                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                        In the                                  July 28, 2004

  United States Court of AppealsCharles R. Fulbruge III
                                                                   Clerk
              for the Fifth Circuit
                   ___________________

                       Nº 03-60934
                    Summary Calendar
                   __________________



              INGALLS SHIPBUILDING, INC.,
NOW DOING BUSINESS AS NORTHROP GRUMMAN SHIP SYSTEMS, INC.,

                                        Petitioner,

                         VERSUS

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
        UNITED STATES DEPARTMENT OF LABOR,

                                        Respondent,

                     LEON BOLDEN,

                                        Claimant-Respondent.


                   ___________________

                  Appeal from an Order of
                 the Benefits Review Board
                        m 02-0859
                        m 01-0693
                         m 00-465
                   ___________________
Before SMITH, DEMOSS, and STEWART,                         turned to work.2
  Circuit Judges.
                                                              In February 1995, bothered by pain in his
                                                           legs and feet, Bolden sought relief from Dr.
JERRY E. SMITH, Circuit Judge.*                            Wetzel, a chiropractor, who referred him to an
                                                           orthopedic surgeon, Dr. Semon, in April of
   This is an appeal by employer Ingalls Ship-             that year. Semon diagnosed Bolden with a
building, Inc. (“Ingalls”), of a final order of the        bulging or herniated disc for which he was
Benefits Review Board (“BRB”). Agreeing                    treated conservatively. When treatment result-
with the findings of fact and conclusions of               ed in no lasting improvement, Bolden filed for
law of the administrative law judge (“ALJ”) in             short-term disability in May.
his Decision and Order on Second Remand,
the BRB ruled that Ingalls owed Leon Bolden                   In June, Semon performed two diskograms
disability compensation and medical expenses               and a percutaneous diskectomy. Finding that
under the Longshore and Harbor Workers’                    the June procedure had not relieved the pain,
Compensation Act (“the Act”). In addition,                 Semon recommended a lumbar laminectomy,
the BRB denied Ingalls partial relief under                an open surgical procedure, in September.
§ 8(f) of the Act.1 We affirm.                             Hesitant to undergo such a procedure, Bolden
                                                           decided to live with the pain and returned to
                       I.                                  work for some two weeks between August 28
   The facts are undisputed. Bolden is a fifty-            and November 30, 1995, before deciding he
five-year-old electrician who worked for In-               could no longer work in his condition.
galls intermittently for nineteen years begin-
ning in the fall of 1969. He was employed                      On September 11, 1995, an attorney in-
continuously from 1987 until May 1995. In                  formed Bolden that he did not have to prove a
1988, he fell on his back while volunteering at            specific date and time of injury to receive ben-
his child’s school. In addition to this back in-           efits under the Act. He alleges that he had not
jury, Bolden suffered a total of six work-re-              filed for benefits from Ingalls for his back in-
lated injuries over the course of his employ-              jury earlier because he was unable to pinpoint
ment at Ingalls. All of these injuries were mi-            a specific incident that led to disability. On
nor, and except for the injury to his wrist in             learning, however, that no such date was re-
1991, Bolden recovered completely and re-                  quired, he promptly filed a Form LS-203 and
                                                           notified Ingalls on September 25.

                                                              On November 30, 1995, Bolden sought
   *
                                                           treatment from Dr. Fontana, an orthopedic
     Pursuant to 5TH CIR. R. 47.5, the court has           surgeon who had treated his wrist injury in
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                                              2
                                                                The wrist injury in 1991 resulted in a three
   1
    Section 8(f) shifts, from the employer to the          percent impairment to Bolden’s upper extremity
Special Fund established by the Act, liability to          and permanent restrictions. These restrictions,
pay compensation for permanent disability after            however, did not inhibit him from performing his
104 weeks. 33 U.S.C. §§ 908(f), 944.                       routine job duties.

