                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS           October 26, 2006
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                   Clerk

                            No. 05-61083
                          Summary Calendar

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CHEVRON USA, INC; CRAWFORD & CO, INSURANCE CARRIER

                Petitioners,

     v.

CHRISTOPHER HEAVIN; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR

                Respondents.


  Petition for Review of an Order of the Benefits Review Board
                            (04-0661)



Before DEMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Petitioners Chevron USA, Inc. (“Chevron”) and Crawford & Co.

(“Crawford”) appeal the order of the Benefits Review Board (“BRB”

or “the Board”) affirming the administrative law judge’s (“ALJ”)

decision to deny Petitoners’ request for special fund relief

under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”)§ 8(f) , 33 U.S.C. §§ 908(f), 944.        The BRB’s order



     *
       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that this opinion should not be published and is not precedent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.
contains no reversible error.   The Board correctly applied the

law, and it properly concluded that the ALJ’s factual findings

were supported by substantial evidence on the record as a whole.

We therefore AFFIRM the Board’s order.


                I. FACTUAL AND PROCEDURAL HISTORY

     Christopher Heavin (“Heavin”) began working for subsidiaries

of Gulf Oil1 on the day of his graduation from college in 1976.

On October 13, 1986, while working as a facility operator, Heavin

fell approximately forty feet from an offshore drilling platform.

He suffered a bruised heart, punctured lungs and diaphragm, an

injured liver, a laceration to his left kidney, and fractures to

his ribs, back, hip, and right femur.

     In February 1982, prior to his accident, Heavin was treated

for back pain at Lafayette General Hospital.   Heavin also

suffered from pre-existing kidney problems.    In March 1983, Dr.

Charles Williams removed Heavin’s right kidney due to a

congenital deformity.

     Heavin filed a claim for benefits arising from the injuries

that he sustained from the October 13, 1986, accident against

employer Chevron and Crawford, Chevron’s insurance carrier, under

the LHWCA, 33 U.S.C. § 901 et seq., as extended by the Outer

Continental Shelf Lands Act, 43 U.S.C. § 1333 et seq.     The ALJ

issued a Decision and Order Granting Permanent Total Disability

     1
      Gulf Oil later merged with Chevron.

                                 2
Benefits on December 11, 2003.    Of relevance to this appeal, the

ALJ denied Chevron and Crawford’s petition for section 8(f)

relief because the ALJ found that Chevron and Crawford failed to

prove that Heavin’s permanent total disability was not due solely

to the injuries he sustained from the October 13, 1986, accident.

The ALJ then issued a Decision and Order Denying Request for

Modification dated May 7, 2004.

     On May 20, 2004, Petitioners filed a timely notice of appeal

with the BRB.   On April 26, 2005, the Board issued its Decision

and Order, which, among other things, affirmed the ALJ’s decision

to deny Petitioners’ request for section 8(f) relief.

     Following the Board’s decision, Petitioners filed a petition

for review with the Ninth Circuit Court of Appeals on June 22,

2005.   The Ninth Circuit transferred the case to this court under

28 U.S.C. § 1631 because Heavin sustained his injuries while

working in the Gulf of Mexico.

     The ALJ’s Decision and Order Granting Permanent Total

Disability Benefits resolved several issues related to Heavin’s

workers’ compensation claim; however, the sole issue raised in

this appeal is whether Petitioners have proved that they qualify

for section 8(f)’s super fund relief.

                      II. STANDARD OF REVIEW

     When considering an appeal of an ALJ’s order, the BRB lacks

statutory authority to “to engage in a de novo review of the



                                  3
evidence or to substitute its views for those of the ALJ.”       Ceres

Marine Terminal v. Dir., 118 F.3d 387, 389 (5th Cir. 1997); see

33 U.S.C. § 921(b)(3).    The BRB must accept the ALJ’s findings

unless they “are not supported by substantial evidence in the

record considered as a whole or unless they are irrational.”

