          United States Court of Appeals
                     For the First Circuit


No. 18-1225

                        LUIS PEÑA-GARCIA,

                           Petitioner,

                               v.

   DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CALZADILLA CONSTRUCTION CORPORATION;
              IMS INSURANCE COMPANY OF PUERTO RICO,

                          Respondents.


   PETITION FOR REVIEW OF A FINAL ORDER OF THE BENEFITS REVIEW
             BOARD, UNITED STATES DEPARTMENT OF LABOR


                             Before

                      Howard, Chief Judge,
                Lynch and Lipez, Circuit Judges.


     Emilio F. Soler on brief for petitioner.
     Manuel Porro-Vizcarra and Manuel Porro-Vizcarra Law Offices
on brief for respondents Calzadilla Construction Corporation and
IMS Insurance Company of Puerto Rico.


                          March 1, 2019
           LYNCH, Circuit Judge.   This case raises the question of

what is a "successful prosecution" in a claim for benefits under

the Longshore and Harbor Workers' Compensation Act (LHWCA), so as

to warrant an award of attorney's fees to a claimant.       See 33

U.S.C. § 928.

           After suffering a disabling back injury in 1994 while

working for Calzadilla Construction Corporation (Calzadilla) in

Puerto Rico, Luis Peña-Garcia (Peña) sought coverage for spinal

surgery.   Calzadilla's insurer, IMS Insurance Company of Puerto

Rico (IMS), said it would pay for such surgery in Puerto Rico,

where Peña's surgeon was willing and able to perform it.       Peña

rejected that and said the surgery must be at Beth Israel Spine

Institute in New York.      Peña then filed a claim for medical

compensation for surgery in New York against Calzadilla and IMS

under the LHWCA.   33 U.S.C. § 901 et seq.

           An LHWCA administrative law judge (ALJ) determined that

Calzadilla and IMS had never refused to pay for the surgery and

rejected Peña's claim that it was necessary to perform his surgery

in New York.    Consequently, the ALJ later held that Peña was not

entitled to attorney's fees and costs.       The U.S. Department of

Labor Benefits Review Board (the Board) affirmed the denial of

attorney's fees and costs.     Finding no error, we deny Peña's

petition for review.




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                                   I.

A.   Facts

             The pertinent facts are not disputed.       At all relevant

times, Peña lived and worked in Puerto Rico.           Peña's back injury

at   Calzadilla    left   him   totally   and    permanently    disabled.

Calzadilla and IMS accepted liability for Peña's injury and began

paying him medical benefits even before he made the claim at issue

here.

             On March 15, 2010, Peña saw an orthopedic surgeon, Dr.

Luis Pio Sánchez-Caso (Dr. Sánchez), who recommended that Peña

undergo      a   laminectomy    decompression,     a     "complex   spine

reconstruction" surgery.        Dr. Sánchez was willing and able to

perform the surgery at San Pablo Hospital in Puerto Rico.             Dr.

Sánchez, though not board-certified, had post-graduate training in

the area of orthopedic surgery, had performed spinal surgeries

since 1998, and had previously performed the surgery that Peña

needed in Puerto Rico.     Peña could also obtain the rehabilitation

he needed from two HealthSouth locations in Puerto Rico.              The

medical director of HealthSouth, Dr. Edward Ramos, was board-

certified in physical medicine and in rehabilitation with a spinal

cord injury medicine subspecialty.

             Peña wanted instead to have the spinal surgery at Beth

Israel Spine Institute in New York because it is "close to [his]

family" and has "a record of being the best institution."           In a


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letter to Peña's attorney, dated April 13, 2010, IMS rejected that

request and stated:

          Please be advised that we can not cover your
          client's surgery outside of Puerto Rico. He
          has been examined and evaluated by a competent
          surgeon,     Dr.     S[á]nchez[-]Caso,     who
          recommended the surgery in Puerto Rico, at the
          San Pablo Hospital.

          Additionally, our decision is based on the
          fact that Mr. Peña and his immediate family
          continue to reside in Puerto Rico, and, Mr.
          Peña's recovery time will be approximately
          three months to one year and he will need
          considerable family assistance during his
          recovery. Under these circumstances, we must
          respectfully deny Mr. Peña's request to
          undergo his surgery outside Puerto Rico.

