                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT



                                      No. 00-60511



      DAVID K. WILSON,

                                                       Petitioner,

                                          versus

      ATLAS WIRELINE SERVICE; CNA INSURANCE
      COMPANIES; DIRECTOR, OFFICE OF WORKER’S
      COMPENSATION PROGRAMS, U.S. DEPARTMENT
      OF LABOR,

                                                       Respondents.


                      Petition for Review of an Order of the
                             Benefits Review Board
          _______________________________________________________
                                   June 1, 2001

Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.

REAVLEY, Circuit Judge:*

      David Wilson sought disability benefits under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. §§ 901-950 (LHWCA). He appeals the decision of the

Benefits Review Board (BRB), which affirmed the decision of an administrative law

      *
        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not be published and is not precedent except under the limited circumstances set forth in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.
judge (ALJ), who ruled that Wilson was entitled to temporary total disability benefits.

The Director of the Office of Workers’ Compensation Programs (OWCP) has filed a brief

supporting Wilson’s appeal on some issues.

       The LHWCA recognizes that the nature of a disability may be permanent or

temporary, and the extent of the disability may be total or partial. See 33 U.S.C. § 908.

One issue presented in this case is whether Wilson suffers from permanent total disability

or temporary total disability. The initial level of compensation for these two types of

disability is the same—66 2/3 percent of the claimant’s average weekly wages, to be paid

“during the continuance” of such disability. Id. § 908(a) & (b). However, the

characterization of Wilson’s disability as temporary or permanent is significant, since

only permanent total disability is subject to a statutory inflation adjustment, as the OWCP

points out. See 33 U.S.C. § 910(f). There may be other practical or legal consequences

to the characterization of Wilson’s disability as temporary or permanent as well.

       A disability is considered permanent when the “condition has continued for a

lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from

one in which recovery merely awaits a normal healing period.” Watson v. Gulf

Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968). We have recognized that the

characterization of a disability as permanent turns on the concept of maximum medical

improvement, or MMI. “An employee is considered permanently disabled when he has

any residual disability following the date of maximum medical improvement. Any

disability before reaching maximum medical improvement is thus considered temporary

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in nature.” Ledet v. Phillips Petroleum Co., 163 F.3d 901, 904-05 (5th Cir. 1998)

(footnote omitted).

       In LHWCA cases, the BRB does not have the statutory authority “to engage in a

de novo review of the evidence or to substitute its views for those of the ALJ.” Mijangos

v. Avondale Shipyards, Inc., 948 F.2d 941, 944 (5th Cir. 1991). Instead, the LHWCA

requires the BRB to accept the findings of the ALJ “unless they are not supported by

substantial evidence in the record considered as a whole or unless they are irrational.” Id.

(citing 33 U.S.C. § 921(b)(3)). Ordinarily, when we review decisions of the BRB, our

“only function is to correct errors of law and to determine if the BRB has adhered to its

proper scope of review—i.e., has the Board deferred to the ALJ’s fact-finding or has it

undertaken de novo review and substituted its views for the ALJ’s.” Avondale Shipyards,

Inc. v. Vinson, 623 F.2d 1117, 1119 n.1 (5th Cir. 1980). In conducting our review, we

must independently examine the record to determine whether the ALJ’s findings are

supported by substantial evidence. See id. We will disturb the factual findings of the

ALJ only if they are not supported by substantial evidence. See Mendoza v. Marine Pers.

Co., 46 F.3d 498, 500 (5th Cir. 1995). “Substantial evidence is that relevant

evidence—more than a scintilla but less than a preponderance—that would cause a

reasonable person to accept the fact finding.” Director, OWCP v. Ingalls Shipbuilding,

Inc., 125 F.3d 303, 305 (5th Cir. 1997).

       Ordinarily we would proceed to review the legal conclusions and factual findings

reached below under the appropriate standard of review. In this case, however, such

                                             3
review cannot proceed in the normal straightforward fashion because we are unable to

determine what the ALJ held on the issue of whether Wilson was entitled to temporary or

permanent total disability.