Ceres, 118 F.3d at 389.     Therefore, when reviewing a decision

from the BRB, this court’s “only function is to correct errors of

law and to determine if the BRB adhered to its proper scope of

review--i.e., has the Board deferred to the ALJ’s fact-finding or

has it undertaken de novo review and substituted its views for

the ALJ’s.”    Id. (quoting Avondale Shipyards, Inc. v. Vinson, 623

F.2d 1117, 1119 n.1 (5th Cir. 1980)).    When conducting a review

of the Board’s order, this court must “independently examine the

record to determine whether the ALJ’s findings are supported by

substantial evidence.”    Id.   We determine whether the ALJ’s

findings were supported by substantial evidence because the LHWCA

“has the effect of shifting deference away from the BRB and to

the ALJ.”   Id. at n.1.

     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.”     Dir. v. Ingalls

Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997).    In other

words, substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.”    Louis Dreyfus Corp. v. Dir., 125 F.3d 884, 886 (5th

                                   4
Cir. 1997).

                          III. DISCUSSION

     Petitioners contend that the Board and the ALJ’s finding

that Petitioners failed to satisfy section 8(f)’s requirements is

not supported by substantial evidence.   Specifically, Petitioners

point to evidence which they argue clearly demonstrates that

Heavin’s pre-existing back and kidney problems contributed to his

current permanent total disability.   Petitioners also argue that

the ALJ erred by focusing on the fact that their experts

addressed the incorrect standard for satisfying section 8(f).

Petitioners maintain that the ALJ should have delved into the

record to determine whether Petitioners produced enough evidence

to prove that they met section 8(f)’s requirements.

     Traditional workers’ compensation regimes follow the

“aggravation rule,” which makes an employer liable for an

employee’s entire disability even though the disability resulted

from a current employment injury and a pre-existing impairment.

Ceres, 118 F.3d at 389.   However, section 8(f) limits the

employer’s liability for a work-related permanent disability if

the employer can show that the employee had a pre-existing

permanent partial disability that contributed to the current

employment-related disability.   Id.; see 33 U.S.C. § 908(f).

After 104 weeks, section 8(f) shifts liability from the employer

to a special fund financed through contributions from employers



                                 5
in the industry.     Ingalls, 125 F.3d at 306 n.4; see 33 U.S.C.

§§ 908(f)(1), 944.

     The elements that an employer must establish to take

advantage of section 8(f)’s super fund provision depend on

whether the employee suffered a permanent partial disability or a

permanent total disability.     Two R Drilling Co. v. Dir., 894 F.2d

748, 750 (5th Cir. 1990).    In this case, the ALJ determined that

Heavin suffered a permanent total disability2 as a result of his

work-related injuries from the October 13, 1986, accident.      Thus,

Petitioners must establish that Heavin had: “(1) an existing

permanent partial disability before the employment injury; (2)

that the permanent partial disability was manifest to the

employer; and (3) that the current disability is not due solely

to the employment injury.”     Id. (citations omitted).   The

employer bears the burden of proving these elements.      Id.; Louis

Dreyfus, 125 F.3d at 887.

     The ALJ determined that Petitioners had satisfied the first

two of section 8(f)’s three requirements.    Therefore, the only

disputed issue on appeal is whether Petitioners proved that

Heavin’s current disability is not due solely to the employment


     2
      Under the LHWCA, a permanent total disability means that
the claimant has suffered injuries which prevent him from
reentering the labor force. See Ceres, 188 F.3d at 390-91; see
also 33 U.S.C. § 902(10) (stating that “disability means
incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment”).

                                   6
injury.3   Petitioners contend that they met the contribution

requirement because Heavin’s October 13, 1986, accident would not

have rendered him permanently totally disabled absent his pre-

existing back and kidney disabilities.   Petitioners also argue

that this court should grant them section 8(f) relief as a matter

of public policy to avoid discouraging employers from hiring

employees with pre-existing permanent partial disabilities.

A.   The Contribution Requirement

     Petitioners maintain that the Board and the ALJ erred by

finding that it did not meet the contribution requirement.      To

support its claim, Petitioners cite to a medical report by Dr.

