                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                     November 1, 2004
                          FOR THE FIFTH CIRCUIT
                          _____________________                    Charles R. Fulbruge III
                                                                           Clerk
                               No. 03-60749
                          _____________________

GULF BEST ELECTRIC, INC.;
LOUISIANA WORKERS’ COMPENSATION CORP.,

                                          Petitioners-Cross-Respondents,

                                  versus

MICHAEL M. METHE,

                                            Respondent-Cross-Petitioner,

                                  versus

DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U. S. DEPARTMENT OF LABOR,

                                            Respondent-Cross-Respondent.

_________________________________________________________________

            Petition for Review from an Administrative
               Decision of the Benefits Review Board
_________________________________________________________________

Before JOLLY, WIENER and PICKERING, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     This   appeal    arises   from   a   claim   for   benefits    under    the

Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et

seq. (“LHWCA”).      Both the claimant, Michael Methe, and the cross-

respondents, Gulf Best Electric, Inc. and the Louisiana Workers’

Compensation Corporation (“LWCC”), filed petitions asking this

court to review various portions of a decision by the Benefits

Review Board (“BRB”) of the Department of Labor.              That decision
affirmed in part and modified in part an order by an administrative

law   judge   (“ALJ”)       granting   Methe          permanent   total   disability

compensation.    Because this court lacks jurisdiction to review the

issues raised by Methe, his petition is DISMISSED.                    With regard to

the issues raised by Gulf Best and the LWCC, we AFFIRM the BRB’s

decision to apply § 910(a) in calculating Methe’s average weekly

wage, its finding that Methe suffered permanent disability, and its

denial of contribution under § 908(f).                  We REVERSE the decision of

the BRB as to the date of maximum medical improvement, and REMAND

the case to the BRB to recalculate Methe’s compensation award

accordingly.

                                            I

      Michael Methe injured his back in March 2000, while working as

a journeyman electrician for Gulf Best Electric, Inc. He sued Gulf

Best and the LWCC for disability benefits, and the case was tried

before an ALJ in March 2002.           The ALJ’s findings relevant to this

appeal are: (1) that Methe suffers permanent and total disability;

(2) that his average weekly wage was $848.51, and was properly

calculated    using     §    910(c)    of       the    LHWCA;   (3)   that   employer

contributions to Methe’s retirement, annuity, and health insurance

plans should be excluded from calculations of his average weekly

wage; (4) that Methe reached maximum medical improvement on June 8,

2000; and (5) that Gulf Best failed to show that Methe’s current

disability was not due solely to his 2000 injury, and therefore is

not entitled to contribution under § 908(f) of the LHWCA.

                                            2
     Methe, Gulf Best, and the LWCC appealed the ALJ’s decision to

the BRB.    The BRB concluded that the ALJ erred in applying § 910(c)

of the LHWCA in computing Methe’s average weekly wage.              Applying §

910(a) instead, the BRB modified the ALJ’s order to reflect an

average weekly wage of $942.65.               The BRB affirmed the ALJ’s

conclusions as to permanent disability, exclusion of employer

contributions to health insurance and retirement plans from the

average weekly wage, the date of maximum medical improvement, and

denial of relief under § 908(f).

     The parties now petition this court to review certain portions

of the BRB’s decision.       Gulf Best and the LWCC ask us to reverse

the BRB’s ruling that Methe’s average weekly wage is properly

calculated under § 910(a) of the LHWCA, rather than § 910(c).             They

further challenge the BRB’s decision as it relates to the permanent

nature     of   Methe’s   disability,       the   date   of   maximum   medical

improvement, and denial of relief under § 908(f).             Methe asks us to

reverse the BRB’s affirmance of the ALJ’s decision to exclude

employer contributions to health insurance and retirement funds in

calculating his average weekly wage. The Director of the Office of

Workers’ Compensation Programs (“Director”) urges this court to

dismiss Methe’s claim for lack of jurisdiction, arguing that it was

not timely filed.

                                    II

     The LHWCA requires the BRB to accept the findings of the ALJ

if they are rational and supported by substantial evidence in the

                                        3
record considered as a whole.       Ceres Marine Terminal v. Director,

OWCP, 118 F.3d 387, 389 (5th Cir. 1997).         The BRB may not substitute

its judgment for that of the ALJ or engage in a de novo review of

the evidence.   Id.     This court, in turn, reviews decisions by the

BRB to determine whether it has adhered to its proper scope of

review –- i.e., whether the ALJ’s findings of fact are supported by

substantial evidence and are consistent with the law.          H. B. Zachry

Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000).

