                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 17, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       ____________________

                           No. 05-60324

                         Summary Calendar
                       ____________________


     FRIEDE GOLDMAN OFFSHORE; ZURICH AMERICAN INSURANCE COMPANY

                                    Petitioners

          v.

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

                                    Respondents


_________________________________________________________________

                       Petition for Review:
                      Benefits Review Board
                            No. 04-551
_________________________________________________________________

Before KING, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

     Petitioners Friede Goldman Offshore and Zurich American

Insurance Company seek review of an administrative action.        For

the reasons provided below, this petition for review is DENIED.



                          I.   BACKGROUND

     *
        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that this opinion should not be published and is not precedent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.
     Respondent David Chandler (“Chandler”) was employed by

petitioner Friede Goldman Offshore (“Friede Goldman”) as a welder

at Friede Goldman’s shipyard at Port Bienville, Mississippi.         On

October 15, 2001, during the course of his employment, Chandler

fell from a collapsing scaffold.       After losing consciousness,

Chandler was immediately treated for a closed head injury and

trauma to his back, hip, and knee.       Over the next few months,

Chandler was referred to various orthopedists.       He returned to

light duty work with Friede Goldman on October 28, 2001, and he

continued to work in Friede Goldman’s tool room and electrical

shop without loss of pay until April 25, 2002, when Friede

Goldman closed its facilities.

     In November 2001, Dr. R.A. Graham (“Graham”) discovered that

Chandler had torn his meniscus.    He recommended surgery, and he

provided Friede Goldman’s safety administrator with a work

release for Chandler.   In December 2001, Dr. Charles Winters

(“Winters”) confirmed Chandler’s meniscal tear and determined

that Chandler also suffered from a herniated disc.       Winters

performed arthroscopic surgery on Chandler’s knee on January 7,

2002, and he recommended lumbar epidural steroid injections for

his back condition on January 30, 2002.       At his administrative

hearing, Chandler testified that Winters’s surgery was

unsuccessful in relieving the pain in his knee.       Although Friede

Goldman refused to authorize medical payments, Chandler continued



                                   2
to seek further treatment for both his knee and back pain.1    On

April 15, 2003, Dr. Joe Jackson (“Jackson”) determined that

Chandler’s chronic back pain and intermittent leg pain were both

attributable to his injured disc.

     After Friede Goldman’s facilities closed, Chandler was hired

by Tanco Engineers (“Tanco”) as a welder.   Chandler worked for

Tanco until November 30, 2002, when his continuing back pain

forced him to quit.   On November 11 and 26, 2002, just before he

quit his job at Tanco, Chandler received steroid injections from

Dr. Thomas Trieu (“Trieu”) in both his knee and his back in an

unsuccessful attempt to arrest the progressive deterioration of

his condition.   After quitting his job at Tanco, Chandler took up

a less physically demanding position as a part-time helper with

R.A. Braun Construction, but his condition failed to improve.       On

April 3, 2003, Jackson told Chandler that he would need to be

retrained because his back injury would never permit him to

resume his career as a welder.

     As a result of his injuries, Chandler filed a claim for

benefits under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. § 901 et seq., against Friede Goldman and

its insurer Zurich American Insurance Company.   This claim was

referred to the Department of Labor’s Office of Administrative


     1
        Friede Goldman approved Graham’s initial evaluation, but
withdrew its authorization for Winters’s surgery on January 6,
2002.

                                 3
Law Judges for a formal hearing, which was held on September 12,

2003, in Metairie, Louisiana.

       At the formal hearing, Friede Goldman argued that Chandler

had failed to file a timely claim as required by section 13 of

the LHWCA (“section 13”), 33 U.S.C. § 913.    Section 13 states

that

       the right to compensation for disability or death under
       this chapter shall be barred unless a claim therefore is
       filed within one year after the injury or death. . . .
       The time for filing a claim shall not begin to run until
       the employee or beneficiary is aware, or by the exercise
       of reasonable diligence should have been aware, of the
       relationship between the injury or death and the
       employment.

33 U.S.C. § 913(a) (2000).    Friede Goldman contended that

Chandler failed to file a written claim valid under the LHWCA’s

filing requirements prior to November 18, 2002, when Chandler’s

attorney wrote a letter to a claims adjuster requesting an

informal conference.    On the other hand, Friede Goldman argued

that Chandler knew or should have known the extent of his

disabling injury and its impact on his future employment on

November 6, 2001, when Dr. Graham recommended surgery, over a

year before the earliest valid filing date.    Therefore, Friede

Goldman argued that Chandler’s right to compensation was time-

barred by section 13.