James London in which he opined that Heavin’s injuries from the

October 13, 1986, accident combined with his pre-existing back

impairment to produce a greater total impairment than would have

resulted from the work injury alone.   Petitioners also rely on

Dr. London’s deposition testimony in which he stated that

Heavin’s current work restrictions arose from both the October

13, 1986, injuries and his pre-existing back impairment.

     In addition to the pre-existing back condition, Petitioners

maintain that Heavin’s pre-existing kidney disability contributed

to his present disability.   A medical report authored by Dr.

London dated August 25, 1998, stated that Heavin’s pre-existing

congenital kidney condition made his injuries from the October

     3
      This element is also known as the contribution requirement.
See Ceres, 118 F.3d at 389.

                                 7
13, 1986, accident materially and substantially greater.

Petitioners also rely on a medical report by Dr. Nachman

Brautbar, which opines that the removal of Heavin’s right kidney

in 1983 was a contributing factor to his current impairment

because being hired with one kidney increases the risk for

developing renal failure and hemodialysis.    Finally, Petitioners

cite a medical report by Dr. Peter Grodon in which he noted that

Heavin’s kidney condition left him vulnerable to nephrotoxic

drugs and profound dehydration.    Petitioners use Dr. Grodon’s

report to argue that the pre-existing kidney condition

contributed to Heavin’s current permanent total disability.

Petitioners maintain that if Heavin still had a right kidney, he

would be able to reenter the labor market because he would have

higher kidney function, which would allow him to take medications

that would enable him to control his back pain and incontinence.

     Contrary to Petitioners’ arguments, the ALJ found that

Heavin’s pre-existing back condition did not contribute to his

current permanent total disability.    The ALJ cited a medical

report from Dr. Blanda, which noted that Heavin’s back pain

resulted from kidney problems.    A report from Dr. Raymond

Linovitz also suggested that Heavin’s back problem really arose

from his kidney problems or possibly a sciatic nerve problem.

The ALJ credited Dr. Linovitz’s opinion that a 1982 medical

record referring to back pain with no follow-up treatment was

insufficient to show that Heavin suffered from a pre-existing

                                  8
back condition.    The opinions of Drs. Blanda and Linovitz provide

substantial evidence--such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion--to sustain the

ALJ’s determination that Heavin’s pre-existing back condition, if

he even had one, did not contribute to his present disability.

See Louis Dreyfus, 125 F.3d at 886.

     There was also substantial evidence in the record for the

ALJ to conclude that Heavin’s pre-existing kidney problems did

not contribute to his present disability.    Dr. Grodon testified

that “You have a perfect example of people donating a kidney for

transplant, and they have one kidney left, and they live normal

lives...[Heavin] does not have a disability because of his

kidneys.   Even now.”    Heavin v. Chevron USA, Inc., 2002-LHC-2122,

07-105398, at 27 (Dep’t of Labor Dec. 11, 2003).    Put

differently, only having one kidney does not limit someone from

the labor market.    Dr. Grodon also stated that “considering the

substantial trauma to his body, in my opinion, both kidneys would

have been damaged, in all medical probability to an identical

degree.”   Id.    Therefore, even assuming Heavin’s kidney problems

did limit him for the labor force, the October 13, 1986, accident

was so traumatic that it alone would have been sufficient to

render Heavin permanently totally disabled.    The ALJ concluded

from this testimony that Heavin’s pre-existing kidney problem

played no role in the severity and extent of his permanent

condition.   In other words, Heavin’s pre-existing kidney problems

                                   9
did not contribute to his present inability to enter the labor

force.

     The record yielded substantial evidence to support the ALJ’s

finding that neither Heavin’s pre-existing back condition, if he

had one, nor his pre-existing kidney problems contributed to his

present inability to reenter the labor force.    The ALJ credited a

medical report from Dr. Grodon dated June 18, 2001, which stated

that Heavin’s orthopedic limitations, not his liver or kidney

disorders, limited him from the labor market.    Thus, Petitioners’

own expert, Dr. Grodon, provided the substantial evidence for the

ALJ to determine that Heavin’s pre-existing kidney condition did

not contribute to his current permanent total disability.

