                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   May 12, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                            No. 04-60598                        Clerk
                          Summary Calendar
                       _____________________

 OPERATORS & CONSULTING SERVICES, INCORPORATED; ZURICH AMERICAN
                       INSURANCE COMPANY,

                             Petitioners,

                                versus

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US DEPARTMENT
 OF LABOR; DANOS & CUROLE MARINE CONTRACTORS INCORPORATED; GRAY
                INSURANCE COMPANY; JAMES MORRISON,


                           Respondents.
_________________________________________________________________

                 Petition for Review of an Order
                   of the Benefits Review Board
                              03-0541
_________________________________________________________________

Before JONES, BARKSDALE and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

     This appeal involves a claim for benefits under the

Longshore and Harbor Workers’ Compensation Act (“the Act”).1       In

their petition for review, petitioners Operators and Consulting

Services, Inc. and Zurich American Insurance Company (together,

“OCS”) ask this court to set aside an order by the Administrative

     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
     1
      33 U.S.C. §§ 901-50.

                                   1
Law Judge (“ALJ”) holding them responsible for the claimant’s

disability compensation and medical costs.   For the reasons

discussed below, this court denies OCS’s petition for review.

Factual Background

     Before the injury which is at the heart of this appeal

occurred, OCS provided workers for the operation of an offshore

platform pursuant to a contract with Burlington Resources.     OCS

hired claimant-respondent James Morrison as a field mechanic to

repair mechanical equipment on the platform.   As a mechanic,

Morrison was required to carry equipment weighing up to 75

pounds.   On October 16, 1997, Morrison injured his back while

climbing up a ladder.   A week after the accident, Morrison sought

treatment for his injury from Dr. Karri Gramlich, a chiropractor.

Dr. Gramlich treated Morrison until February 1998, at which point

she reported that Morrison was ready to resume work on a normal

basis.

     In May 1998, Burlington Resources terminated its contract

with OCS and contracted with respondent Danos & Curole Marine

Contractors (“Danos & Curole”) to provide workers for the

platform.   Danos & Curole hired Morrison on May 8, 1998 after he

successfully completed a preemployment agility test.   On May 22,

Morrison returned to Dr. Gramlich for treatment, complaining of

pain in his left leg.   Dr. Gramlich treated Morrison until

September 1998.   Because his condition showed little improvement,



                                 2
Dr. Gramlich referred Morrison to Dr. Andrew Wilson, a

neurosurgeon.   Dr. Wilson began treating Morrison on September

15, 1998, but Morrison’s condition worsened to the point that he

was unable to continue working.    Danos & Curole terminated

Morrison on October 22, 1998.    Dr. Wilson operated on Morrison’s

back on July 9, 2001.

     Morrison filed claims for disability compensation and

medical expenses under the Act against both OCS and Danos &

Curole.   Danos & Curole denied responsibility for Morrison’s

disability, maintaining that the disability resulted from the

natural progression of the October 16, 1997 injury Morrison

suffered while working for OCS.    After considering the evidence,

the ALJ agreed with Danos & Curole.    The ALJ found that

Morrison’s disability was attributable to the injury he sustained

while working for OCS and that Morrison’s back condition was not

aggravated by his employment with Danos & Curole.    The ALJ,

therefore, concluded that OCS was responsible for all of

Morrison’s disability compensation and medical expenses.

     OCS appealed to the Department of Labor’s Benefits Review

Board (“the Board”).    The Board affirmed the ALJ’s ruling.    OCS

now asks this court to set aside the ALJ’s order.

Standard of Review

     This court reviews a decision of the Board using the same




                                  3
standard the Board applies to review a decision of the ALJ.2    That

is, this court determines whether the ALJ’s decision is supported

by substantial evidence.3   “Substantial evidence is that relevant

evidence——more than a scintilla but less than a preponderance——

that would cause a reasonable person to accept the fact finding.”4

This court may not substitute its judgment for that of the ALJ,

nor reweigh or reappraise the evidence; instead, it may only

determine whether evidence exists to support the ALJ's findings.5

This court will uphold the Board’s decision if the ALJ’s decision

is supported by substantial evidence.6

Analysis

     OCS challenges the ALJ’s determination that it is solely

responsible for Morrison’s disability.   OCS maintains that

Morrison’s injury was aggravated while he worked for Danos &

Curole, and that as a result, Danos & Curole is liable for the

costs of Morrison’s disability.   Specifically, OCS contends that

the ALJ misapplied the “aggravation rule.”



     2
      SGS Control Servs. v. Dir., Office of Worker’s Comp.
Programs, 86 F.3d 438, 440 (5th Cir. 1996).
     3
      SGS Control Servs., 86 F.3d at 440.
     4
      Dir., Office of Workers' Comp. Programs, U.S. Dep’t of
Labor v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir.
1997).
     5
      SGS Control Servs., 86 F.3d at 440.
     6
      33 U.S.C. § 921(b)(3).

