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

                                                 FILED
                                                                           March 12, 2009

                                       No. 08-60348                    Charles R. Fulbruge III
                                                                               Clerk

BOLLINGER SHIPYARDS INC; AMERICAN LONGSHORE MUTUAL
ASSOCIATION

                                                   Petitioners
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR; WARREN FONTENETTE, III

                                                   Respondents




                      Petition for Review of an Order of the
            United States Department of Labor Benefits Review Board
                                 BRB No. 07-0629


Before KING, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Bollinger Shipyards Incorporated seeks review of a decision by the
Benefits Review Board that granted claimant Warren Fontenette benefits and
attorneys’ fees. Bollinger argues that the Board’s decision is not supported by
substantial evidence. Under our deferential standard of review, we DENY
Bollinger’s petition and AFFIRM the Board’s decision.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-60348

                              I. BACKGROUND
      Warren Fontenette was hired in January 2005 as a painter and
sandblaster for Bollinger Quick Repair. Fontenette alleges that on the night of
March 3, 2005, while he was climbing out of a hold on a barge, a wave rocked the
barge.      This caused Fontenette to fall and injure himself.        Numerous
discrepancies in Fontenette’s story exist regarding his injury and how it was
reported.     Supposed witnesses to the injury have recounted the story in
inconsistent manners. Bollinger contends that Fontenette was never injured at
work, and therefore, it should not have to pay benefits to Fontenette.
      After Bollinger refused to pay benefits to Fontenette, he filed a claim
under the Longshore and Harbor Workers’ Compensation Act. At the beginning
of the administrative hearing, the parties entered a stipulation that included
this: “if Claimant was injured, as alleged on March 3, 2005, his injury occurred
during the course and scope of his employment with Employer.” The factual
issue continues to be whether the claimant’s injuries occurred on that day.
      At the end of the hearing, the ALJ found that Fontenette’s testimony
regarding his accident was unpersuasive and unreliable. However, the ALJ
found that this was due to Fontenette’s confusion and not to an intent to deceive.
The ALJ also determined that Fontenette had been consistent in his description
of his accident to his supervisors and doctors. Despite the credibility concerns,
and due largely to medical expert testimony that Fontenette’s condition was
consistent with having been injured in a fall at work, the ALJ found sufficient
evidence that Fontenette was injured at work. Benefits and attorneys’ fees were
granted to Fontenette. The Board affirmed.
      Bollinger alleges four instances of error by the Board: (1) awarding any
benefits to Fontenette, (2) finding that Bollinger had not established suitable
alternative employment, (3) calculating Fontenette’s damages, and (4) awarding
Fontenette attorneys’ fees and expenses. We will discuss each.

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                               II. DISCUSSION
      Under the Longshore and Harbor Workers’ Compensation Act, the Board
must “accept the findings of the ALJ if they are rational and supported by
substantial evidence in the record considered as a whole.” Gulf Best Elec., Inc.
v. Methe, 396 F.3d 601, 603 (5th Cir. 2004); see also 33 U.S.C. § 921(b)(3). “The
Board may not substitute its judgment for that of the ALJ or engage in a de novo
review of the evidence.” Gulf Best, 396 F.3d at 603. We then review the Board’s
actions to determine whether it examined the ALJ’s fact-findings for substantial
evidence and the ALJ’s legal conclusions for consistency with the law. Id. This
court may not substitute its judgment or reweigh or reappraise the evidence.
Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 287 (5th Cir.
2000). “The ALJ is the factfinder and is entitled to consider all credibility
inferences. The ALJ’s selection among inferences is conclusive if supported by
the evidence and the law. The ALJ determines the weight to be accorded to
evidence and makes credibility determinations.” Mendoza v. Marine Pers. Co.,
46 F.3d 498, 500-01 (5th Cir. 1995) (internal quotation marks and citations
omitted).
      As can be seen, there is an extremely high hurdle to overcome for a
petitioner seeking to reverse a Board order.
A.    Fontenette’s Benefits
      A presumption of coverage arises under Section 20(a) of the Longshore and
Harbor Workers’ Compensation Act once a claimant makes “a prima facie
showing that (1) he suffered a harm and (2) a condition of the workplace could
have caused, aggravated, or accelerated the harm.” Amerada Hess Corp. v. Dir.,
OWCP, 543 F.3d 755, 761 (5th Cir. 2008); see 33 U.S.C. § 920(a). If the claimant
is successful in raising this presumption, the employer can rebut the
presumption by providing “substantial evidence to the contrary.”           Ortco
Contractors, Inc. v. Charpentier, 332 F.3d 283, 289 (5th Cir. 2003). The employer

