     Case: 11-60532     Document: 00511760585         Page: 1     Date Filed: 02/16/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 16, 2012

                                     No. 11-60532                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ISLAND OPERATING COMPANY, INCORPORATED; LOUISIANA
WORKERS’ COMPENSATION CORPORATION,

                                                  Petitioners
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; ARCHIE CRAWFORD,

                                                  Respondents



                      Petition for Review from an Order of the
                               Benefits Review Board
                                   BRB No. 10-0688


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Petitioners Island Operating Company, Incorporated and Louisiana
Workers’ Compensation Corporation appeal the order of the Benefits Review
Board upholding an administrative law judge’s award of disability benefits to
Respondent Archie Crawford. For the following reasons we AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-60532

             I. FACTUAL AND PROCEDURAL BACKGROUND
      Respondent Archie Crawford (“Crawford”) was employed by Petitioner
Island Operating Company, Incorporated (“Island”) as a lead operator on an
offshore oil production platform. On the morning of Wednesday, March 12, 2008,
Crawford was taken by helicopter to an offshore platform at West Cameron 586
to begin a week-long shift. While disembarking from the helicopter, Crawford’s
knee buckled, and he fell down two stairs. Crawford filled out an accident report
that day indicating that he bruised and scraped his right knee and sustained
bruises on his right side. Crawford testified that he performed his job duties for
the remainder of the day, but when he awoke the following morning, he
experienced numbness in his left foot and three of the fingers on his left hand.
Crawford testified that he asked his supervisor, Joe Pesche (“Pesche”), to send
a replacement to relieve him so that he could be examined by a physician. There
were no physicians on the platform. Crawford testified that Pesche denied his
request because a replacement was not available.
      Crawford’s condition continued to worsen in the days that followed.
Crawford testified that on Friday, March 14, 2008, he experienced numbness in
his upper body and that he continued his requests to be relieved from his post
and taken to a physician. Crawford further testified that on Saturday, his chest
felt numb, and the numbness was more pronounced than it had been on previous
days. Crawford indicated that he continued requesting relief. According to
Crawford, his condition stabilized on Sunday, but he could not walk. Crawford
was replaced by a relief operator on Monday, March 17, 2008, and was taken by
helicopter to Lafayette General Medical Center where physicians diagnosed him
with a stroke. Crawford has not returned to any kind of work following this
diagnosis.
      Crawford filed a claim for benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901–950, which Island and

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Louisiana Workers’ Compensation Corporation (collectively “Petitioners”)
contested. An administrative law judge (“ALJ”) concluded that Crawford’s
stroke was a preexisting condition that was not caused by Crawford’s work, but
that the stroke was aggravated by his working conditions because of the time
Crawford spent on the offshore platform before he was able to seek treatment.
Crawford had also suffered a shoulder injury, which the ALJ found was caused
by Crawford’s fall. Ultimately, the ALJ awarded Crawford compensation for
temporary total disability under 33 U.S.C. § 908(b) for the time period from
March 17 to April 2, 2008, and continuing compensation for permanent total
disability under 33 U.S.C. § 908(a). The ALJ also held Petitioners liable for the
medical expenses related to Crawford’s stroke and shoulder injury under 33
U.S.C. § 907.
      Petitioners appealed the ALJ’s decision and order to the Benefits Review
Board (“BRB”), contending that the ALJ erred in finding that Crawford’s
working conditions aggravated his stroke. The BRB affirmed the decision and
order of the ALJ, and Petitioners now appeal the order of the BRB.
                               II. DISCUSSION
A. Standard of Review
      The BRB hears appeals “raising a substantial question of law or fact taken
by any party in interest from decisions with respect to claims of employees under
[the LHWCA].” 33 U.S.C. § 921(b)(3). “The findings of fact in the decision under
review by the Board shall be conclusive if supported by substantial evidence in
the record considered as a whole.” Id. “Substantial evidence is evidence that
provides ‘a substantial basis of fact from which the fact in issue can be
reasonably inferred.’” Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006
(5th Cir. 1978) (quoting NLRB v. Columbian Enameling & Stamping Co., 306
U.S. 292, 299 (1939)). “Substantial evidence is more than a scintilla, and must
do more than create a suspicion of the existence of the fact to be established. ‘It

