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

                                                 FILED
                                                                             May 4, 2009

                                     No. 08-60064                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



FRIEDE-GOLDMAN HALTER INCORPORATED, c/o Texas Property and
Casualty Insurance Guaranty Association; RELIANCE NATIONAL
INDEMNITY COMPANY, c/o Texas Property and Casualty Insurance Guaranty
Association
                                                     Petitioners
v.

J O R G E A E SC A R E N O ; D IR E C T O R , O F F IC E O F W O R K E R 'S
COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR

                                                                         Respondents


               Petition for Review from the Benefits Review Board,
                             U.S. Department of Labor


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner Texas Property Casualty Insurance Guaranty Association
(TPCIGA) seeks a review of an order of the Benefits Review Board (BRB).
TPCIGA challenges the BRB’s award of disability benefits, attorney’s fees, and
interest under the Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. § 901 et seq. TPCIGA contends that (1) it was not liable under state



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60064

law for penalties, attorney’s fees, and interest; (2) it was not liable for attorney’s
fees because it had accepted the recommendations of the informal conference;
and (3) the agency’s factual findings in respect to causation and disability were
not based on substantial evidence. Finding these arguments unpersuasive, the
petition for review is DENIED.
I. Background
      TPCIGA is a state-created association which pays claims for insolvent
insurers. Claimant Escareno was injured while working for Friede-Goldman.
While Escareno’s claim was pending, both Friede-Goldman and its insurance
carrier, Reliance, became insolvent. Accordingly, TPCIGA became the insurer
and the sole respondent that defended against Escareno’s claims before the
agency.
      On March 17, 2000, Escareno was struck on the right side of his head and
shoulder by a metal frame weighing approximately 350 pounds during the
course of his employment. He was subsequently treated for headaches, dizziness,
and depression. He sought ongoing disability and medical benefits under the
LHWCA. The case was presented to an administrative law judge (ALJ).
      The ALJ concluded that Escareno presented a prima facie showing that
his injury was compensable under the LHWCA. Based on a review of the record
as a whole, the ALJ concluded that the claimant established a causal
relationship between his employment and his headaches, dizziness, and
depression. Accordingly, the ALJ awarded the claimant temporary total
disability compensation from March 18, 2000 through April 23, 2000, partial
disability compensation from April 24, 2000 through May 17, 2000, and
temporary total disability from May 18, 2000 and continuing. The ALJ also


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awarded Escareno medical expenses and interest. Initially, only Reliance and
Friede-Goldman were held liable; however, because they became insolvent
during the proceedings, Escareno moved for reconsideration to hold TPCIGA
liable. In ruling on the motion for reconsideration, the ALJ concluded that
TPCIGA would be liable for all interest, penalties, and attorney’s fees related to
the case. After the ALJ issued its decision on the motion for reconsideration,
Escareno filed an application for attorney’s fees and TPCIGA filed a response.
On March 20, 2007, before the ALJ reached any decision in respect to attorney’s
fees, TPCIGA filed a notice of appeal to the BRB in respect to the ALJ’s award
of benefits and its declaration on reconsideration that TPCIGA is liable. On June
19, 2007, the ALJ awarded Escareno attorney’s fees. In an unpublished decision,
on December 17, 2007, the BRB affirmed the ALJ’s decision awarding benefits
and holding TPCIGA liable but declined to consider the ALJ’s decision as to
attorney’s fees because it was not part of the notice of appeal.
      TPCIGA now timely petitions this court for a review of the BRB’s
December 17, 2007 decision.
II. TPCIGA’s Designation as a Carrier
      TPCIGA, for the first time in this petition, contests that it is a LHWCA
carrier and challenges subject-matter jurisdiction. As in a similar case involving
TPCIGA, Levingston Ship Bldg. Co. v. Pelaez, Case No. 07-60616, 2009 WL
577736, at *2 (5th Cir. Mar. 6, 2009) (unpublished), here, “[b]efore the ALJ,
TPCIGA repeatedly referred to itself as Levingston’s carrier. The ALJ similarly
referred to TPCIGA in that way. And, although TPCIGA referred to itself as
Levingston’s ‘insurer’ before the BRB, it did not contest its carrier designation.”
For the same reasons as in Levingston, “[h]aving repeatedly referred to itself as


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the carrier and not contested that designation before the BRB, TPCIGA is
estopped from contesting that designation now.” Id. As in Levingston, “[t]o the
extent TPCIGA’s contention is properly read as a challenge to the DOL’s
jurisdiction -- rather than merely a repetition of its precluded challenge to
having been designated a carrier -- we reject it. The DOL indisputably has
jurisdiction under the LHWCA” and “TPCIGA is liable under the LHWCA for
penalties, attorney's fees, and interest.” Id. at *2-*3.
III. Attorney’s Fees
      The BRB did not address TPCIGA’s argument that it is not liable for
attorney’s fees because it had accepted the agency’s recommendation after the
informal conference. In the only order currently before us for review, the BRB
declined to review this issue because the “employer has not properly appealed
the administrative law judge’s award of a fee.” In its petition, TPCIGA fails to
identify any errors in BRB’s refusal to address this issue on procedural grounds,
but, instead, challenges the merits of the underlying fee award. Accordingly,
TPCIGA has failed to properly and timely exhaust its administrative remedies
as to the award of attorney’s fees by failing to properly abide by the BRB’s
procedure. We decline to address this issue. See Cox v. Benefits Review Bd., 791
F.2d 445, 447 (6th Cir. 1986); Hix v. Director, Office of Workers' Compensation
Programs, 824 F.2d 526, 527-28 (6th Cir. 1987); Duncanson-Harrelson Co. v.
Director, Office of Workers' Compensation Programs, 644 F.2d 827, 832 (9th Cir.
1981) (declining to review issues not properly presented to the BRB); see also
Board of Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068, 1072
(5th Cir. 1969) (“The general rule of appellate review from decisions of an
administrative agency is ‘that courts should not topple over administrative


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decisions unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its practice.’” (quoting
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)); Public
Citizen, Inc. v. U.S. E.P.A., 343 F.3d 449, 461 (5th Cir. 2003) (“Absent
exceptional circumstances, a party cannot judicially challenge agency action on
grounds not presented to the agency at the appropriate time during the
administrative proceeding.”).
IV. Causation and Extent of Injury
      “This court . . . 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.” Gulf Best
Elec., Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004). In respect to causation and
disability, TPCIGA is requesting this court to overturn the ALJ’s credibility
determination because the ALJ relied on the claimant’s expert testimony rather
than TPCIGA’s expert testimony. “An ALJ is a factfinder and is entitled to
consider all credibility inferences. He can accept any part of an expert's
testimony; he may reject it completely.” Ortco Contractors, Inc. v. Charpentier,
332 F.3d 283, 292 (5th Cir. 2003) (citation and quotation marks omitted). The
agency’s determination is supported by expert testimony and we have no basis
to overturn its findings as to causation and the extent of injury because these
factual findings are based on substantial evidence.
      For the foregoing reasons, we DENY the petition.




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