       On the one hand, the ALJ appears to find that Wilson’s physical and mental

impairments, in combination, render him totally disabled, and that since the mental

impairments had not reached MMI, Wilson was only entitled to temporary permanent

disability. In support of this reading of the ALJ’s decision, the ALJ awarded only

temporary total disability compensation at the end of his decision and order, and at the

end of his order on the motion for reconsideration.

       If the ALJ believed that the physical back injury alone rendered Wilson

permanently totally disabled, there would have been no reason for the ALJ’s lengthy

discussion of Wilson’s mental impairments, whether those impairments were permanent,

and whether those impairments contributed to Wilson’s disability. For example, the ALJ

noted Wilson’s own testimony that “he could not return to [his former] job today because

of his physical and emotional condition,” and Wilson’s contention that “he is

permanently and totally disabled from any and all gainful employment due to his physical

and psychological injuries.” Decision and Order at 6, 26 (emphasis added). The ALJ

noted the testimony of Ms. Thoms that Wilson “was not able to engage in meaningful

work relationships with his Employer or with other co-workers because of his intense

anger that could be triggered at any time or any moment.” Id. at 15. The ALJ discussed

her testimony that Wilson was unable “from a psychological standpoint, to return to any

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gainful employment and has not reached maximum medical improvement. She further

noted that she could not opine when, or if, Claimant will ever reach maximum medical

improvement.” Id. at 16. The ALJ similarly noted Dr. Kamp’s opinion, regarding

Wilson’s psychological problems, that Wilson “was not currently able to work in any

capacity because his degree of symptomatology was still significant and would worsen if

he attempted to return to work,” but that Kamp “could not state that Claimant is

permanently disabled from his psychiatric illness and did not know when Claimant may

be able to return to work.” Id. at 19. The ALJ likewise noted Dr. Maggio’s opinion that

if Wilson “continued taking medication and employing psychotherapy, he would

eventually find employment commensurate with his psychological factors and physical

limitations.” Id. at 20. Dr. Maggio went so far as to opine that it would be in Wilson’s

“best interest to return to work if a very tailored rehabilitation plan was used in

conjunction with his medical and psychological problems.” Id. Maggio saw no

psychiatric reason why Wilson could not return to work if an appropriate position could

be found. Id. at 21. The ALJ noted that Dr. Stokes, one of the vocational experts,

testified that there were a number of jobs Wilson could perform assuming that Wilson

“had only a temporary psychiatric disability,” id. at 22, and that Wilson might be able to

work in the future, id. at 36. The ALJ further noted that Mr. Carlisle, the other vocational

expert, concluded that Wilson “is not presently capable of engaging in competitive

employment due to his physical and psychological disabilities,” id. at 23 (emphasis



                                              5
added), but that Wilson could work in the future if his physical and psychological

conditions improved, id. at 36.

       The ALJ concluded, consistently with the above-described testimony:

       I credit equally the testimony and opinions of Ms. Thoms, Dr. Kamp and
       Dr. Maggio, each of whom was well-reasoned and persuasive in
       establishing that Claimant currently suffers from a psychological condition,
       namely depression, and has not reached MMI with respect to that condition.
       Thus, I find and conclude that Claimant has not reached MMI with respect
       to his psychological condition. Thus, Claimant remains temporarily and
       totally disabled.

Id. at 34. In his order on the motion for reconsideration, the ALJ explained:

       As noted hereinabove, where an employee suffered both physical and
       emotional trauma and needed psychological treatment before he could
       return to work, he was not yet at the point of maximum medical
       improvement and was still considered temporarily and totally disabled due
       to the psychological effects of his injury. . . . As discussed in the Original
       Decision and Order, I equally credit the testimony and opinions of Ms.
       Thoms and Drs. Maggio and Kamp, each of which was well-reasoned and
       persuasive in establishing that Claimant’s psychological condition has not
       reached a period of stabilization that will allow him to return to gainful
       employment. Because Claimant has continued treatment for his
       psychological condition, I find that he has not reached maximum medical
       improvement. Thus, Claimant’s disability status remains temporary total
       until such time his psychological condition reaches maximum medical
       improvement.

Order at 4-5 (emphasis added).