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means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Columbian Enameling & Stamping Co., 306 U.S. at
300 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, the
BRB lacks statutory authority to conduct a “de novo review of the evidence or
to substitute its views for those of the ALJ.” Mijangos v. Avondale Shipyards,
Inc., 948 F.2d 941, 944 (5th Cir. 1991).
      “Any person adversely affected or aggrieved by a final order of the Board
may obtain a review of that order in the United States court of appeals for the
circuit in which the injury occurred.” 33 U.S.C. § 921(c). “[O]ur review of BRB
decisions is limited to considering errors of law and ensuring that the Board
adhered to its statutory standard of review, that is, whether the ALJ’s findings
of fact are supported by substantial evidence and are consistent with the law.”
Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 287 (5th Cir.
2000); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1011 (5th Cir.
1981) (“Courts of Appeals examine BRB decisions for errors of law and to make
certain that the BRB has adhered to its scope of review. We likewise follow a
substantial evidence standard.”). “[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 & Mfg. 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).
“Moreover, if supported by the evidence and not inconsistent with the law, the
administrative law judge’s inference is conclusive.” Fulks, 637 F.2d at 1011; see
also Avondale Indus., Inc. v. Dir., Office of Workers’ Comp. Programs, 977 F.2d
186, 189 (5th Cir. 1992) (“The substantial evidence standard is less demanding
than that of preponderance of the evidence, and the ALJ’s decision need not
constitute the sole inference that can be drawn from the facts.”).



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B. Compensation under the LHWCA
      Under 33 U.S.C. § 903(a), the LHWCA provides for compensation for
“disability or death of an employee . . . if the disability or death results from an
injury occurring upon the navigable waters of the United States.” The LHWCA
defines an “injury” as “accidental injury or death arising out of and in the course
of employment . . . .” 33 U.S.C. § 902(2). “The words ‘arising out of’ instruct that
the employment must have caused the injury.” Bludworth Shipyard, Inc. v.
Lira, 700 F.2d 1046, 1049 (5th Cir. 1983).        “Aggravation of a preexisting
condition can be an injury under the [LHWCA].” Id. at 1049; see also Strachan
Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir. 1986); Cooper Stevedoring of
La., Inc. v. Washington, 556 F.2d 268, 271 (5th Cir. 1977) (discussing the “well-
established principle that aggravation of a preexisting condition is compensable
under the [LWHCA]”).        The aggravation rule requires an employer “to
compensate an employee for the full extent of the employee’s disability, including
any preexisting disability that the work-related injury worsens.” Strachan, 782
F.2d at 515.
      Under § 920(a), a claim is presumed to come within the provisions of the
LHWCA in the absence of substantial evidence to the contrary. “[I]nherent in
this provision is the presumption that an injury is causally related to a worker’s
employment.” Port Cooper, 227 F.3d at 287. Thus, to invoke the presumption
under § 920(a), “the claimant must make a prima facie showing of causation.”
Id. This requires a claimant to prove “(1) that he or she suffered harm, and (2)
that conditions existed at work, or an accident occurred at work, that could have
caused, aggravated, or accelerated the condition.” Id.; see also Gooden v. Dir.,
Office of Worker’s Comp. Programs, U.S. Dep’t of Labor, 135 F.3d 1066, 1068 (5th
Cir. 1998); Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (stating that
evidence showing that there is “realistic possibility” that an injury was work
related “sufficed . . . to require substantial evidence in refutation”).

