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

                                                                            FILED
                                                                          August 15, 2008
                                     No. 07-60818
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

LAKE CHARLES FOOD PRODUCTS, L.L.C.; AMERICAN LONGSHORE
MUTUAL ASSOCIATION, LTD.,

                                                  Petitioners,

v.

LARRY BROUSSARD; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR


                                                  Respondents.


                          On Petition for Review of an Order
                            of the Benefits Review Board
                                  BRB No. 07-0153


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioners Lake Charles Food Products, L.L.C. (“LCFP”) and American
Longshore Mutual Association, Ltd. (“ALMA”) petition this court for review of
the Benefits Review Board’s decision affirming an administrative law judge’s
award of benefits to Respondent Larry Broussard. For the reasons set forth
below, we deny the petition for review.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-60818

                          I. Facts and Proceedings
      Larry Broussard injured his right hip, leg, elbow, and lower back on
October 30, 2003, when he was struck by a forklift while working as a warehouse
foreman. LCFP paid Broussard temporary total disability benefits from October
31, 2003 to May 26, 2005, at which time the company stopped making voluntary
payments on the ground that a May 29, 2004 automobile accident involving
Broussard constituted a supervening cause of his disability. Broussard filed for
benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.
§§ 901–950 (“LHWCA”). The administrative law judge (“ALJ”) found that the
May 2004 accident was not a supervening cause of Broussard’s disability and
awarded him benefits, including temporary total disability compensation and
payment for all future reasonable medical care arising from his work-related
injury.
      The Benefits Review Board (“BRB”) affirmed the award. In their petition
for review of the BRB’s decision, LCFP and ALMA argue that the May 2004
accident was a supervening cause of Broussard’s disability, that the BRB erred
in affirming the ALJ’s “erroneous interpretation and application” of the legal
standard governing what constitutes a supervening cause relieving an employer
of liability under the LHWCA, and that the BRB erred in finding that the ALJ’s
award was supported by substantial evidence. LCFP and ALMA also argue that
under any standard, the increase in back pain Broussard experienced after the
May 2004 automobile accident precluded the ALJ’s finding that the accident was
not a supervening cause of his disability.
                           II. Standard of Review
      We review the decision of the BRB de novo. Sketoe v. Exxon Co., USA, 188
F.3d 596, 597 (5th Cir. 1999). “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

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with the law.” Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir.
2003) (citation and internal quotation marks omitted). We may not substitute
our judgment for that of the ALJ, nor may we reweigh or reappraise the
evidence; instead, we inquire whether there was substantial evidence supporting
the ALJ’s factual findings. Louisiana Ins. Guar. Ass’n v. Bunol, 211 F.3d 294,
296 (5th Cir. 2000). “Substantial evidence is evidence that a ‘reasonable mind
might accept as adequate to support a conclusion.’” Hall v. Consol. Employment
Sys., Inc., 139 F.3d 1025, 1029 (5th Cir. 1998) (quoting Pierce v. Underwood, 487
U.S. 552, 565 (1988)).     “The requirement of substantial evidence is less
demanding than that of preponderance of the evidence, and the ALJ’s decision
need not constitute the sole inference that can be drawn from the facts.” Id.
(citation and internal quotation marks omitted).
                               III. Discussion
       “Generally, the idea of proximate cause, as applied in tort law, does not
apply to the LHWCA.” Shell Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 316
(5th Cir. 1997). “With only a few exceptions, the court’s function is at an end
once causation in fact has been established.” Id. One such exception arises
“when the claimed injury has a supervening, independent cause.” Id. In this
case, LCFP and ALMA assert that Broussard’s May 2004 automobile accident
was a supervening cause of his disability that relieved them from further
liability.
       As both the ALJ and the BRB recognized, and as we have previously
observed, “some tension” exists between the standards of supervening causation
articulated in Voris v. Texas Employers Ins. Ass’n, 190 F.2d 929 (5th Cir. 1951),
and in Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, modified on other
grounds and reh’g denied, 657 F.2d 665 (5th Cir. 1981).          See Bludworth
Shipyard, Inc. v. Lira, 700 F.2d 1046, 1050–51 (5th Cir. 1983) (recognizing “some
tension” between the two cases). In Voris, a panel of this court held that a


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supervening cause is an “influence[] originating entirely outside the
employment” that “overpowered and nullified” the causal effect of the
employment on the claimant’s injury. Id. at 934. In Bosarge, a subsequent
panel stated, without discussing Voris, that “[a] subsequent injury is
compensable if it is the direct and natural result of a compensable primary
injury, as long as the subsequent progression of the condition is not shown to
have been worsened by an independent cause.” Bosarge, 637 F.2d at 1000.
      Because “[t]he rule in this Circuit is that only an en banc court can
overrule or change what a previous panel has held,” Shell Offshore, 122 F.3d at
316, Voris controls to the extent it conflicts with Bosarge on the facts of this case.
However, as in Shell Offshore, “[w]e need not decide which standard is the
operative one and we affirm [Broussard’s] award because the facts in this record
do not meet either standard for supervening cause.” Id. During the hearing
before the ALJ, Broussard submitted the deposition testimony of Dr. Michel
Heard, a board-certified orthopedic surgeon, that magnetic resonance imaging
(“MRI”) scans taken before and after the May 2004 accident showed no objective
worsening of Broussard’s back injury.         Likewise, Broussard submitted an
October 21, 2005 report in which Dr. Mark McDonnell opined that Broussard’s
“low back” was not “substantially changed by the automobile accident.”
Broussard also testified that although a lumbar epidural steroid injection he
received about a month before the automobile accident temporarily improved his
condition, his back pain returned well before the accident occurred. The ALJ
found Broussard to be a credible witness but did not credit the testimony of Dr.
Walter Foster, LCFP’s and ALMA’s only witness at the hearing, because his
opinion that Broussard’s continuing disability was attributable to the automobile
accident was premised on a fundamental misunderstanding of the relevant
facts—specifically, Dr. Foster erroneously believed that Dr. Heard had released
Broussard for a functional capacity evaluation and a work hardening program
before the accident.

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      In light of this testimony, the BRB did not err in concluding that the
record contains substantial evidence supporting the ALJ’s conclusion that the
May 2004 accident neither “overpowered and nullified” Broussard’s workplace
injury nor worsened his disability in a legally significant way. The fact that
Broussard experienced additional back pain following the automobile accident
does not change this result—as the BRB observed, substantial evidence supports
the ALJ’s conclusion that Broussard was “totally disabled before the [automobile
accident] and in need of conservative treatment, and the same disability and
treatment continued after the [accident].”
                               IV. Conclusion
      We DENY the petition for review of the Benefits Review Board’s decision.




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