       On the other hand, the ALJ’s decision might be read to find, as a factual matter,

that the physical back injury alone rendered Wilson permanently totally disabled. In the

decision and order the ALJ states that “I find and conclude that Claimant reached

maximum medical improvement on May 19, 1997, with permanent restrictions as noted


                                              6
hereinabove, for the physical condition of his back.” Decision and order at 32. He then

states that the back injury, by itself, rendered Wilson entitled to temporary total disability

until the date this injury reached MMI, and at least implies that after MMI the back

injury, by itself, entitled Wilson to permanent total disability:

       Accordingly, based solely on his physical injury, I find that Claimant was
       temporarily and totally disabled from December 27, 1988, the date of
       injury, through January 22, 1990, the date on which he returned to work
       with High Tech Automotive. Once his employment with High Tech
       Automotive ended due to the fact that Claimant was unable to perform his
       duties due to his back condition, Claimant resumed temporary total
       disability status. Therefore, Claimant is entitled to temporary total
       disability compensation benefits from June 17, 1990, the date on which he
       resumed temporary total disability status, through May 19, 1997, the date
       he reached MMI.

Id. at 32-33 (emphasis added). The ALJ goes on to state explicitly that “I find that

Claimant is permanently disabled, thus entitling him to permanent total disability

compensation benefits from May 19, 1997 to present and continuing thereafter.” Id. at

36. Finally, in discussing the employer’s request for relief under § 8(f) of the LHWCA,

33 U.S.C. § 908(f), the ALJ states that “I find that Claimant’s total and permanent

disability that occurred after his December 27, 1988 work-related accident is due solely

to the1988 accident.” Decision and order at 43.

       The BRB did not note any confusion with the ALJ’s ruling that so confounds us.

       If the ALJ held that, based on Wilson’s physical back injury alone, he was

permanently and totally disabled, then we agree with Wilson and the OWCP that Wilson

should not be deemed temporarily and totally disabled simply because his additional


                                              7
psychological disability is temporary. If Wilson is permanently and totally disabled due

to the physical back injury standing alone, he should not be penalized because he also

suffers from a psychological injury. If the ALJ awarded the lesser relief of temporary

disability based on the temporary psychological injury, despite finding that the physical

back injury rendered Wilson permanently and totally disabled, then the ALJ legally erred.

       If, on the other hand, the ALJ found that Wilson’s physical back injury and

psychological impairments, only in combination, rendered him totally disabled, and that

the psychological impairments were temporary, then the ALJ did not legally err in

concluding that such circumstances would entitle Wilson to temporary total disability

benefits.

       As the orders stand now, they are not merely ambiguous; they are in flat

contradiction. We simply cannot tell what the ALJ held, factually and legally, on the

issue of permanent versus temporary disability. While reluctant to do so given the age of

this case, we conclude that the appropriate disposition is to remand the case for

clarification.

       A separate but related issue is whether the ALJ erred in concluding that Wilson’s

back injury reached MMI in May of 1997. While there was conflicting evidence on this

issue, we hold that substantial evidence, in the form of testimony from Wilson’s surgeon

and principal treating physician, Dr. Lowry, and other evidence, would support a finding

that Wilson reached MMI with respect to his back condition in May of 1997. We

recognize, however, that the significance of when Wilson’s back injury reached MMI

                                             8
may turn on the issue, discussed above, on which we find a remand necessary. If the ALJ

clarifies his ruling to find that Wilson was not then totally disabled because of his back

injury alone, the date that Wilson attained MMI with his back may not have any legal

consequence.

       To the extent that Wilson and the OWCP argue that we should in effect reverse

and render a judgment in favor of Wilson, by holding that he is entitled to permanent total

disability benefits from 1989 or some other date, based on his back injury alone, we

reject this argument. We cannot say that the evidence is so overwhelming in favor of

such a finding that any other result reached by the ALJ, in considering the substantial and

sometimes conflicting evidence presented in this record, would not be supported by

substantial evidence.

       We have reviewed Wilson’s other arguments, and must reject them under our

limited review of the administrative decision.

       We remand this case for further proceedings consistent with this opinion.

       REMANDED.




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