B.   Procedural History

          On October 13, 2010, Peña submitted a claim to the

Director of the Office of Workers' Compensation Programs (the

Director) against Calzadilla and IMS under the LHWCA, on the ground

that IMS's refusal to pay for spinal surgery in New York violated

the LHWCA's requirement that "[t]he employer shall furnish such

medical, surgical, and other attendance or treatment . . . for

such period as the nature of the injury or the process of recovery

may require."   33 U.S.C. § 907(a).    The Director referred the case

to the Office of Administrative Law Judges.        After the parties

tried unsuccessfully to settle the matter, an ALJ held a hearing

on September 17, 2015.    At the hearing, IMS did not dispute that




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Peña was entitled to medical benefits from Calzadilla due to his

back injury, including for surgery in Puerto Rico.

          On March 22, 2016, the ALJ ordered Calzadilla and IMS to

"furnish to [Peña], such reasonable, appropriate, and necessary

medical care and treatment as his back and neck injury which

occurred on May 16, 1994, may require, including spinal surgery

and post-surgery care such as rehabilitation."   The ALJ's decision

further stated that Calzadilla "will be liable only for the medical

costs and incidental expenses associated with obtaining such care

and treatment in Puerto Rico, regardless of where [Peña] chooses

to obtain such care and treatment."   Peña could, of course, have

the surgery done in New York, but he would then be responsible for

whatever additional expenses he incurred.

          Peña's attorney then submitted a request to the ALJ for

$60,515 in attorney's fees and $4,000 in fees for Peña's treating

physician who had testified at the hearing. His argument was based

on the assertion that Peña had successfully prosecuted the earlier

claim before the ALJ, on the theory that his claim had been a

victory because he had obtained what he called his right to choose

to have the surgery in New York.

          On August 3, 2016, the ALJ issued a supplemental decision

and order denying the request for attorney's fees and costs.   The

ALJ stated that Peña had not obtained a "successful prosecution,"

which is required to recover attorney's fees and costs under the


                              - 5 -
LHWCA, because IMS "has been paying compensation to [Peña] prior

to the hearing and has not refused to pay for [Peña's] surgery in

Puerto Rico."     The ALJ also noted that "[t]here is no evidence

that [IMS] at any point . . . refused to cover any portion of

[Peña's] surgery if it were performed outside Puerto Rico."1                  The

ALJ added, "[h]ad [IMS] asserted that it would refuse to pay for

any portion of [Peña's] surgery and rehabilitation if it were

performed in New York, [Peña] would have been successful in

litigating his case."     The ALJ determined that Peña "did not gain

any additional benefit above [and] beyond what he would have

received had he not initiated this claim."

           On    September   2,   2016,    Peña    filed    a    petition     for

reconsideration on the issue of attorney's fees and costs.                    The

ALJ denied the petition on October 5, 2016.                Peña appealed the

denial of attorney's fees and costs to the Board, which affirmed

the ALJ's decision on September 13, 2017.           The Board stated that

Peña's self-proposed "'right to choose' to have the surgery in New

York is not a 'victory' under the [LHWCA], because [the] employer's

liability is limited to the cost of surgery and rehabilitation in

Puerto   Rico,   which   [the]    employer   had   agreed       to   before   the

proceedings were initiated."       The Board determined that Peña "did

not obtain a tangible benefit that [the] employer had denied him."




     1     Peña did not challenge this finding before the Board.


                                   - 6 -
On   January    16,   2018,    the    Board   denied   Peña's   motion    for

reconsideration.      Peña then petitioned this court for review of

the Board's decision.

                                       II.

             "This court reviews the [Board's] decision on legal

issues de novo and determines whether the Board adhered to the

'substantial evidence' standard when it reviewed the ALJ's factual

findings."     Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st Cir.

1999).    "In reviewing for substantial evidence, we assess the

record as a whole, and we will affirm so long as we are satisfied

that the record contains 'such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"                 Bath

Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir.