                                                       2
1991 and 1992. Fontana diagnosed degenera-               for disability benefits. The ALJ also concluded
tive disc disease and recommended additional             that Bolden, although triggering the § 20(a)
conservative treatment. In early 1996, Bolden            presumption (that the injuries were causally
was diagnosed with arterial insufficiency and            related to his employment), had failed to meet
underwent several procedures to correct this             his burden of proof in the face of Ingalls’s re-
vascular condition. He also was found to suf-            buttal and therefore was not entitled to medi-
fer from peripheral neuropathy.                          cal benefits either. Bolden again appealed to
                                                         the BRB.
    Semon and Fontana are of the opinion that
Bolden’s other conditions are unrelated to his              The BRB determined that the ALJ had
employment and back injury. They also agree              erred in finding that Ingalls had established a
that Bolden’s degenerative back disease can be           rebuttal of the § 20(a) presumption. Given
caused by “regular wear and tear” and that               this failure, the BRB then opined that Bolden’s
specific events do not always occur to signal a          condition is work-related as a matter of law,
back injury like his. Neither doctor states de-          and the only question that remained was the
finitively that Bolden’s injury was caused by            amount of compensation. The BRB also
his work, though neither is willing to state             reversed the ALJ’s finding that Bolton’s claim
unequivocally that it was not.                           was barred for lack of compliance with
                                                         § 12(a), noting that no evidence existed in the
                        II.                              record to support that finding. The BRB then
    This case was remanded twice by the BRB              remanded for a second time for the ALJ to
before the BRB affirmed the ALJ’s Order on               consider the merits of the claim.
Second Remand and entered a final order. In
his first decision, the ALJ denied Bolton’s                  Addressing the merits on second remand,
claim for disability benefits, finding that he had       the ALJ found that Bolden had established a
failed to give timely notice of injury under §           prima facie case of total disability and that In-
12(a) of the Act, 33 U.S.C. § 912(a), and that           galls had offered no substantial evidence to the
claimant’s failure was not excused under §               contrary. Accordingly, the ALJ awarded tem-
12(d).                                                   porary total disability compensation from
                                                         May 9, 1995, through November 29, 1995
    In the first appeal, the BRB found that the          (the day before, according to Fontana, Bolden
ALJ had erred in his consideration of timeli-            reached “maximum medical improvement”).
ness by failing to determine the date on which           Ingalls also was ordered to pay permanent to-
Bolden became, or should have become, aware              tal disability compensation from November 30,
that his injury was in fact work-related. The            1995, forward. These payments were to be
BRB also stated that the ALJ had erred by                made based on Bolden’s average weekly wage
failing to give Bolden the benefit of the                of $485.88.
§ 20(b), 33 U.S.C. § 920(b), presumption that
notice had been filed timely under § 12(a).                 Because the BRB had already determined
                                                         that Bolden’s condition was work-related as a
   On remand, the ALJ, applying the § 20(b)              matter of law, the ALJ also found that Bolden
presumption, still determined that Bolden’s              was entitled to all reasonable medical expenses
notice was untimely and thus he was ineligible           incurred with Fontana relating to Bolden’s


