     Case: 10-60454 Document: 00511503435 Page: 1 Date Filed: 06/09/2011




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

                                                 FILED
                                                                            June 9, 2011

                                       No. 10-60454                         Lyle W. Cayce
                                                                                 Clerk

WARREN JOSEPH,

                                                   Petitioner
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR, NORTHROP GRUMMAN,

                                                   Respondents




                        Petition for Review of an Order of the
                                Benefits Review Board
                                  BRB No. 07-179732




Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In this appeal, Warren Joseph challenges an order of the Benefits Review
Board (“BRB”) denying him workers compensation benefits under the Longshore
and Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. § 901 (2010). We
AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-60454 Document: 00511503435 Page: 2 Date Filed: 06/09/2011



                                 No. 10-60454

                       FACTS AND PROCEEDINGS
      On February 8, 2007, Joseph was working as an electrician for Northrop
Grumman Ship Systems, Inc. (“Northrop”) when he was exposed to smoke and
fumes from nearby welding. He left work early that day, and on February 10 he
was transported by ambulance to Singing River Hospital where he was
diagnosed with septic shock and bacterial community-acquired pneumonia. After
consulting with a number of physicians, all of whom agreed with the Singing
River diagnosis, he returned to work in mid-March. Northrop paid him
temporary disability benefits from February 12 through April 4. Joseph seeks
additional benefits, contending that his illness is related to his exposure to
smoke and fumes on February 8.
      Following a hearing, the Administrative Law Judge (“ALJ”) held that
Joseph’s injuries were not work related and denied his claim for worker’s
compensation. The BRB subsequently affirmed the ALJ. Joseph timely appeals.
                          STANDARD OF REVIEW
      We review decisions of the BRB to determine whether the BRB properly
determined that the ALJ’s factual findings 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). Substantial evidence is defined as such relevant evidence that
a reasonable mind might accept as an adequate basis for a factual conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971). This court reviews the legal
conclusions of the BRB de novo. Tarver v. Bo–Mac Contractors, Inc., 384 F.3d
180, 181 (5th Cir. 2004). We give deference to the Director of the Office of
Workers Compensation Programs’ interpretations of the LHWCA. Pool Co. v.
Cooper, 274 F.3d 173, 177 (5th Cir. 2001).
                               DISCUSSION
      Joseph raises numerous issues on appeal; the primary issue is whether the
BRB was correct in holding that the ALJ’s decision was based on substantial

                                        2
     Case: 10-60454 Document: 00511503435 Page: 3 Date Filed: 06/09/2011



                                      No. 10-60454

evidence and is consistent with the law. Under the LHWCA, a claimant has the
burden of proving a prima facie case for coverage, viz., that (1) an injury was
suffered, and (2) the injury occurred in the course of employment or was caused,
aggravated or accelerated by conditions at the work place. Ortco Contractors, Inc.
v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003). A claimant’s proof of these two
predicates triggers a presumption that the injury is work related and that the
claimant is entitled to coverage. 33 U.S.C. § 920(a). To avoid coverage, the
employer must affirmatively rebut this presumption with “substantial evidence
to the contrary.” Charpentier, 332 F.3d at 287. This evidentiary standard is less
demanding than the ordinary civil requirement that a party prove a fact by a
preponderance of the evidence. Id.
       The ALJ held that Joseph made a prima facie case due to the close timing
between his symptoms and his exposure to the welding fumes. However, the ALJ
found that Northrop had presented substantial evidence to the contrary because
all the physicians1 who examined Joseph agreed that his illness was not caused
by his exposure to smoke and fumes at Northrop.2 The ALJ denied the claim for
benefits, and the BRB affirmed. This finding is supported by the record. There
is no medical evidence linking Joseph’s illness to his workplace, and the timing

       1
        According to Joseph, he was prevented from seeing his physician of choice. The ALJ
determined that Joseph consulted his physician of choice. We agree. Joseph has not presented
any evidence suggesting that Northrop prevented him from choosing his physicians.
       2
         Joseph raises numerous challenges to his medical records. First, he alleges that his
privacy rights under the Health Insurance Portability and Accountability Act (“HIPPA”) were
violated when the medical records documenting his treatment were provided to his employer.
As a condition of an employee’s recovery against his employer, the treating physician must
provide the employer with a report of the employee’s injuries within ten days. 33 U.S.C. §
907(d)(2). Moreover, Northrop obtained the records by subpoena which Joseph has not shown
was invalid. Second, Joseph argues that his medical records are incomplete, had been
tampered with, and stolen. The ALJ gave him thirty days to produce the allegedly missing
documents, but Joseph failed to do so. Joseph has not demonstrated that his medical records
are incomplete, or have been tampered with or stolen. Third, he argues that the medical
records were not admissible evidence, but fails to provide a coherent argument or to cite any
supporting legal authority. We reject these challenges.

                                              3
    Case: 10-60454 Document: 00511503435 Page: 4 Date Filed: 06/09/2011



                                 No. 10-60454

of his illness is purely coincidental. We affirm the BRB’s holding that Joseph’s
illness was not related to exposure to welding fumes at Northrop.
      Also, Joseph raises numerous new arguments for the first time on appeal.
For example, he argues that the ALJ engaged in improper ex parte
communications with opposing counsel, that the ALJ failed to enforce its
discovery order, and that his illness was caused by heavy-metal poisoning. These
issues, and others listed in Joseph’s brief, are waived because Joseph failed to
present them below. See Aetna Cas. & Sur. Co. v. Dir., Office of Worker’s Comp.
Programs, U.S. Dept. of Labor, 97 F.3d 815, 819 (5th Cir. 1996).
      Joseph reurges several arguments presented in his brief before the BRB,
but unaddressed by the BRB’s opinion. He argues that the ALJ did not fully
examine the record, that Joseph should have been provided with a list of
chemicals used at his workplace, that he was entitled to certain stipulations at
the hearing, that he should have been permitted to take certain depositions, and
that the ALJ impermissibly removed a record from his medical file. None of these
arguments entitle Joseph to the relief he requests. The ALJ’s detailed opinion
shows that it reviewed the entire record, and Joseph has not demonstrated how
any of these arguments would alter the BRB’s holding.
      In addition, Joseph’s brief contains repeated accusations that his treating
physicians, the ALJ, and Northrop conspired to deny him medical care and
benefits and that the ALJ and the BRB engaged in “corrupt and unethical
conduct.” We decline to entertain these frivolous and entirely unsupported
arguments.
      We DENY Joseph’s motion to file a reply brief out of time and his motion
to strike Northrop’s response as untimely. Joseph’s motion to supplement the
record is GRANTED.
                                CONCLUSION
      We AFFIRM the BRB’s decision denying Joseph’s request for benefits.

                                       4