                                     A

     We first consider the threshold question of jurisdiction.

This court’s jurisdiction to hear a petition for review from an

LHWCA administrative decision is derived solely from the appeal

provision   contained    in   33   U.S.C.   §    921(c).    This   provision

requires, inter alia, that a petition for review of a final order

of the BRB be filed no later than sixty days following the issuance

of the order.   The parties do not dispute that the jurisdictional

requirements of § 921(c) are met with respect to all of the issues

raised in the petition of Gulf Best and the LWCC.

     The Director asserts that Methe’s petition, having been filed

seventy days after the BRB issued its final order, was not timely.

As such, the Director contends, this court lacks jurisdiction to

consider Methe’s claim that the BRB erred in excluding employer

contributions to his retirement and health insurance funds when

calculating his average weekly wage.            We agree.



                                     4
     Methe has styled his petition a “Cross-Application to Enforce

Benefits Review Board Order”.              In substance, however, it is simply

a request that this court reverse the BRB’s order, and thus allow

inclusion       of    his    employer’s    $3.47       per   hour    contributions        to

retirement and health insurance funds in calculation of his average

weekly    wage.        Because    the     claimant      raises      this    issue    as   an

affirmative challenge to the BRB’s decision rather than as a

defense    to    his    employer’s      appeal,      his     “cross-application”          is

properly characterized as a petition for review and, thus, is time-

barred by § 921(c).          See Dole v. Briggs Construction Co., Inc., 942

F.2d 318, 320 (6th Cir. 1991).

     Methe contends that, because he has filed a petition for

modification of the compensation award with the Department of Labor

pursuant to 33 U.S.C. § 922, it would be a “waste of this Court’s

time and resources” to dismiss his petition, only to have the claim

eventually “work its way back through the system”.                         Methe cites no

authority       for    the    proposition       that    we    may    ignore    the    time

requirements for appeal imposed by an agency’s organic statute for

the sake of equity or judicial efficiency.                     Accordingly, Methe’s

petition is dismissed.

                                            B

     We now turn our attention to the four substantive issues

raised by Gulf Best and the LWCC.               In their petition, they contend

that the BRB erred: (1) in affirming the ALJ’s decision that Methe

suffered permanent disability; (2) in affirming the ALJ’s finding

                                            5
that Methe reached maximum medical improvement on June 8, 2000; (3)

in reversing the ALJ’s decision to apply § 910(c) of the LHWCA in

calculating Methe’s average weekly wage and instead applying §

910(a); and (4) in affirming the ALJ’s decision to deny Gulf Best

contribution under § 908(f).

                                (1)

     Gulf Best and the LWCC contend that the ALJ and BRB erred in

deciding that Methe has suffered permanent disability.   A claimant

is considered permanently disabled under the LHWCA if he or she

suffers any residual disability after achieving maximum medical

improvement.   Abbott v. La. Ins. Guaranty Assn., 40 F.3d 122, 125

(5th Cir. 1994).   Gulf Best and the LWCC argue that, because Methe

has unreasonably refused surgery to alleviate the symptoms of his

back injury, he has not achieved maximum medical improvement, and

thus cannot be considered permanently disabled.   We do not agree.

     The LHWCA allows an ALJ to suspend payment of compensation if

a claimant “unreasonably refuses to submit to medical or surgical

treatment ... unless the circumstances justified the refusal”.   33

U.S.C. § 907(d)(4).    Gulf Best and the LWCC contend that Methe’s

refusal to undergo back surgery recommended by his physician, Dr.

Bourgeois, is both unreasonable and unjustifiable.   They point to

Dr. Bourgeois’s testimony that surgery of the type in question

yields significant improvement in eighty-five to ninety percent of

patients and represents Methe’s only chance of improving his

condition.

                                 6
     The ALJ acknowledged the relevance of this testimony, but

assigned more weight to Dr. Bourgeois’s statement that there is “no

guarantee, even with surgery, that [Methe’s] functional level would

improve”.   The ALJ further relied on a statement by the physician

hired by Gulf Best to examine Methe that, while he believed it

could be justified, surgery probably would not benefit Methe.

     In sum, although Dr. Bourgeois’s recommendation might have

persuaded some patients to undergo surgery, the ALJ’s finding that

Methe’s refusal was reasonable and justified is supported by

substantial evidence.   We therefore hold that the BRB did not err

in affirming the ALJ’s conclusion that Methe did achieve maximum

medical improvement, and thus suffered permanent disability.