2003) (quoting Sprague v. Dir., Office of Workers' Comp. Programs,

U.S. Dept. of Labor, 688 F.2d 862, 865 (1st Cir. 1982)).

             The LHWCA grants attorney's fees in two situations.           33

U.S.C. § 928(a)-(b).          Under subsection (a) of the LHWCA's fee

provision, attorney's fees "shall be awarded" to a claimant when

the employer "declines to pay any compensation . . . on the ground

that there is no liability" and the claimant "utilize[s] the

services of an attorney at law in the successful prosecution of

his claim."    Id. § 928(a).      Under subsection (b), if the employer

accepts   liability     but     the   parties   dispute   the   amount     of

"compensation" and the claimant "utilizes the services of an


                                      - 7 -
attorney," the claimant "shall be awarded" attorney's fees if

"compensation thereafter awarded is greater than the amount paid

or tendered by the employer or carrier."2    Id. § 928(b).

           The Board's decision is both correct and supported by

substantial evidence.   Peña makes an argument under subsection (a)

that he obtained a "successful prosecution" because Calzadilla and

IMS "raised a complete challenge to [his] request for treatment in

New York."   The argument is wrong.    Subsection (a) is triggered

only when the employer or insurance carrier denies liability and

refuses to pay the claimant "any compensation."   Id. § 928(a).   In

fact, IMS was paying Peña some compensation in the form of medical

benefits before this claim was initiated, calling into question

whether subsection (a) applies at all. But we bypass that question

to address the surgery compensation issue.   The employer's actions

here do not amount to a refusal to pay "any compensation."        See

id.   There is no evidence that Calzadilla and IMS refused to cover

the cost of the surgery in Puerto Rico.

           Peña's argument under subsection (b) also fails.        He

mischaracterizes the ALJ's decision both as confirming his "right




      2   As to costs, the LHWCA provides that "[i]n cases where
an attorney's fee is awarded against an employer or carrier there
may be further assessed against such employer or carrier as costs,
fees and mileage for necessary witnesses attending the hearing at
the instance of claimant." 33 U.S.C. § 928(d).




                               - 8 -
to choose surgery/rehabilitation treatment in New York" and as an

award of "additional compensation."             Subsection (b) requires that

Peña show that the "additional compensation" awarded after he filed

his claim was "greater than the amount paid or tendered by the

employer   or    carrier."        Id.    §    928(b).      The   LHWCA     defines

"compensation" as "money allowance payable to an employee or to

his dependents as provided for in this chapter."                 Id. § 902(12);

see Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor

v. Baca, 927 F.2d 1122, 1124 (10th Cir. 1991) (noting that, under

the LHWCA, "attorney[']s fees may only be awarded when the claimant

has   gained    some   economic    benefit.").          Peña   was   not   awarded

compensation greater than that tendered by his employer because

there is no evidence that IMS refused to pay for surgery at the

Puerto Rico cost, regardless of where Peña chose to have the

surgery.

           Peña's argument is also doomed by this court's decision

in Barker v. U.S. Dep't of Labor, 138 F.3d 431 (1st Cir. 1998).

In Barker, the petitioner argued that he was entitled to attorney's

fees under subsection (b) because, "though he had not secured any

additional benefits," he "was the prevailing party in the sense

that the administrative proceedings confirmed his entitlement to

LHWCA benefits."       Id. at 438.           Barker held that this argument

"distorts the contours of subsection (b)" because under its plain

meaning, entitlement to attorney's fees "turns on whether the


                                        - 9 -
claimant succeeds in securing additional compensation."3       Id.

(emphasis added).   Peña did not secure any additional compensation

by filing his claim.   The Board did not err in denying the request

for attorney's fees and costs.

          The petition for review, which is without merit, is

denied.




     3    In Barker, we left open the question of "whether medical
benefits are (or are not) subsumed within the phrase 'additional
compensation'" in the LHWCA's attorney's fee provision. Barker,
138 F.3d at 439. As in Barker, we need not address that issue,
because "[t]he record is bereft of any credible evidence indicating
that . . . the petition brought about a payment that would not
otherwise have occurred." Id.


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