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       Once a claimant makes a prima facie case of causation, the burden shifts
to the employer to rebut it with “substantial evidence to the contrary.” See 33
U.S.C. § 920(a); Port Cooper, 227 F.3d at 288 (“A presumption can be rebutted
by an employer through substantial evidence establishing the absence of a
connection between the injury and the employment.”). As stated above, “this
evidentiary standard is less demanding than the ordinary civil requirement that
a party prove a fact by a preponderance of evidence.” Ortco Contractors, Inc. v.
Charpentier, 332 F.3d 283, 287 (5th Cir. 2003) (emphasis omitted). “If the
employer rebuts the presumption, then the issue of causation must be decided
by looking at all the evidence of record.” Gooden, 135 F.3d at 1068.
C. Crawford’s Claim
       Petitioners in this case challenge the ALJ’s finding that Crawford was
entitled to the presumption under § 920(a) that working conditions had
aggravated the disability resulting from Crawford’s stroke.1 Petitioners contend
that Crawford failed to prove that working conditions or a work-related injury
aggravated his stroke.        Petitioners highlight that the ALJ concluded that
Crawford’s stroke was a preexisting condition that likely began before Crawford
fell on the steps and was unrelated to work. They further assert that Crawford
did not report that he was experiencing the symptoms of a stroke until at least
twenty-four hours after his fall. However, Dr. Wael Karim, the neurologist who
treated Crawford at Lafayette General Medical Center, testified that a stroke
such as Crawford’s would cause permanent and irreversible damage, except in
some cases where blood thinner is administered within three hours of the
stroke’s onset. Consequently, Petitioners contend that Crawford’s stroke had
already caused permanent and irreversible damage by the time Crawford
reported his symptoms. Thus, according to Petitioners, the aggravation of

       1
        On this appeal, Petitioners focus solely on the issue of aggravation and do not
challenge any rulings related to Crawford’s shoulder injury or the cause of Crawford’s stroke.

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Crawford’s condition was caused solely by Crawford’s own inaction and could not
have been caused by his working conditions, meaning that Crawford did not
present sufficient evidence to entitle him to the presumption under § 920(a).
      Petitioners liken this case to Bludworth Shipyard, Inc. v. Lira, 700 F.2d
1046 (5th Cir. 1983). In Bludworth, Alphonso Lira (“Lira”) brought a claim
under the LHWCA seeking compensation for, inter alia, the cost of a drug
detoxification program.    Id. at 1048–49.    Prior to working for Bludworth
Shipyard, Inc. (“Bludworth”), Lira was addicted to heroin. Id. at 1048. While
working at Bludworth, Lira injured his back and received pain-killing narcotics
as part of his treatment. Id. at 1048–49. Shortly thereafter, Lira began using
heroin again, and he contended that his work-related injury had aggravated his
preexisting condition (i.e., his propensity to use heroin). Id. at 1049. The BRB
determined that Bludworth had failed to rebut the presumption that Lira’s
readdiction was caused by his work injury, but this court reversed. Id. at 1049,
1052–53. Stressing that Lira had failed to disclose his past drug use on his
employment application because “he did not think he would get the job if he told
the truth” and that he again deliberately failed to disclose his past drug use to
the physicians treating him for his back injury, this court ruled that Lira’s
deliberate failure to disclose his past drug use “overpowered and nullified the
causal connection between his prior back injury and his subsequent readdiction
to heroin.” Id. at 1048, 1051.
      The instant case, however, is distinguishable from Bludworth.              In
Bludworth, the court was clear that its “holding stands for the limited
proposition that an employee’s unjustified, intentional misconduct may
constitute an intervening cause in circumstances presented here.” Id. at 1052
(emphasis added). The court further stated that, “[i]f the remote consequences
are the direct result of the employee’s unexcused, intentional misconduct, and
are only the indirect, unforeseeable result of the work-related injury, the