                                                     3
lower back condition. The ALJ also denied                      the burden rests with the employer to prove
Ingalls’s request for partial relief from its com-             otherwise. 33 U.S.C. § 920(b).
pensation liability under § 8(f). As we have
said, the BRB affirmed.                                           On second appeal, the BRB decided that
                                                               the ALJ’s finding that the § 20(b) presumption
                     III.                                      had been rebutted contravened all available ev-
   We have jurisdiction over Ingalls’s petition                idence and that Bolden had demonstrated un-
for review pursuant to § 21(c) of the Act, 33                  awareness of the relatedness of his injury to
U.S.C. § 921(c), and FED. R. APP. P. 15(a).                    work until September 1995, when he filed his
We review BRB decisions de novo, applying                      claim. The facts provide substantial evidence
the same standard as does the BRB, upholding                   for this finding, so Bolden’s eligibility for dis-
the decision of the ALJ when it is in accor-                   ability benefits is not time-barred.
dance with law and supported by substantial
evidence. 33 U.S.C. § 921(b)(3); e.g., New                                             B.
Thoughts Finishing Co. v. Chilton, 118 F.3d                        To become eligible for disability and medi-
1028, 1030 (5th Cir. 1997).                                    cal benefits under the Act, a claimant must es-
                                                               tablish causation between the injury and his
                        IV.                                    job. Ingalls contends that Bolden fails to qual-
    Ingalls appeals the BRB’s final order af-                  ify for the § 20(a) presumption, which assumes
firming the ALJ’s decision and order on sec-                   that his injury is causally related to his
ond remand. Specifically, Ingalls questions                    employment.
the BRB’s conclusion that Bolden established
a prima facie case (thus invoking the § 20 pre-                    To invoke the presumption, a claimant must
sumption), as well as its finding that Bolden                  initially demonstrate that he “suffered a harm
failed to rebut that presumption. Additionally,                and that employment conditions existed which
Ingalls argues that Bolden’s inability to work                 could have caused, aggravated or accelerated
is a result not of his back condition, but of                  the condition.”      Merrill v. Todd Pac.
other medical problems, so Ingalls should not                  Shipyards Corp., 25 BRBS 140 (1991) (em-
be liable for disability benefits. In the alterna-             phasis added). Ingalls inadequately states the
tive, Ingalls urges that if it is liable, it is eligible       burden a claimant must meet to invoke the
for partial relief under § 8(f). Finding no er-                presumption. Ingalls avers that a claimant
rors of law or clear errors of fact, we deny the               must prove that “he sustained an injury in the
petition for review.                                           course and scope of his employment.” Indeed,
                                                               the Act requires only that a claimant prove
                      A.                                       conditions that might have caused, aggravated,
   Under § 12(a) of the Act, a claimant who                    or accelerated an injury, to shift the burden of
sust ains a traumatic injury is required to file               proof to the employer. The claimant need not
notice of the injury within thirty days of the                 prove that his job was the proximate cause of
date on which he became aware, or should                       his injury, but merely that it may have been a
have become aware, of the relationship be-                     cause.
tween his injury and his employment. 33
U.S.C. § 912(a). He is entitled to the pre-                       Bolden’s employment at Ingalls included
sumption that the notice was timely filed, and                 the lifting and carrying of heavy boxes on a


                                                           4
daily basis. Such strenuous work might easily                  Ingalls provides no evidence whatsoever to
have caused or worsened his back condition                 counter this possibility. The remaining evi-
over time. The ALJ, on first remand, was                   dence Ingalls cites is also insufficient, because
therefore correct in finding that Bolden had               it merely indicates an unwillingness on the part
met his initial burden and that the § 20(a) pre-           of Bolden’s doctors to state with certainty that
sumption was invoked.                                      his injury was caused by his job. As we have
                                                           noted, however, those doctors are just as un-
   Once a claimant has invoked this presump-               willing to state that the injury was not work-
tion, the burden shifts to the employer to rebut           related. Because the medical testimony is
the presumption with “substantial countervail-             equivocal regarding the etiology of the injury,
ing evidence.” See James v. Pate Stevedoring               this remaining evidence is insufficient to rebut
Co., 22 BRBS 271 (1989). In the second ap-                 the § 20(a) presumption, see Phillips v. New-
peal, the BRB found as a matter of law that                port News Shipbuilding & Dry Dock Co., 22
Ingalls had failed to meet its burden and that             BRBS 94 (1988), so Bolden’s injury is work-
Bolden’s injury was work-related as a matter               related as a matter of law.
of law. Citing the ALJ’s reasons in its first
remand, Ingalls argues that the presumption                                        C.
was successfully rebutted.3 Ingalls contends                  Once Bolden has established causation, the
that these reasons constitute the substantial              burden shifts to him prove the nature and ex-
evidence necessary to rebut the presumption.               tent of his disability. Bolden establishes a pri-
We disagree.                                               ma facie case of total disability if his work in-
                                                           jury prevents return to his usual place of em-
   Bolden’s own opinion as to the ultimate                 ployment. See Mijangos, 948 F.2d at 944.
cause of his injury should not be controlling.             Testimony by Bolden and his doctors makes
He is not a medical expert, so his beliefs re-             a prima facie case for total disability, and the
garding causality are alone insufficient. More-            burden shifts to Ingalls show that Bolden is at
over, assuming arguendo that Bolden initially              most partially disabled, which can be demon-
injured his back in 1988, Ingalls would still              strated by showing realistic job alternatives
bear the burden of proving that Bolden did not             that are suitable for Bolden, given his age, ed-
aggravate that injury over the next few years              ucation, and physical restrictions. New Or-
while at work.                                             leans (Gulfwide) Stevedores v. Turner, 661
                                                           F.2d 1031, 1042 (Former 5th Cir. Nov. 1981).

