United States 5th Circuit Rejects Employee’s Request for Additional LHWCA Benefits

In Bourgeois v. Director, Office of Workers’ Compensation Programs, United States, 2020 WL 29940 (5th Cir. 2020), the United States Court of Appeals for the Fifth Circuit recently denied an injured workers’ claim that he had not been adequately compensated under the Longshore and Harbor Workers’ Compensation Act (LHWCA) for all claimed work injuries. In so ruling, the Fifth Circuit determined that (1) the employer effectively rebutted the statutory presumption and that (2) substantial evidence supported the Administrative Law Judge’s finding that the employee did not suffer from additional injuries.

Bourgeois v OWCP Background

In Bourgeois v OWCP, Claimant, Tramond Bourgeois, sought benefits under the LHWCA after he injured his right shoulder, right ankle, and lower back while working for his former employer, Fab-Con, Inc., on navigable waters on May 31, 2014. An administrative law judge (ALJ) ordered Employer to pay disability benefits. Claimant appealed the ALJ’s decision, stating that the ALJ erred in finding that he did not suffer more severe shoulder and back injuries, including a labrum tear and lumbar facet arthritis. The Benefits Review Board (the Board) affirmed the ALJ’s decision and Claimant petitioned for review.

Discussion and Ruling by the 5th Circuit

Claimant first argued that the ALJ improperly determined that he did not suffer a labral tear to his right shoulder as a result of the work accident. The Fifth Circuit acknowledged that Section 20 of the LHWCA affords an employee a presumption that an injury is causally related to his employment as long as he proves that he suffered harm and that conditions existed at work that could have caused, aggravated, or accelerated the condition. Yet, the Fifth Circuit found that Employer successfully rebutted the presumption by pointing to “substantial evidence” to establish the lack of a causal nexus between the labral tear and his employment. 33 U.S.C. § 920.

The Fifth Circuit agreed with the ALJ that Employer’s medical expert presented a more thorough and credible opinion than Claimant’s treating physician. Although a June 24, 2014 MRI suggested that Claimant suffered a small ventral tear immediately after the accident, Claimant’s physician testified that he treated Claimant for a superior tear three years later, in 2017. Because Claimant’s physician found tears in structures that were not present in 2014, Employer’s physician determined that the accident did not cause Claimant’s labral tear. Claimant argued that Employer’s physician was bound to accept his physician’s conclusion that he suffered a single tear at the time of the accident, which progressed over time as a result of normal use. However, Claimant’s physician admitted that Claimant’s labral tear could have been caused by an intervening injury, as opposed to the initial 2014 injury.

As the ALJ was not required to credit Claimant’s physician’s testimony, the Court found that the ALJ properly considered the testimony and opinions of both experts and found Employer’s physician’s explanation more credible. In so ruling, the Court noted that they may not disturb the ALJ’s determination, “even if the ALJ could have plausibly drawn an alternate conclusion from the evidence.”

In addition, the Fifth Circuit found that the Board properly refused to consider Claimant’s argument that the 2017 shoulder surgery was intended to address an AC joint sprain, which was  presented for the first time in Claimant’s motion for reconsideration. Although Claimant stated that this theory was supported by significant evidence, Claimant failed to cite to any portion of the record that demonstrated that he asserted this claim before the ALJ. By failing to brief the issue, the Court ruled that Claimant waived any objections to the ALJ’s conclusions that his AC joint sprain was resolved by November 2014. Claimant also failed to file a motion for modification, as instructed by the Board in its order on the motion for reconsideration.

The Fifth Circuit further held that the ALJ’s finding that Claimant did not suffer from lumbar facet arthrosis was supported by substantial evidence. While a low-resolution MRI suggested that Claimant might have sustained facet arthrosis, a higher resolution MRI presented no evidence of the condition. The Court provided that the ALJ was exclusively entitled to assess both the weight of the evidence and the credibility of the witnesses. After a physical examination of Claimant, Employer’s physician opined that Claimant exhibited no objective lumbar problems. Based on this opinion, the ALJ determined that Claimant’s statements about his pain were not credible. The Fifth Circuit found that the ALJ’s finding was supported by substantial evidence, and; accordingly, denied Claimant’s petition for review.