                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               June 1, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                           No. 04-60689
                         Summary Calendar
                       ____________________


LAWRENCE A WALKER

                Petitioner

     v.

UNITED STATES RAILROAD RETIREMENT BOARD

                Respondent


_________________________________________________________________

     Appeal from the United States Railroad Retirement Board

                          No. 03-AP-0097
_________________________________________________________________

Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.

PER CURIAM:*

     Petitioner Lawrence A. Walker seeks review of a decision by

a three-member panel of the Railroad Retirement Board in which it

concluded that Respondent United States Railroad Retirement Board

was entitled to reimbursement of sickness benefits pursuant to

§ 12(o) of the Railroad Unemployment Insurance Act.     Because the

     *
            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that this opinion should not be published and is not precedent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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record contains substantial evidence to support the Board’s

decision, we AFFIRM.

                             I. BACKGROUND

     On November 19, 1990, Lawrence A. Walker, who was employed

as a carman by the Norfolk Southern Railway Company (“Norfolk”),

allegedly suffered an injury to his neck while performing a

company required stretching exercise.    As a result, Walker filed

a lawsuit against Norfolk for his alleged injury, a fracture to

the transverse process of the seventh cervical vertebral body.

Walker also claimed, and was paid, sickness benefits for his

injury under the Railroad Unemployment Insurance Act (“RUIA”), 45

U.S.C. § 351 et seq.   On December 11, 1990, the Railroad

Retirement Board (the “Board”) sent to Norfolk a notice of lien

under § 12(o) of the RUIA.    45 U.S.C. § 362(o).    The notice

advised Norfolk of the Board’s right to reimbursement for any

sickness benefits paid to Walker on account of Norfolk’s

liability.   During the period from November 20, 1990 through

January 21, 1998, Walker received a total of $29,925 in sickness

benefits.

     On May 15, 2002, Norfolk and Walker entered into a

settlement agreement in the amount of $199,999.99.      The amount of

sickness benefits paid to Walker, $29,925, was withheld from the

settlement to satisfy the Board’s lien.      On February 28, 2002,

Walker requested reconsideration of the amount of the Board’s



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lien, claiming that the sickness benefits he received were not

paid as a result of his November 19, 1990 injury, but rather as a

result of an unrelated lower back problem.   Walker’s request was

denied, and he subsequently appealed to the Board’s Bureau of

Hearings and Appeals.   On September 8, 2003, a hearing officer

denied Walker’s appeal after determining that his claims for

sickness benefits, like the settlement agreement, were based on

the injury he allegedly sustained on November 19, 1990.   Walker

then appealed to the Board itself.

     On May 14, 2004, the Board denied Walker’s appeal.   The

Board noted that the injury for which Walker recovered under the

settlement was a fractured transverse process.   The Board further

noted that each time Walker claimed sickness benefits, he claimed

a transverse process fracture as one of the causes of his

inability to work.   The Board noted that Walker’s doctor, Raul M.

Diaz, testified that after August 1991, Walker was able to return

to heavy physical labor.   However, the Board also noted that Dr.

Diaz had signed multiple supplemental doctor’s statements

accompanying Walker’s applications for sickness benefits, which

stated that Walker’s inability to work was due to a cervical

transverse process fracture.   The Board found that the multiple

statements of sickness filed by Dr. Diaz were entitled to greater

weight in determining whether Walker was unable to work because

of a cervical transverse fracture.   Thus, the Board concluded

that Walker was paid sickness benefits for a cervical transverse

                                 3
fracture, and since Walker recovered from Norfolk for this same

injury, the Board was entitled to reimbursement.    Walker now

appeals the Board’s decision.

                      II. STANDARD OF REVIEW

     The Board’s decision is subject to review by this court

under § 5(f) of the RUIA.1   45 U.S.C. § 355(f).   A decision by

the Board is not to be set aside on judicial review if its

findings of fact are supported by substantial evidence in the

record and if it is not based on an error of law.    45 U.S.C.