                                                               Ingalls offers no reasonable job alternatives
   3
                                                           for Bolden and is thus unable to rebut the pre-
      The ALJ found that Ingalls had rebutted the          sumption of total disability. Ingalls’s conten-
presumption based on the following: (1) Bolden’s
                                                           tion that Bolden suffers from other unrelated
and Semon’s statements on Bolden’s group health
insurance forms relating the injury to a non-indus-
                                                           disabilities that also prevent him from working
trial fall in 1988; (2) Bolden’s statements to his         is irrelevant, because Bolden is still entitled to
doctors that the injury was caused by the 1988 fall;       total disability benefits so long as his work
(3) Bolden’s admission that he did not know the            injury is a cause of his disability. See Director,
cause of his injury; and (4) the doctors’ opinions         OWCP v. Vessel Repair, Inc., 168 F.3d 190
that every living activity can cause Bolden’s              (5th Cir. 1999). Even if Bolden’s vascular
condition.

                                                       5
disease is more serious than his degenerative           ployer may limit its liability for compensation
back disease, Ingalls has offered no evidence           payments for permanent disability if the fol-
to suggest that he could continue to work if he         lowing elements are present: (1) The claimant
suffered only from his back ailment. Agreeing           has a pre-existing permanent partial disability;
with the findings and conclusions of the ALJ in         (2) the pre-existing disability was manifest to
his third order, we deny review of the BRB’s            the employer; and (3) the disability that exists
decision award total disability damages in the          after the work-related injury does not result
amount (and under the terms) set forth.                 solely from the injury, but is a combination of
                                                        both that injury and the existing permanent
                       D.                               partial disability. Director, OWCP v. Cargill,
   Having established that his injury was               Inc., 709 F.2d 616, 619 (9th Cir. 1983). In-
work-related as a matter of law, Bolden may             galls contends it is eligible for § 8(f) relief be-
assess to Ingalls all reasonable and necessary          cause Bolden suffered previous work-related
medical expenses related to that injury. See            injuries to his ankle, shoulder, and wrist. Bol-
Parnell v. Capitol Hill Masonry, 11 BRBS                den, however, made a full recovery from all
532, 539 (1979). But, an employee cannot re-            prior work-related injuries save his wrist in-
ceive reimbursement for medical expenses un-            jury, which resulted in a three percent loss of
der § 907(d)(1) of the Act unless he has first          mobility (although this did not seem to impair
requested authorization before obtaining the            his ability to work). Although Ingalls was
treatment, except in cases of emergency. 20             aware of all these prior injuries, none of them
C.F.R. § 702.421.                                       combined with Bolden’s back injury to render
                                                        him total disabled. Therefore, element three is
    Ingalls was not notified of Bolden’s injury         not met with respect to these injuries, and In-
until September 11, 1995. If an employer has            galls cannot recover.
no knowledge of an injury, the employee is not
entitled to reimbursement for any money spent               In the alternative, Ingalls argues that Bol-
before notifying the employer. McQuillen v.             den suffered from neuropathy and vascular
Horne Bros., Inc., 16 BRBS 10 (1983).                   problems that, coupled with his back injury,
Therefore, Ingalls is not liable for any medical        render him totally disabled. Though it is true
expense incurred before notification, and the           that these conditions seriously and permanent-
ALJ on second remand was correct in finding             ly impair Bolden’s ability to work, Ingalls was
that Ingalls did not owe Bolden for his visits to       unaware of these disabilities until well after
Wetzel and Semon. Once Ingalls was notified             Bolden left its employ, and element two of the
in September, however, it became liable for all         test is not met. Thus, Ingalls is entitled to no
subsequent medical expenses, including                  relief under this alternative theory, so we deny
continuing visits to Fontana. The ALJ cor-              review of the BRB’s decision not to limit In-
rectly limited Bolden’s recovery to only those          galls’s liability under the Act.
visits related to his back injury, leaving treat-
ment of his unrelated vascular condition and               The petition for review is DENIED.
neuropathy to him.

                      E.
   Section 8(f) of the Act allows that an em-


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