                                 (2)

      Gulf Best and the LWCC further assert that, even if Methe has

reached maximum medical improvement, the ALJ and BRB erred in

concluding that it was achieved on June 8, 2000.    They argue that

the correct date of maximum medical improvement (“MMI date”) is,

instead, September 13, 2001.     We agree that the ALJ erred, as a

matter of law, in designating June 8, 2000 as the MMI date.

     Maximum medical improvement is reached when an injury has

received the maximum benefit of treatment such that the patient’s

condition will not improve.    Abbott, 40 F.3d at 126.   As discussed

supra, refusal of further treatment does not prevent a finding that

maximum medical improvement has been achieved where the refusal is

both reasonable and justified within the meaning of § 907(d)(4).

                                  7
Thus, the relevant inquiry becomes:          when did Methe reach a level

of recovery at which no treatment other than surgery could have

yielded further improvement?

     In settling upon June 8, 2000 as the MMI date, both the ALJ

and the BRB relied almost exclusively on Dr. Bourgeois’s opinion

regarding the date of maximum improvement. Dr. Bourgeois initially

gave September 13, 2001 as the MMI date, but later revised his

assessment to reflect a lack of actual improvement after June 2000.

Dr. Bourgeois stated in a letter that, although he had continued to

treat Methe with an eye toward further recovery until September

2001, June 8, 2000 actually represented the MMI date, since, in

hindsight, Methe’s health had actually worsened after that point.



     The ALJ’s decision to rely on Dr. Bourgeois’s retrospective

determination of the MMI date is inconsistent with our holding in

Abbott.      In Abbott, the claimant’s doctor continued to prescribe

treatment but, like Dr. Bourgeois, later decided that the treatment

had proven unsuccessful and accordingly revised the claimant’s MMI

date backward.     Id.    We affirmed the BRB’s decision that the date

on which treatment actually ceased was the correct MMI date, noting

that “[o]ne cannot say that a patient has reached the point at

which   no    further    medical   improvement   is   possible   until   such

treatment has been completed –- even if, in retrospect, it turns

out not to have been effective.”           Id.



                                       8
     We therefore hold that the ALJ erred, as a matter of law, in

accepting Dr. Bourgeois’s revision and designating June 8, 2000 as

the MMI date.       As such, we reverse the decision of the BRB as it

pertains to the date of maximum medical improvement and remand the

matter to the BRB for recalculation of Methe’s average weekly wage

based on an MMI date of September 13, 2001.

                                       (3)

     Gulf Best and the LWCC argue that the BRB erred in reversing

the ALJ’s decision to calculate Methe’s average weekly wage using

§ 910(c) of the LHWCA.        We conclude that the ALJ’s decision to

apply § 910(c) was contrary to law, and thus, that the BRB’s

decision to reverse and apply § 910(a) was not in error.

     Under    the    LHWCA,   a     claimant’s      average   weekly     wage   is

determined using one of three methods set forth in 33 U.S.C. §

910(a)-(c).     If the claimant has worked at the job at which the

injury took place “during substantially the whole of the year

immediately preceding his injury”, § 910(a) applies.                      If the

claimant has not worked at the job for substantially the whole of

the preceding year, § 910(b) applies.               If neither § 910(a) nor §

910(b) can be applied fairly and reasonably to determine the

average weekly wage, then § 910(c) is used.

     Gulf Best and the LWCC argue that the BRB erred in applying §

910(a)   because      Methe   did    not     work    for   Gulf   Best    during

substantially the whole of the preceding year. In its opinion, the

BRB found that Methe had worked 47.4 weeks, or 237 days, or 91

                                        9
percent of the workdays available in the year before his injury.

It referenced the Ninth Circuit’s holding in Matulic v. Director,

OWCP that, as a matter of law, § 910(a) must be applied where a

claimant has worked at least 75 percent of the available workdays

in the preceding year.        154 F.3d 1052, 1058 (9th Cir. 1998).        While

this   court     has   not   adopted   such   a   bright-line    test   for   the

applicability of § 910(a), it is clear to us that Methe’s record of

91 percent satisfies the requirement of § 910(a) that the claimant

have worked “substantially the whole of the year immediately

preceding the injury”.