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employee may not recover under the LHWCA.” Id. at 1051 (emphasis added).
Petitioners have not set out any evidence suggesting that Crawford engaged in
any sort of misconduct by failing to report his symptoms more quickly than he
ultimately did. To the contrary, evidence suggests Crawford merely sought to
continue performing his normal work duties until his symptoms prevented him
from doing so. In the absence of any allegations of misconduct, Bludworth does
not govern our analysis.
      Petitioners further contend that the instant case resembles Ortco
Contractors, Inc. v. Charpentier, 332 F.3d 283 (5th Cir. 2003). In Charpentier,
Zeby Charpentier (“Charpentier”) came to work while he was having a heart
attack, which escalated into a full-blown cardiac arrest within roughly fifteen
minutes of his arrival at work. Id. at 286. In addressing whether Ortco
Contractors, Inc. (“Ortco”) had rebutted the presumption of causation under
§ 920(a), the court highlighted that “according to un-rebutted medical
testimony—[Charpentier’s heart attack] would have escalated to a fatal cardiac
arrest no matter where he was at that time, with the possible exception of the
hospital.” Id. at 291. The court further stated:
      To apply the aggravation rule in this context would empty it of any
      meaning under the LHWCA. If an employee’s pre-existing injury
      would necessarily be exacerbated by any activity regardless of where
      or when this activity takes place, and an employee happens to go to
      work, it is an impermissible leap of logic to say that there must be
      a causal connection between the worsening of the employee’s injury
      and his work.

Id. at 292. The court subsequently concluded that “Petitioners submitted
substantial evidence sufficient to rebut Charpentier’s § [9]20(a) presumption,
and this evidence established that [Charpentier’s] death at his place of
employment was, in essence, a coincidence.” Id. at 293.




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       Unlike the instant case, however, Charpentier addressed whether the
presumption under § 920(a) had been rebutted. Here, the inquiry focuses
instead on whether Crawford set out sufficient facts to entitle him to the § 920(a)
presumption.2 As discussed above, this is a relatively low threshold to meet and
requires Crawford to set out that “conditions existed at work . . . could have
caused, aggravated, or accelerated” his stroke. See Port Cooper, 227 F.3d at 287
(emphasis added). The three-hour time frame Dr. Karim discussed as being
particularly critical in treating Crawford’s stroke was not necessarily the only
time period relevant to Crawford’s treatment. Dr. Karim repeatedly stressed in
his testimony that treatment should be administered as soon as possible. He
further testified that post-stroke treatment includes controlling a patient’s blood
pressure, diabetes, and stopping the patient from smoking. Moreover, although
there was some evidence to the contrary, Crawford testified that he repeatedly
requested to be relieved from his post on the offshore platform so that he could
receive treatment. As a consequence, we agree with the BRB that substantial
evidence supports the ALJ’s inference that the damage caused by Crawford’s
stroke was aggravated by the six days he spent on the offshore platform before
he received treatment. See Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th
Cir. 1995) (“The ALJ’s selection among inferences is conclusive if supported by

       2
         The ALJ in this case acknowledged that there was some evidence that Crawford did
not take the earliest opportunity to return onshore but ultimately concluded that Petitioners
did not present substantial evidence to rebut the presumption that working conditions
aggravated Crawford’s stroke-related disability. As the BRB noted in its decision and order,
Petitioners did not challenge this finding on appeal to the BRB, and instead only contended
that Crawford had not established entitlement to the presumption under § 920(a). On the
appeal to this court, Petitioners contend that they produced sufficient evidence to rebut the
presumption that working conditions aggravated Crawford’s condition. However, Petitioners
have waived this argument by failing to raise it before the BRB, and as a consequence, we
decline to address the merits of this argument. See Aetna Cas. & Sur. Co. v. Dir., Office of
Worker’s Comp. Programs, U.S. Dep’t of Labor, 97 F.3d 815, 819 (5th Cir. 1996) (finding waiver
of an argument not raised before the BRB); Superior Boat Works, Inc. v. Cremeen, 303 F. App’x
183, 188 (5th Cir. 2008) (“Superior did not challenge the ALJ’s decision before the [BRB] and,
thus, has waived this issue on appeal.”).

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the evidence and the law.”). Thus, Crawford was entitled to the presumption
under § 920(a). Because this is the only issue properly preserved on appeal, we
AFFIRM the order of the BRB upholding the ALJ’s decision and order awarding
compensation to Crawford.
                             III. CONCLUSION
      For the reasons stated above, the order of the BRB is AFFIRMED.




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