     Case: 19-60672      Document: 00515401282         Page: 1    Date Filed: 04/30/2020




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

                                                                                   FILED
                                                                                 April 30, 2020
                                      No. 19-60672
                                                                                Lyle W. Cayce
                                                                                     Clerk
ISLAND OPERATING COMPANY, INCORPORATED; LOUISIANA
WORKERS’ COMPENSATION CORPORATION,

                Petitioners

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; HENRY JONES,

                Respondents




                           Petition for Review of an Order
                            of the Benefits Review Board
                                   BRB No. 19-117


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
GREGG COSTA, Circuit Judge:*
         An administrative law judge awarded Henry Jones compensation under
the Longshore and Harbor Workers’ Compensation Act. Jones’s employer,
Island Operating Co., appealed that decision to the Benefits Review Board.
The Board affirmed. Island Operating appeals again. Once again its challenge
fails.


         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. 19-60672
                                        I.
      For more than 25 years, Jones worked as a production operator for Island
Operating. Throughout that lengthy career, Jones performed manual labor on
oilfield platforms in the Gulf of Mexico without suffering serious injury. That
changed on September 9, 2016.
      Jones began the day unloading boxes of supplies onto his boat. After
doing that for several hours, he moved on to another physically demanding
task. It involved using “extreme pressure” to dislodge a carbon-fiber tool from
the boat’s vent separator with an industrial drill. Fifteen to twenty minutes
into the exercise, he felt a sudden urge to use the restroom.
      Jones handed the drill to his supervisor and rushed upstairs to the
nearest toilet. Once there, he had two bloody bowel movements. Jones was
“extremely concerned,” so he quickly reported the bleeding to his supervisor.
Jones did not mention that he felt lower-back and leg pain before he ascended
the stairs.
      That pain, which fluctuates between moderate and severe, continues to
this day. But it took Jones a while to report the pain to his employer or doctors.
Five days after the accident, for instance, Jones visited the gastroenterologist’s
office and said nothing of it. The nurse practitioner there diagnosed him with
anal fissures and released him back to work with no restrictions. But Jones
did not return to work because he was on scheduled leave for two more weeks.
He hoped he would recover in that time.
      His hope soon dissipated. Island Operating sent Jones a letter stating
that a person with “current or chronic back pain . . . may not qualify” for his
labor-intensive job.   Jones, realizing he could no longer pass a physical
performance test, was afraid that he might lose his job. So he reported his
back pain to Stafford Medical, the independent doctors Island Operating uses
for pre-employment physicals. Jones also requested twelve weeks under the
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                                 No. 19-60672
Family and Medical Leave Act starting September 22. It was not until nearly
a month after Jones stopped working that he formally notified Island
Operating that he was seeking benefits for a workplace injury.
      Jones then went to see Dr. Clark Gunderson, an orthopedist.            Dr.
Gunderson diagnosed Jones with a ruptured disc. He later testified that it was
more probable than not that Jones’s symptoms were related to the injuries he
sustained on September 9. Dr. Gunderson believed that Jones suffered from
“degenerative” changes in his lumbar spine but did not become symptomatic
until the September incident. An MRI confirmed the diagnosis. Even so,
Jones’s insurance did not approve the treatment Dr. Gunderson ordered.
      Island Operating also refused to pay Jones benefits because he originally
reported only an illness (the bloody stool), not a work-related back injury. The
company referred Jones to Dr. Neil Romero for a second opinion. Dr. Romero
largely echoed Dr. Gunderson’s findings, noting that Jones had a herniated
disc. He also confirmed that Jones had “advanced degenerative changes” in
his lumbar spine that likely predated the September 9 injury. Dr. Romero was
“unsure” whether the injury and pain were caused by Jones’s “straining to have
a bowel movement” or performing manual labor. But he did think it was “likely
related to an incident occurring in either September or October of 2016.”
      Despite Dr. Romero’s opinion, Island Operating still refused to pay Jones
benefits. So he pursued administrative remedies. Both an ALJ and the Board
found that Jones was entitled to benefits. This appeal followed.
                                      II.
      We review the Board’s decision under a highly deferential standard,
assessing only “whether it has adhered to its proper scope of review—i.e.,
whether the ALJ's findings of fact are supported by substantial evidence and
are consistent with the law.” Ceres Gulf, Inc. v. Dir., OWCP, 683 F.3d 225, 228
(5th Cir. 2012) (quotations omitted). “Substantial evidence is that relevant
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                                 No. 19-60672
evidence—more than a scintilla but less than a preponderance—that would
cause a reasonable person to accept the fact finding.” Id. (quotations omitted).
      Jones is entitled to benefits under the Act if a workplace accident
aggravated his pre-existing back condition. Bis Salamis, Inc. v. Dir., OWCP,
819 F.3d 116, 128 (5th Cir. 2016). Such claims are evaluated under a three-
step framework. Sea-Land Servs. v. Dir., OWCP, 949 F.3d 921, 925 (5th Cir.
2020). First, Jones must establish a prima facie case of causation “by showing
that (1) he suffered harm and (2) conditions of the workplace, or an accident at
the workplace, could have caused, aggravated, or accelerated the harm.” Id.
(quoting Bis Salamis, 819 F.3d at 127). Doing so raises a presumption under
section 20(a) of the Act that his injury was “work-related” and that he “is
entitled to compensation.” Id.; see also 33 U.S.C. § 920(a).
      Jones easily established the presumption.           As to harm, the ALJ
concluded that “[t]he medical evidence and physician opinions” showed that
Jones “suffer[e]d from a herniation in his lumbar spine.”         For the second
element, Drs. Gunderson and Romero both testified that “lifting groceries over
a number of hours” and “operat[ing] an industrial drill” could have caused that
harm. Ceres Gulf, 683 F.3d at 229.
      The burden then shifted to Island Operating to rebut the presumption
by “presenting substantial evidence that its workplace did not cause or
aggravate [Jones’s] injury.” Sea-Land, 949 F.3d at 925. On this point the ALJ
and Board disagreed. The ALJ found that Dr. Romero’s testimony rebutted
the presumption. The Board concluded otherwise. As a result, Jones won at
step two with the Board, because an unrebutted presumption that the injury
is work-related entitles the worker to benefits. Bis Salamis, 819 F.3d at 130
n.9 (citing Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287, 290 (5th
Cir. 2003)).