                                  4
     The “aggravation rule” is a judicially created rule for

allocating liability among employers for a worker’s injury.7      The

rule provides that if a claimant’s disability arose from the

natural progression of an injury sustained while working for the

first employer, that employer is completely liable for the

subsequent expenses the claimant incurs from the injury, even

after the claimant no longer works for the first employer.8

However, in cases where the disability results from cumulative

traumas, the responsible employer depends upon the cause of the

worker's ultimate disability.9   If the disability is “at least

partially the result of a second trauma that occurs while working

for a second employer and that injury aggravates, accelerates or

combines with the prior injury to create the ultimate

disability,” the second employer is liable for all medical

expenses and compensation.10   Thus, the dispositive issue in this

appeal is whether Morrison’s disability arose from the natural


     7
      See Cooper/T. Smith Stevedoring Co., Inc. v. Liuzza, 293
F.3d 741, 749 (5th Cir. 2002) (discussing the aggravation rule
for allocating liability for an occupational disease that
develops after prolonged exposure to an injurious stimuli).
     8
      See Metro. Stevedore Co. v. Crescent, 339 F.3d 1102, 1105
(9th Cir. 2003) (describing the last responsible employer
rule——otherwise known as the aggravation rule——in the context of
an occupational disease); Strachan Shipping Co. v. Nash, 782 F.2d
513, 517 (5th Cir. 1986) (explaining that this circuit has
consistently applied the aggravation rule in longshoremen cases).
     9
      Metro. Stevedore Co., 339 F.3d at 1105.
     10
          Id.

                                  5
progression of the injury suffered on October 16, 1997 while he

worked for OCS, or whether his disability was caused by an

aggravation, exacerbation, or acceleration of that injury while

he worked for Danos & Curole.

     Here, substantial evidence supports the ALJ’s finding that

Morrison’s disability resulted solely from the injury he suffered

during his employment with OCS.   Dr. Wilson testified in his

deposition that he began treating Morrison in September 1998.

Dr. Wilson opined that Morrison’s injury naturally progressed to

the point that surgery was the only way to mitigate further

damage.   Dr. Wilson admitted, however, that there was a

possibility that Morrison’s employment with Danos & Curole

exacerbated Morrison’s condition.

     Dr. Gramlich also attributed Morrison’s surgery to the

injury that occurred in October 1997.   She acknowledged that

working for Danos & Curole may have aggravated Morrison’s back

condition, but opined that the herniated disk that required

surgery resulted from Morrison’s original injury during his

employment with OCS.

     In addition, Morrison testified that he continued to

experience lower back pain while working for OCS.   Morris

explained that nothing about his job changed when he began

working for Danos & Curole.   He stated that he continued to

perform the same job on the same platforms, but explained that he

worked smarter to avoid hurting his back.   He described his job

                                  6
with Danos & Curole as neither more nor less strenuous than his

work with OCS.   Together, testimony from these witnesses

constitutes substantial evidence that Morrison’s disability

resulted from the natural progression of the injury he suffered

in October 1997.

     OCS argues that passing the preemployment agility test shows

that Morrison’s back was no longer impaired when he began working

for Danos & Curole.   However, Martin Knijn, the physical

therapist who conducted the agility test, testified that the test

was designed to test capabilities, not the amount of stress the

back could sustain.   Knijn explained that the successful

completion of the test demonstrates that an employee is capable

of performing most of his job duties for a limited amount of

time.   Thus, passing a preemployment agility test does not

necessarily indicate that Morrison’s initial back injury was

resolved by the time he began working for Danos & Curole.

     OCS also argues that Morrison’s strenuous work activities

with Danos & Curole over a five month period demonstrate that the

disability arose from an aggravation or acceleration of a

preexisting injury.   Morrison, however, testified that his job

with Danos & Curole was neither more nor less strenuous than his

work with OCS, and he did not testify that he suffered a

subsequent injury.    Although Morrison explained that Dr. Gramlich

released him to return to work for OCS, substantial evidence

indicates that he was not symptom-free at that time and that his

                                  7
pain progressively increased throughout the time he worked for

OCS.

       Substantial evidence supports the ALJ’s finding that

Morrison’s disability resulted from the natural progression of

his October 1997 injury; thus, under the “aggravation rule,” OCS,

as the first employer, is solely responsible for Morrison’s

disability.

Conclusion

        The ALJ did not err by determining that OCS is responsible

for Morrison’s disability compensation and medical costs because

substantial evidence indicates that Morrison’s disability was

caused by his injury while working for OCS.    As a result, the

Board properly affirmed the ALJ’s decision.    Consequently, this

court DENIES the petition for review.

PETITION DENIED.




                                  8
