.

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that the ALJ's findings of fact are supported
by substantial evidence and consistent with
the law. See Avondale Indus. v. Director,
OWCP 977 F.2d 186, 189 (5th Cir.1990).
"[W]e may not substitute [our] judgment
for that of the ALJ, nor may we reweigh or
reappraise the evidence, instead we inquire
whether there was evidence supporting the
ALJ's factual findings." Boland Marine &
Manufact. Co. v. Rihner, 41 F.3d 997, 1002
(5th Cir. 1995) (quoting Empire United
Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991)). Therefore, "we must affirm
decisions that conclude correctly that the
ALJ's findings are supported by substantial
evidence and are in accordance with the
law." Darby v. Ingalls Shipbuilding, Inc.,
99 F.3d 685, 688 (5th Cir. 1996).
A.
LIGA argues that the evidence in the
record is insufficient to support the
conclusions of the BRB. First, LIGA
suggests that the BRB erred in determining
the causal relationship between Bunol's
disability and any work-related accident.2
LIGA next asserts that sufficient evidence
supports neither the BRB's findings
regarding the nature and extent of Bunol's
disability nor its determination of the
average weekly wage afforded to Bunol.
LIGA then argues that Bunol was not
injured on a situs covered by the LHWCA.
Finally, LIGA disputes the BRB's
determination concerning Bunol's residual
wage earning capacity and demonstration of
suitable alternative employment.
B.
We first consider whether the BRB
erred in determining the causal relationship
between Bunol's disability and any work-
related accident. When Bunol claimed
compensation under the LHWCA, the law
afforded him a presumption that his injury
arose out of and in the course of his
employment. See 33 U.S.C. § 920(a). Once
the presumption is invoked, the burden shifts
to the employer to rebut the presumption
with substantial evidence that his condition
was not caused or aggravated by his
employment. See Noble Drilling Co. v.
Drake, 795 F.2d 478, 481 (5th Cir. 1986). If
the employer meets this standard, then the
presumption disappears. Id.
LIGA fails to overcome its burden. The
evidence considered by the ALJ and
reviewed by the BRB shows that Bunol went
to see his doctor either the day of or the day
after his July 31, 1979 injury. He reported
the injury to the employer who in turn filed a
report. Although LIGA contends that the
testimony of Bunol's doctor indicates that he
thought he was treating the injury of
February, 1979, the ALJ as fact finder
determines the credibility of witnesses and
decides issues of conflicting evidence. See
Avondale Indus., 977 F.2d at 189. LIGA
presents no evidence to challenge the ALJ
determination, and we therefore find the
conclusion of the BRB to be supported by
substantial evidence.
C.
LIGA next contends that the evidence
considered by the ALJ and the BRB is
insufficient to sustain a finding that Bunol
had worked in pain and with a decreased
earning capacity sufficient to justify partial
disability benefits for the period from 1980
to 1988.
Bunol bears the initial burden of
demonstrating that he cannot return to his
usual work in order to establish a prima
2 We need not reach the issue of
whether the BRB's decision was issued
timely because Bunol adopts the argument
of LIGA in its brief.

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facie case for total disability. If he meets
this burden, then his employer must
establish the availability of suitable
alternative employment. See P&M Crane
Co., 930 F.2d 424 (5th Cir. 1991). Even if
able to work, Bunol may be found to be
totally disabled if he is working with
extraordinary effort and in excruciating
pain. See Argonaut Ins. Co. v. Patterson,
846 F.2d 715 (11th Cir. 1988). These
factors are also relevant in determining an
award of permanent partial disability and
wage-earning capacity after an injury. See
33 U.S.C. § 908(c)(21)(h).
Both ALJs found that Bunol worked in
substantial pain from 1980 to 1988. In its
decision, the BRB notes that Bunol testified
that he worked in constant pain and that his
doctor placed restrictions on his physical
activities at work. LIGA offers no evidence
to rebut the findings of the BRB.
Therefore, according to our standard of
review, we find that the BRB properly
found that Bunol worked in pain and is
entitled to benefits for the period from 1980
to 1988.
D.
LIGA further insists that the BRB
improperly calculated Bunol's average
weekly wage to determine his benefits. The
methods for calculating average weekly
wages are listed at 33 U.S.C. section 910.
LIGA contends that the ALJ should have
applied section 910(a) rather than section
910(c) to determine his average weekly
wage because Bunol worked "substantially
the whole of the year." See 33 U.S.C. §
910(a) (providing the computation formula
for injured employees who worked "during
substantially the whole of the year
immediately preceding injury"). Id.
The ALJ determined that section 910(c)
applied because the forty-two weeks that
Bunol did work failed to fairly represent an
entire year of work. Therefore, the ALJ
applied the methodology of section 910(c)
that provides a formula to calculate average
weekly wages when the other standards
"cannot reasonably and fairly be applied."
Id. § 910(c). The BRB affirmed.
The courts give broad discretion to ALJs
in determining appropriate wage awards. See
National Steel & Shipbuilding Co. v.
Bonner, 600 F.2d 1288, 1292 (9th Cir. 1979).
LIGA offers no evidence to rebut the
conclusion of the ALJ. Rather, LIGA
suggests an alternative method for
calculating his wage. The ALJ made no
error of law by applying section 910(c) and
found that the evidence showed Bunol had
not worked substantially the whole year and
therefore did not satisfy the section 910(a)
criteria. Thus, we do not find that the BRB
erred in affirming the ALJ decision.
E.
LIGA additionally asserts that sufficient
evidence does not demonstrate that Bunol's
injury occurred on a covered situs. Section
3(a) of the LHWCA restricts compensation
awards to injuries "occurring on the
navigable waters of the United States
(including any adjoining pier, wharf, dry
dock, terminal, building way, marine railway,
or other adjoining area customarily used by
an employer in loading, unloading, repairing,
dismantling, or building a vessel)." 33
U.S.C. § 903(a).
LIGA claims that evidence exists to
support a finding by the ALJ that Bunol's
accident occurred in a field in Baton Rouge
or on a dock in Harvey. The ALJ, however,
found that the evidence showed that the
injury occurred on the dock. The BRB
further concluded that Bunol's employer
conducted maritime activity at this facility.
Again, the ALJ weighed conflicting evidence

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and rendered a decision that a reasonable
mind might accept as adequate to support a
conclusion. See Avondale Indus., 977 F.2d
at 189 (defining "substantial evidence" as
evidence that provides a substantial basis of
fact from which can be reasonably inferred)
(internal quotation omitted). Therefore, we
find that the evidence supports the BRB's
determination that Bunol's injury occurred
on a situs covered by the LHWCA.
F.
Finally, LIGA disputes the BRB's
determination concerning Bunol's residual
wage earning capacity and demonstration of
suitable alternative employment.3 LIGA
again provides no evidence to challenge the
findings of the BRB. We may not second-
guess the determinations of the ALJ and the
BRB absent a showing that substantial
evidence does not support their conclusions.
See Rihner, 41 F.3d at 1002. Accordingly,
we find that the record supports the fact-
finding of the ALJs and the determination of
the BRB.
Respondent’s motion to dismiss the petition
for review is MOOT.
AFFIRMED.
3 At oral argument, LIGA's counsel
stated that LIGA challenges, on appeal,
only the BRB's factual determination and
raises no issue as to LIGA's duty, under
these facts, to find suitable alternative
employment. Accordingly, we decide only
the factual issue.

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