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                                 No. 19-60672
      But the Board went on to alternatively conclude that substantial
evidence supported the ALJ’s finding of “work-related” injury at step three—
the ultimate causation inquiry. See Sea-Land, 949 F.3d at 925. That final
determination of causation requires the claimant to show by a preponderance
of the evidence that his work caused the injury. Id.
      Because the ALJ and Board both concluded that Jones met his ultimate
burden of proof even without the help of the presumption, we need not resolve
the “step two” dispute about whether that presumption stayed in the case. Cf.
Nall v. BNSF Ry. Co., 917 F.3d 335, 348 (5th Cir. 2019) (assuming that an
employer met its obligation at step two of the McDonnell-Douglas summary
judgment framework for discrimination cases because the plaintiff prevailed
on the third-stage question of ultimate causation). Jones is entitled to benefits
if substantial evidence supported the ALJ’s conclusion that it was “more likely
than not that his work on the rig on [September 9, 2016] aggravated his pre-
existing [lumbar] condition.”
      Island Operating’s challenge to the ALJ’s causation finding mostly
attacks Jones’s credibility. That means the standard of review resolves the
appeal.    Island Operating is correct that Jones repeatedly withheld
information about his injury. But impeaching a witness’s credibility does not
automatically require the factfinder to “set[] aside” that testimony as Island
Operating argues. Instead, the factfinder gets to weight the impact of that
impeachment and choose whether to reject or accept the testimony. Ceres Gulf,
683 F.3d at 229. In crediting Jones’s testimony, the ALJ did not ignore his
credibility problems.    To the contrary, the judge acknowledged them in a
thorough opinion that explained why he nonetheless concluded the injury was
work-related. Medical testimony and records, Jones’s testimony, the timing of
events, and the nature of Jones’s work all support that determination. It is not
enough on substantial evidence review for Island Operating to show that the
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                                  No. 19-60672
factfinder could have or even should have reached a different conclusion. It
has to show that a reasonable factfinder could not have reached the conclusion
that it did. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (explaining
that substantial evidence “means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion”). Because Island Operating
has not made that difficult showing, we cannot disturb the ruling that Jones is
entitled to workers’ compensation.
                                       III.
      Jones seeks attorney’s fees given his victory in this dispute. It is unclear
if he seeks fees for the full course of proceedings or just those incurred in this
appeal. We cannot do anything about fees related to the hearings before the
ALJ and Board. The record does not reveal that Jones ever requested fees in
those proceedings. See 33 U.S.C. § 928(c) (stating that the “Board or court may
approve an attorney’s fee for the work done before it” (emphasis added); Dir.,
OWCP v. Black Diamond Coal Mining Co., 598 F.2d 945, 953 (5th Cir. 1979)
(recognizing that the Benefits Review Board must first rule on a fee request
for work before that tribunal). And if we are missing something and he did ask
for them without success, then Jones would have needed to cross appeal that
ruling. Compare Alford v. Lubbock, 664 F.2d 1263, 1272–73 (5th Cir. 1982)
(refusing to consider challenge to denial of fee request when appellee did not
cross appeal), with Janvey v. Dillon Gage, Inc., 856 F.3d 377, 392 (5th Cir.
2017) (considering a cross-appeal challenging denial of fee request).
      We do have authority, however, to award fees incurred in defending the
appeal to our court. See 33 U.S.C. § 928(c). Jones is entitled to fees because
he “successfully prosecut[ed] his claim” after Island Operating refused to pay
workers’ compensation. Id. § 928(a). Jones should file a motion detailing the
time his counsel spent on this appeal and the market’s hourly rate for such


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                                No. 19-60672
work so we can award a reasonable amount. See Bollinger Shipyards, Inc. v.
Dir. OWCP, 314 F. App’x 683, 687 (5th Cir. 2009).
                                    ***
     We DENY Island Operating’s petition for review. We GRANT Jones’s
request for reasonable attorney’s fees incurred in defending this appeal. The
court will determine the appropriate amount of fees after considering Jones’s
fee request and any response.




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