§ 355(f); Elzy v. R.R. Ret. Bd., 782 F.2d 1223, 1224 (5th Cir.

1986); Fingar v. United States R.R. Ret. Bd., 402 F.2d 544, 547

(5th Cir. 1968).   “Evidence is substantial if it consists of

‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’”   Elzy, 782 F.2d at 1224

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

“While we require more than a mere scintilla of evidence, we may

not substitute our judgment for that of the Board.”    Id.; see

also Davis v. Schweiker, 641 F.2d 283, 285 (5th Cir. 1981).

     1
          Section 5(f) of the RUIA states in pertinent part:

     (f) Review of final decision of Board by Courts of
     Appeals; costs. Any claimant . . . aggrieved by a final
     decision under subsection (c) of this section, may, only,
     after all administrative remedies within the Board will
     have been availed of and exhausted, obtain a review of
     any final decision of the Board . . . in the United
     States    circuit   court    of    appeals   [court    of
     appeals] . . . .

45 U.S.C. § 355(f).

                                 4
                          III. DISCUSSION

     Under § 2 of the RUIA, the Board is authorized to pay

sickness benefits to qualified railroad employees.2    45 U.S.C.

§ 362.   The Board must pay sickness benefits without regard for

the liability of any person to pay damages for the underlying

sickness or, in this case, injury.   Id.    The Board, however, is

entitled to reimbursement from any damages payable or paid to the

employee by a person liable for the same injury.     Id.   Upon

notice to the liable party, the Board shall have a lien on any

damages paid by that party to the extent of the amount of

sickness benefits it paid to the employee.     Id.

     The only issue before us is whether there is substantial

evidence in the record to support the Board’s finding that Walker

     2
           Section 12(o) of the RUIA specifically provides:

     (o) Liability of third party for sickness; reimbursement
     of Board. Benefits payable to an employee with respect to
     days of sickness shall be payable regardless of the
     liability of any person to pay damages for such
     infirmity. The Board shall be entitled to reimbursement
     from any sum or damages paid or payable to such employee
     or other person through suit, compromise, settlement,
     judgment, or otherwise on account of any liability (other
     than a liability under a health, sickness, accident, or
     similar insurance policy) based upon such infirmity, to
     the extent that it will have paid or will pay benefits
     for days of sickness resulting from such infirmity. Upon
     notice to the person against whom such right or claim
     exists or is asserted, the Board shall have a lien upon
     such right or claim, any judgment obtained thereunder,
     and any sum or damages paid under such right or claim, to
     the extent of the amount to which the Board is entitled
     by way of reimbursement.

45 U.S.C. § 362(o).

                                 5
received sickness benefits for the injury he sustained on

November 19, 1990 (a fracture of the cervical transverse

process)--the same injury for which he settled with Norfolk.

Walker argues that the injury he sustained on November 19, 1990

had healed completely as of August 1, 1991.   Walker asserts that

after August 1, 1991, he claimed sickness benefits for multiple

medical conditions, including degenerative disc disease of the

lumbar spine, high blood pressure, and various mental and

emotional conditions.   To support his claim, Walker points to

evidence in the record that he was diagnosed with a cervical

strain, an injury he sustained on October 12, 1991.   Walker also

points to the fact that he was diagnosed with a degenerative disc

disease in November 1994.    However, as the Board noted, Walker’s

doctor, Dr. Diaz, signed multiple supplemental doctor’s

statements from 1990 to 1997, which accompanied Walker’s

applications for sickness benefits, averring that Walker’s

inability to work was due to a cervical transverse process

fracture.   Further, in his applications for sickness benefits,

Walker indicated November 19, 1990 as the date he became injured.

Dr. Diaz also indicated November 19, 1990 as the date of injury

in the supplemental doctor’s statements that he signed.    Thus, we

conclude that the evidence in the record is sufficient to support

the Board’s conclusion.

                            IV. CONCLUSION



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    For the foregoing reasons, the decision of the Board is

AFFIRMED.




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