     Case: 14-60707      Document: 00513186141         Page: 1    Date Filed: 09/09/2015




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

                                                                                    FILED
                                      No. 14-60707                          September 9, 2015
                                               Lyle W. Cayce
PETRON INDUSTRIES, INCORPORATED; AMERICAN HOME      Clerk
ASSURANCE COMPANY,

                                                 Petitioners,
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; RYAN COURVILLE,

                                                 Respondents.


                       Petition for Review of an Order of the
                               Benefits Review Board
                                  BRB No. 14-0079


Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       Respondent Ryan Courville (“Courville”) filed a claim for benefits under
the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901, et
seq., against Petron Industries (“Petron”) and American Home Assurance
(collectively, “Petitioners”), alleging that he injured his thoracic spine while
lifting equipment aboard an inland barge in 2007. Relevant to this petition,
Courville sought Petron’s authorization of surgical intervention for his spine


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60707
injury, which Petron denied. Following a formal hearing, the Administrative
Law Judge (“ALJ”) ordered Petitioners to pay for the surgery, which had been
recommended by Courville’s treating physician. The Benefits Review Board
(“BRB”) affirmed the ALJ’s order, deciding that it was supported by substantial
evidence and in accordance with the law. For the following reasons, we deny
the petition for review.
                        I.     Facts & Procedural History
      In February 2007, Courville suffered a work-related thoracic-level spine
injury while lifting a briefcase containing satellite equipment aboard an inland
barge bound for a drilling rig.         On March 19, 2007, Courville saw Dr.
Patrick Juneau who reviewed an MRI of Courville’s thoracic spine and
recommended physical therapy but did not recommend surgical intervention
at that time. Seeking a second opinion, Courville began treatment with
orthopedic surgeon Dr. John Cobb who also reviewed the MRI and
recommended physical therapy and prescription medication. In June 2007,
Courville expressed to Dr. Cobb that the physical therapy was exacerbating
his pain, rather than alleviating it, so Dr. Cobb referred Courville to Dr. Steven
Staires, a pain management specialist. Dr. Staires performed epidural
injections, a rhizotomy, and physical therapy, none of which relieved
Courville’s pain so he was referred back to Dr. Cobb for further treatment. Dr.
Cobb continued to administer further rounds of alternative treatments, none
of which improved Courville’s condition. Consequently, in January 2009, Dr.
Cobb recommended surgery 1 and requested Petron’s authorization.
      Following Dr. Cobb’s recommendation of surgery, Petron sought a second
medical opinion from Dr. Wayne Lindemann, who saw Courville in February



      1  Specifically, Dr. Cobb recommended an “instrumented posterior [spinal] fusion”
ranging from levels T8 through T12 and also possibly levels T5 through T6.
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                                  No. 14-60707
2009. Dr. Lindemann reviewed the medical records from Dr. Staires’s office
and the MRI from 2007 and concluded that the alternative conservative
therapy undergone by Courville had proved unsuccessful and that it was “more
likely than not” that surgical intervention would be required. Upon receiving
Dr. Lindemann’s review, Petron sought yet another medical opinion from Dr.
Stanley Foster, who reviewed the same records approximately two months
later and concluded that Courville did not need surgical intervention and could
return to work on a medium duty job.
      Due to the conflicting recommendations regarding surgery, the Office of
Workers’   Compensation      Programs       assigned   an   independent    medical
examination of Courville with Dr. Paul Fenn on February 24, 2010. Dr. Fenn
obtained and MRI of Courville’s thoracic spine and diagnosed Courville with
thoracic disc degeneration, but did not recommend surgical intervention and
opined that Courville had reached maximum medical improvement (“MMI”).
      Subsequently, Dr. Cobb died and was replaced by Dr. John Sledge as
Courville’s treating orthopedic physician. Dr. Sledge saw Courville in April
2012 and ordered a second MRI of Courville’s thoracic spine, which was
administered the following month. After reviewing the MRI, Dr. Sledge
concluded that Courville had not improved after years of physical therapy,
medication, and activity modification but was nevertheless “not a surgical
candidate” becauseas he later testifiedPetron continued to refuse to
authorize payment “for the diagnostic test [required] to confirm” whether
surgery was necessary. With few other options, Dr. Sledge referred Courville
for further pain management. Dr. Sledge saw Courville again in February
2013, at which time Courville expressed an interest in undergoing “definitive
treatment,” i.e., surgical intervention. Dr. Sledge testified that he concurred in
the assessments of Drs. Cobb and Lindemann regarding surgical intervention
and sought to gather records demonstrating the ineffectiveness of Courville’s
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                                      No. 14-60707
physical therapy, pain management, and other alternative treatments to
“submit for [authorization of] surgical intervention.”
       A formal hearing was held before the ALJ in July 2013. In his Decision
and Order, the ALJ first determined that Courville had not yet reached MMI.
He then found that Courville had established a prima facie claim of total
disability by demonstrating that he was unable to return to the type of work
he was performing at the time of the injury. However, he found that Petron
had successfully rebutted Courville’s prima facie claim by establishing the
existence    of   suitable     alternative       employmentthat        was    reasonably
availablebeginning on January 4, 2011. Moreover, he noted that Courville
had failed to exercise due diligence in seeking to obtain that employment.
       Additionally, while the ALJ acknowledged the conflicting medical
opinions of the physicians who had evaluated Courville, he also noted that, in
certain circumstances, the opinion of a treating physician may be entitled to
greater weight than the opinion of a non-treating physician. See Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 830 n.3 (2003). Thus, he found
that Courville had established a prima facie entitlement to the medical
treatment recommended by his treating physician Dr. Sledgeincluding the
surgery. See Turner v. Chesapeake & Potomac Tel. Co., 16 BRBS 255, 257−58
(1984) (holding that a claimant establishes a prima facie case for compensable
medical treatment where a qualified physician indicates treatment was
necessary for a work-related condition). Finally, he concluded that, based on
the medical evidence, the surgery and other further medical treatment
recommended by Dr. Sledge, 2 were reasonable and necessary.