     Having reviewed both Petitioners’ arguments and the ALJ’s

decision and order, Petitioners establish--at best--that a fact

finder could draw multiple inferences from the evidence in the

record.    The well-established law in this circuit is that whether

“the facts may permit diverse inferences is immaterial. The

administrative law judge alone is charged with the duty of

selecting the inference which seems most reasonable and his

choice, if supported by the evidence, may not be disturbed.”

Presley v. Tinsley Maint. Serv., 529 F.2d 433, 436 (5th Cir.

1976); Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir.

1995).    It is the ALJ who “determines the weight to be accorded

to evidence and makes credibility determinations.”    Mendoza, 46

F.3d at 500.    Further, “where the testimony of medical experts is

                                 10
at issue, the ALJ is entitled to accept any part of an expert's

testimony or reject it completely.”      Id. at 501; Mijangos v.

Avondale Shipyards, Inc., 948 F.2d 941, 945 (5th Cir. 1991).        In

this case, the ALJ’s selection of inferences was reasonable and

supported by the evidence.    Therefore, this court cannot disturb

the ALJ’s factual findings.

     Petitioners argue that the ALJ erred by focusing on the fact

that their experts’ opinions did not address the correct legal

standard for permanent total disability cases.     Petitioners’

experts, Drs. London and Grodon, stated that Heavin’s current

injury is materially and substantially greater because of his

pre-existing injuries.   The ALJ correctly noted that those

opinions would be relevant to a permanent partial disability

case, but not to Heavin’s permanent total disability case.         See

Two R Drilling, 894 F.2d at 750.      Petitioners contend that

instead of focusing on the fact that their experts addressed the

incorrect standard, the ALJ should have delved into the record to

determine whether Petitioners had proved the contribution

requirement for a permanent total disability.

     Petitioners’ argument fails for two reasons.     First, in

permanent total disability cases, an employer cannot establish

the contribution requirement by simply showing that the

employee’s current disability is greater than it would have been

absent the employee’s pre-existing impairments.      Ceres, 118 F.3d

at 390; Ingalls, 125 F.3d at 306-07.     Instead, the employer has

                                 11
to prove that the employee would not be totally disabled--i.e.,

unable to reenter the labor force--without his prior injury.

Ingalls, 125 F.3d at 307.   Second, the ALJ’s decision

demonstrates that the ALJ looked beyond the fact that

Petitioners’ experts addressed the incorrect standard and that

the ALJ delved into the record evidence when making factual

determinations.   For example, the ALJ discredited Dr. Grodon’s

testimony that Heavin’s current disability is substantially

greater than it would have been from the October 13, 1986,

accident alone not only because this testimony was irrelevant to

the correct standard, but also because it was conclusory and

contradicted some of his other statements.   Heavin, 2002-LHC-

2122, 07-105398 at 27.

B.   Public Policy

     Petitioners argue that this court should grant them section

8(f) relief as a matter of public policy because Congress enacted

section 8(f) to reduce discrimination against handicapped

workers.   In order to further congressional intent, Petitioners

contend that this court should construe section 8(f) liberally in

favor of employers.

     Almost all authorities agree that Congress enacted section

8(f) to diminish an employer’s incentive to discriminate against

partially disabled workers.   See Lawson v. Suwanee Fruit & S.S.

Co., 336 U.S. 198, 201 (1949); Ceres, 118 F.3d at 389.   Section

8(f) strikes a balance between encouraging employers to hire

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partially disabled workers and avoiding a moral hazard problem in

which employers would seek to shift liability to the special fund

in cases where there were only insignificant pre-existing

injuries.   Ingalls, 125 F.3d at 306.   Therefore, the elements

that an employer must prove to benefit from section 8(f) reflect

Congress’s judgment about the best way to achieve the public

policy goal of reducing discrimination against disabled workers.

Broadly referring to Congress’s desire to reduce discrimination

against the partially disabled is no substitute for actually

meeting section 8(f)’s demands.    Public policy does not entitle

Petitioners to section 8(f) relief because Petitioners failed to

meet the contribution requirement.

                          IV. CONCLUSION

     For the reasons stated above, we AFFIRM the decision of the

Benefits Review Board.

     AFFIRMED.




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