       It is true that we previously have said that, even where the

requirements of § 910(a) are met, an ALJ may apply § 910(c) “if [§

910(a)] ‘can not reasonably and fairly be applied’”.               SGS Control

Services v. Director, OWCP, 86 F.3d 438, 441 (5th Cir. 1996).                 In

the case before us, the ALJ cited concern over the “fairness” of

possible overcompensation as his rationale for applying § 910(c),

noting that he “d[id] not agree with Claimant that [§] 910(a) was

designed    to     ‘show     what   Claimant      could   earn   under    ideal

circumstances’”. This position, however, is contrary to the one we

took in Ingalls Shipbuilding v. Wooley, in which we said that

“[t]he calculation mandated by § 910(a) aims at a theoretical

approximation of what a claimant could ideally have expected to




                                        10
earn ... had he worked every available work day in the year”.   204

F.3d 616, 618 (5th Cir. 2000) (internal citations omitted).1

     As such, we hold that the ALJ erred as a matter of law in

applying § 910(c) in calculating Methe’s average weekly wage.   We

therefore affirm the BRB’s decision to reverse the ALJ and to

calculate Methe’s wage under § 910(a).

                                (4)

     Finally, Gulf Best and the LWCC contend that the ALJ and BRB

erred in deciding that Gulf Best is not entitled to contribution

under 33 U.S.C. § 908(f).   We do not agree.

     The LHWCA provides, in § 908(f), that an employer may limit

its liability for an employee’s permanent disability if it can

show, inter alia, that the disability that exists after the work-

related injury is not due solely to the injury, but is the product

of a combination of both that injury and an existing permanent

partial disability.   See Director, OWCP v. Cargill, Inc., 709 F.2d

     1
       Over-compensation alone does not usually justify applying §
910(c) when § 910(a) or (b) may be applied. As the BRB noted in
its opinion, any over-compensation that the LHWCA yields “is built
into the system institutionally”. The Ninth Circuit observed in
Matulic that, when Congress amended § 910 in 1948 to reflect the
five-day work week, it must have been aware that, due to illness,
vacations, strikes, etc., virtually no one works every working day
of every week. Thus, ordinarily, § 910's fixed formula will over-
compensate the worker to some degree. This result, however,
comports with the humanitarian purposes of the LHWCA and the
courts’ mandate to construe the LHWCA broadly so as to favor
claimants.   See Matulic, 154 F.3d at 1057 (citing Edwards v.
Director, OWCP, 99 F.2d 1374, 1375 (9th Cir. 1993); Randall v.
Comfort Control, Inc., 725 F.2d 791, 796 (D.C. Cir. 1984); Odom
Constr. Co., Inc. v. U.S. Dept. of Labor, 622 F.2d 110, 115 (5th
Cir. 1980)).

                                11
616, 619 (9th Cir. 1983).    The employer bears the burden of proving

that the work-related injury would not have rendered the employee

permanently     and   totally   disabled   absent   the   pre-existing

disability.     Ceres, 118 F.3d at 390.

     Gulf Best and the LWCC argue that the ALJ’s finding that

Methe’s current disability was caused solely by his March 2000

injury is not supported by evidence. They cite a work-related back

injury that Methe suffered in 1987, as well as Dr. Bourgeois’s

diagnosis of a pre-existing spondylosis in Methe’s back, but do not

specify which of the two may have contributed to his present

disability.

     The ALJ assumed that Methe had a pre-existing disability but

nonetheless found that Methe’s current disability resulted entirely

from his work-related injury.     The ALJ found that Gulf Best and the

LWCC had produced no evidence to suggest that Methe suffered any

long-term effects of the 1987 injury, nor any evidence that would

tend to show Methe’s current disability was more disabling because

of the earlier injury.      In addition, the ALJ cited the opinion of

Dr. Bourgeois that Methe’s back problems resulted from his 2000

injury alone.

     We find no reversible error in the weighing of the evidence on

this question and, thus, affirm the ALJ’s holding and the BRB’s

affirmance.

                                   III



                                   12
         In sum, because we lack jurisdiction to entertain it, Methe’s

    petition for review is DISMISSED.     With regard to the date of

    maximum medical improvement, the decision of the Benefits Review

    Board is REVERSED, and the case is REMANDED to the Board for

    recalculation of Methe’s average weekly wage based on an MMI date

    of September 13, 2001.   The decision of the Benefits Review Board

    is in all other respects AFFIRMED.

1                  AFFIRMED, in part, REVERSED in part, and REMANDED.




                                    13