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must prove “through facts—not mere speculation—that the harm was not work-
related.” Conoco, Inc. v. Dir., OWCP, U.S. Dep’t of Labor, 194 F.3d 684, 687-88
(5th Cir. 1999) (emphasis in original). If the employer successfully rebuts the
presumption, it “drops out of the case and causation is determined by looking at
the totality of the evidence.” Amerada Hess Corp., 543 F.3d at 761.
      In this case, the ALJ found that the Section 20(a) presumption applied,
that Bollinger had not rebutted it, and that, even if Bollinger had rebutted the
presumption, the totality of the evidence favored Fontenette. The ALJ based
this decision largely on the fact that medical expert testimony supported
Fontenette’s claim. Bollinger argues that Fontenette and his witnesses were not
credible and that the injury could not have happened on the date and time that
Fontenette alleged. However, the ALJ took this into consideration and still
found that the evidence favored Fontenette. Medical testimony can form the
basis for a successful claim for benefits regardless of whether the claimant is
deemed credible. See Conoco, 194 F.3d at 691.
      Doubts regarding the evidence are resolved in favor of the employee in
accordance with the remedial purposes of this Act. Empire United Stevedores v.
Gatlin, 936 F.2d 819, 822 (5th Cir. 1991). Substantial evidence supported the
ALJ’s decision to award benefits.
B.    Suitable Alternative Employment
      The ALJ found that Fontenette was temporarily totally disabled. The
Board affirmed. Bollinger does not dispute the finding. Once a prima facie case
of total disability has been made, the burden shifts to the employer to show that
there is suitable alternative employment available to the claimant. La. Ins.
Guar. Ass’n v. Abbott, 40 F.3d 122, 127 (5th Cir. 1994).
      Determining the availability of suitable alternative employment involves
answering two questions:



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      (1) Considering claimant’s age, background, etc., what can the
      claimant physically and mentally do following his injury, that is,
      what types of jobs is he capable of performing or capable of being
      trained to do? (2) Within this category of jobs that the claimant is
      reasonably capable of performing, are there jobs reasonably
      available in the community for which the claimant is able to
      compete and which he could realistically and likely secure?

New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1042 (5th Cir. Unit
A Nov. 1981). Using this standard, the ALJ reviewed the vocational evidence
presented by experts hired by both parties.
      The ALJ weighed the evidence, including the fact that some sedentary
work was available to Fontenette. However, based largely on the opinion of
Bollinger’s medical expert, the ALJ held that, without treatment, there was no
suitable alternative employment for Fontenette. Bollinger offered no evidence,
medical or otherwise, to the contrary.      We find that substantial evidence
supported the ALJ’s decision that suitable alternative employment was not
available to Fontenette.
C.    Calculation of Damages for Lost Wages
      When a claimant establishes disability resulting from a work injury, the
ALJ next determines the claimant’s average weekly wage. This is determined
in one of three ways. Both parties agree that Section 10(c) of the Act governs the
determination of Fontenette’s average weekly wage. See 33 U.S.C. § 910(c). The
purpose of Section 10(c) is to determine a “sum that reasonably represents a
claimant’s annual earning capacity at the time of the injury.” Empire United
Stevedores, 936 F.2d at 823 (citation omitted). Earning capacity is defined as
“the amount the employee would have the potential and opportunity of earning
absent the injury.” Id. The ALJ has broad discretion in determining the earning
capacity of a claimant at the time of the injury. Id.; Mar-Con/Thunder Crane,
Inc. v. Nelson, 273 F. App’x. 370, 371 (5th Cir. 2008).



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      In this case, the ALJ concluded that Fontenette’s average weekly wage
should be calculated using the pay he had received during his eight weeks
working for Bollinger. Bollinger challenges the ALJ’s decision, arguing that
Fontenette’s average weekly wage should have been determined using his
highest yearly wages in any prior year as determined by looking at his social
security earnings, which would have resulted in a lower average weekly wage.
We have noted in a previous case that a change in circumstances, such as a
recent change in work, could provide a reason for finding annual earnings at the
time of the accident greater than the claimant’s actual annual earnings in the
immediately preceding years. New Thoughts Finishing Co. v. Chilton, 118 F.3d
1028, 1031 (5th Cir. 1997) Fontenette had recently secured a new, steadier,
higher paying job with Bollinger. He held that job for eight weeks before his
alleged injury. We find the decision to be within the ALJ’s range of discretion.
We affirm the calculation of lost wages.
D.    Attorneys’ Fees
      Pursuant to 33 U.S.C. § 928(a), a claimant in Fontenette’s position is
eligible to have attorneys’ fees awarded to him by the court. In a supplemental
order, the ALJ approved an award of attorneys’ fees to Fontenette. The Board
affirmed that award. “The amount of attorney’s fees is discretionary and may
be set aside by the Board only if it is arbitrary, capricious, an abuse of discretion,
or not in accordance with law.” Conoco, 194 F.3d at 688. We do not find that the
ALJ abused his discretion in awarding attorneys’ fees to Fontenette.
      In his brief, Fontenette also requests attorneys’ fees for the appeals to the
Board and then to this court. The Board’s order noted that Fontenette had
requested fees there, but that he had not yet filed a proper petition. As the
prevailing party before the Board and also before this court, Fontenette may be
eligible for an award of attorneys’ fees resulting from each proceeding. However,
Fontenette’s counsel needs to submit a motion detailing his billing records for

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his appeal to this court. Then we will make a decision regarding attorneys’ fees
incurred for the appeal from the Board. See id. at 692. The issue of attorneys’
fees before the Board must first be decided by the Board.         Hole v. Miami
Shipyards Corp., 640 F.2d 769, 773 (5th Cir. Unit B Mar. 1981).
                              III. CONCLUSION
      We DENY the petition for review and AFFIRM the Board. We instruct
Fontenette to submit proper billing records to this court for the fees relevant to
the appeal here. Upon our resolution of that issue, we will remand this case to
the Board for its determination of the propriety and amount of attorneys’ fees
relevant to the appeal from the ALJ to the Board.




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