       2 Dr. Sledge also recommended an epidural steroid injection to assist him with
identifying and isolating the source of the pain, which would ultimately help limit the scope
of the surgery.
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                                  No. 14-60707
      In sum, the ALJ awarded Courville: (1) temporary total disability
benefits from February 2007 through January 3, 2011; (2) ongoing temporary
partial disability benefits beginning January 4, 2011; (3) all reasonable and
necessary medical expenses arising from the work-related injury including the
epidural steroid injection and surgery recommended by Dr. Sledge; and (4)
attorney’s fees.
      The BRB affirmed the ALJ’s order, concluding that it was supported by
substantial evidence in the record and in accordance with the law.            This
petition for review followed.
                            II.   Standard of Review
       “Our review of the BRB’s decision is limited in scope to considering
errors of law, and making certain that the BRB adhered to its statutory
standard of review of factual determinations, that is, whether the ALJ’s
findings of fact are supported by substantial evidence and are consistent with
the law.” Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir. 2009)
(alterations, internal quotation marks, and citation omitted). The BRB 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) (citation omitted). “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.” Coastal Prod. Servs. Inc., 555 F.3d at 430 (internal quotation marks
omitted). As the factfinder, the ALJ “is exclusively entitled to assess both the
weight of the evidence and the credibility of witnesses.” Ceres Gulf, Inc. v. Dir.,
Office of Worker’s Comp. Programs, 683 F.3d 225, 228 (5th Cir. 2012) (citations
omitted). “The BRB may not substitute its judgment for that of the ALJ or
engage in a de novo review of the evidence.” Gulf Best Elec., 396 F.3d at 603


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                                     No. 14-60707
(citation omitted). We review the BRB’s legal conclusions de novo. Coastal
Prod. Servs. Inc., 555 F.3d at 430.
                                      III.   Analysis
       Under 33 U.S.C. § 907, “[o]nce an employee establishes that his injury
was work-related, he is entitled to all reasonable and necessary medical
expenses related to that injury.” Amerada Hess Corp. v. Dir., Office of Worker’s
Comp. Programs, 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C. § 907). It
is undisputed that Courville’s spine injury was work-related. The dispute in
this appeal involves the ALJ’s conclusion that the recommended surgery is
“reasonable and necessary” treatment for Courville’s injury. “[A] claimant
establishes a prima facie case for compensable medical treatment where a
qualified physician indicates that such treatment is necessary for a work-
related condition.” Id. at 762.
       Petitioners assert that the ALJ erred in weighing the evidence and
misstated the law with regard to his discretion to assess the weight of the
evidence. 3 Having reviewed the record, we hold that the BRB correctly found
that the ALJ’s factual findings were supported by substantial evidence and
that the ALJ did not misstate the law. Dr. Cobb, Courville’s first treating
physician, recommended surgical intervention involving spinal fusion. Dr.
Lindemanna physician hired by Petronagreed and concluded that
“Courville will more likely than not require surgical intervention” and referred
Courville to a spine specialist for further evaluation. Finally, Dr. Sledge,
Courville’s second treating physician, testified that he agreed with the
assessments of Drs. Cobb and Lindemann regarding surgical intervention.



      3  In their reply brief, Petitioners assert a third argument related to the ALJ’s
authority to direct open-ended future treatment. We decline to address this argument, as
“[w]e generally do not consider arguments made for the first time in a reply brief and deem
[such] arguments waived.” United States v. Myers, 772 F.3d 213, 218 (5th Cir. 2014).
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                                 No. 14-60707
Additionally, the physicians recommending surgery only did so after
attempting numerous alternative methods of treatment, none of which proved
successful.
      While it is true, as the ALJ acknowledged, that at least two other doctors
opined that surgical intervention was not necessary, this court has consistently
held that the ALJ, as the factfinder, “is exclusively entitled to assess both the
weight of the evidence and the credibility of witnesses.” Ceres Gulf, Inc., 683
F.3d at 228 (citations omitted). Moreover, the ALJ was within his discretion
to lend greater weight to the opinions of Courville’s treating physicianswho
are familiar with his injuries, treatment, and responsesthan the opinions of
his non-treating physicians. See Carry v. Heckler, 750 F.2d 479, 484 (5th Cir.
1985); see also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citations
omitted) (“[O]pinion of the treating physician who is familiar with the
claimant’s impairments, treatments and responses, should be accorded great
weight in determining disability.”).
      It has now been over eight years since Courville suffered a work-related
injury during his employment with Petron. Courville’s first treating
physician’s recommendation for surgery has been pending for over six years
now. As recently as 2013, Courville’s second treating physician agreed with
the recommendation of surgical intervention. To date, Courville has been
evaluated by at least seven different physicians and has undergone years of
alternative treatments to no avail. In light of these facts and considering the
record evidence as a whole, we see no error in the ALJ’s finding that surgical
intervention is both reasonable and necessary. See Amerada Hess Corp., 543
F.3d at 761 (citing 33 U.S.C. § 907).
      Accordingly, we hold that the BRB properly affirmed the ALJ’s Decision
and Order which was supported by substantial evidence in the record and


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                                 No. 14-60707
consistent with the law. See Coastal Prod. Servs. Inc., 555 F.3d at 430 (citation
omitted).
                               IV. Conclusion
      For the foregoing reasons, the petition for review of the decision and
order of the Benefits Review Board is DENIED.




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