       In response, Chandler argued that his claim was timely filed

on October 17, 2001, over a year before Friede Goldman’s date,

when one of his earliest doctor’s bills was provided to a claims


                                  4
adjuster and filed with the Department of Labor.   In addition,

Chandler also argued that he did not become aware of the full

extent of his injury and its relation to his future employment

until November 30, 2002, when his back pain forced him to quit

welding for Tanco; therefore, even if his claim was not properly

filed until November 2002, it remained timely because he lacked

the requisite awareness of his injury until that time.

     On March 5, 2004, the administrative law judge (“ALJ”)

issued his decision granting Chandler the benefits sought in his

claim.   In this decision, the ALJ accepted Chandler’s first

argument and found that the medical bill Chandler’s attorney

provided to the claims adjuster and filed with the Department of

Labor on October 17, 2001, constituted a claim for medical

treatment valid for the timeliness purposes of section 13.     After

reviewing Chandler’s medical records and his work history, the

ALJ also credited Chandler’s testimony that he did not become

aware of the full extent of his injury and his related loss of

earning potential until November 30, 2002.   As a result, the ALJ

found that even if the October 2001 medical bills did not

constitute a valid filing, Chandler’s later claim was timely and

fell within section 13’s one-year limit.   Accordingly, the ALJ

granted Chandler’s claims for disability and medical

compensation.

     Friede Goldman appealed to the Department of Labor’s

Benefits Review Board (“BRB”), challenging the ALJ’s finding that

                                 5
Chandler’s claim was timely filed, as well as the ALJ’s average

weekly wage and post-injury wage-earning determinations.    On

March 22, 2005, the BRB filed its per curiam decision, affirming

the ALJ’s decision.    More specifically, the BRB affirmed the

ALJ’s determination that Chandler was not aware of the full

extent of his injury until November 30, 2002, when his continuing

back pain forced him to quit working for Tanco.    Therefore, the

BRB also affirmed the ALJ’s finding that the claim for

compensation Chandler filed was timely because it was filed

within one year of the date Chandler became aware of the full

extent of his injury.    The BRB also affirmed the ALJ’s average

weekly wage and post-injury wage-earning determinations.2

                           II.   DISCUSSION

     This court has jurisdiction over this petition for review

pursuant to 33 U.S.C. § 921(c).    We review the decisions of the

BRB for errors of law and to determine whether the BRB correctly

concluded that the ALJ’s order “was supported by substantial

evidence on the record as a whole and is in accordance with the

law.”    Ingalls Shipbuilding, Inc. v. Dir., Office of Workers’

Comp. Programs, 991 F.2d 163, 165 (5th Cir. 1993) (quoting

Avondale Indus. v. Dir., Office of Workers’ Comp. Programs, 977

F.2d 186, 189 (5th Cir. 1992)).    The sole issue presented by this

     2
        In their petition for review with this court, the
petitioners do not challenge these administrative wage and wage-
earning determinations, focusing solely upon the administrative
finding that Chandler’s claim was timely.

                                   6
petition for review is whether the BRB erred in affirming the

ALJ’s determination that Chandler’s claim for compensation

benefits was timely filed.

     The timeliness of a claim is presumed under the LHWCA, and

the burden to show that a claim was not filed rests on employers

such as Friede Goldman.   33 U.S.C. § 912(b)(2) (2000); Avondale

Shipyards Inc. v. Vinson, 623 F.2d 1117, 1119-21 (5th Cir. 1981).

For the statute’s one-year limitation to run against a claimant

such as Chandler, “he must know (or should know) the true nature

of his condition, i.e., that it interferes with his employment by

impairing his capacity to work, and its causal connection with

his employment.”   Marathon Oil Co. v. Lunsford, 733 F.2d 1139,

1141 (5th Cir. 1984).

     In their briefs before this court, the petitioners argue

that because Chandler had sustained previous injuries and had

completed two years of college, he should reasonably have

expected some loss of wage-earning capacity after his initial

consultation with Dr. Graham in November 2001.   We disagree.      The

ALJ rationally determined, after carefully examining Chandler’s

work history and medical records, that Chandler did not become

aware of the full extent of his injuries until November 2002.       As

the BRB correctly concluded, this finding fully accords with the

text of the LHWCA and the prior holdings of this court.     See,

e.g., Lunsford, 733 F.2d at 1141 (refusing to apply the LHWCA



                                 7
statute of limitations, even though the clamaint took three weeks

of leave after the initial injury, because the initial injury was

not seen as having any significant effect upon his future earning

capacity).   This finding is also supported by substantial

evidence in the record, including, but not limited to, the

depositions of Trieu and Winters.     Contrary to petitioners’

suggestions, we see no reason to conclude that either Chandler’s

medical history or his educational background afforded him

special insights that should have superseded the advice and

diagnoses of his physicians.

                         III.   CONCLUSION

     For the reasons stated above, the petition for review is

DENIED.




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