     Case: 12-60222   Document: 00512479484     Page: 1   Date Filed: 12/20/2013




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

                                                                  FILED
                                                              December 20, 2013

                                 No. 12-60222                   Lyle W. Cayce
                                                                     Clerk

ISLAND OPERATING COMPANY, INCORPORATED; LOUISIANA
WORKERS’ COMPENSATION CORPORATION,

                                           Petitioners,
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; MARTIN B. TAYLOR, JR.,

                                           Respondents.



                  Petition for Review from an Administrative
                    Decision of the Benefits Review Board


Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Island Operating Company and its carrier, the Louisiana Workers’
Compensation Corporation (collectively, Island) have petitioned this court to
review a modification of a benefits award under the Longshore and Harbor
Workers’ Compensation Act (LHWC Act). Island asks that we reverse the
modified decision because the original judgment was not eligible for modification
or alternatively, because the facts do not support the modification. We affirm.
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                                 No. 12-60222
                                        I
      In January 2006, Martin B. Taylor, Jr. (Taylor) was working offshore for
Island on an oil production platform when his right knee popped as he was
crossing the deck. Over the next month, Island sent Taylor to two different
physicians and an orthopaedic surgeon, all of whom pronounced that he would
progress back to full-time work. It was during this time that Taylor began to
experience pain in his left knee as well. Taylor performed light duty work for
Island until late May when his employment was terminated. Following his
termination, Taylor continued to experience pain in both knees so he consulted
another orthopaedic surgeon, Dr. John Fairbanks, who performed surgery on
Taylor’s knees. Despite the surgery, Taylor continued to suffer from pain in both
knees.
      In May 2006, Taylor filed a claim for benefits under the LHWC Act. The
administrative law judge (ALJ) initially denied the claim, finding that Taylor’s
condition had been caused by preexisting arthritis and not a traumatic work-
related incident. The Benefits Review Board (BRB) reversed and remanded,
explaining that proof of a traumatic injury was unnecessary because preexisting
conditions that are aggravated by a claimant’s work are covered by the LHWC
Act. The ALJ then awarded Taylor temporary partial disability benefits and
temporary total disability benefits for two periods prior to September 16,
2006—the date at which the ALJ determined Taylor’s condition had reached
“maximum medical improvement” (MMI). The ALJ explained that except for the
period from August 9, 2006 to September 16, 2006 when Dr. Fairbanks took
Taylor off work, Taylor was not completely disabled because Island had
established that suitable alternative employment was available.
      In January 2010—within the mandated one-year period—Taylor filed a
modification application to seek benefits for permanent partial disability. The
issues are whether, and to what extent, Taylor’s knees were impaired after

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                                         No. 12-60222
reaching MMI on September 16, 2006. Taylor submitted reports from two
physicians, Dr. Fairbanks and Dr. Murphy, which both found that Taylor had
a 25-percent permanent disability in each knee. On this basis, the ALJ granted
Taylor’s modification petition.               Though Island argued—and the ALJ
acknowledged—that “the impairment ratings used as evidence . . . to establish
his modification were arguably available at the time of the original hearing,” the
ALJ concluded that “a modification can be granted based upon previously
available evidence.” Therefore, the ALJ modified the previous judgment to
include permanent partial disability benefits commensurate with a 25-percent
impairment of each knee to commence on September 16, 2006.
       Island appealed this decision to the BRB, which affirmed. Explaining that
the modification provision was intended to replace finality with accuracy, it held
that the ALJ had properly modified the award based on a mistake, despite the
fact that the evidence Taylor presented in support was available prior to the
initial hearing. Island now files a petition for review.
                                                II
       We review appeals from BRB decisions to correct errors of law and to
determine whether the BRB properly deferred to the ALJ’s factfinding.1 Because
the BRB’s conclusion that the ALJ correctly applied § 22 to reopen Taylor’s claim
is a question of law, it is subject to this court’s de novo review.2
       As to disputed issues of fact, like the BRB, “[w]e may not substitute our
judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may
only determine whether evidence exists to support the ALJ’s findings.”3
Accordingly, we examine “whether the BRB properly concluded that the ALJ’s

       1
           Ceres Marine Terminal v. Hinton, 243 F.3d 222, 224 (5th Cir. 2001).
       2
           Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001).
       3
        SGS Control Servs. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of Labor,
86 F.3d 438, 440 (5th Cir. 1996).

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                                        No. 12-60222
factual findings were supported by substantial evidence on the record as a
whole.”4 Substantial evidence is that which “provides a substantial basis of fact
from which the fact in issue can be reasonably inferred.”5 The BRB and this
court will not disturb an ALJ’s factual findings unless reasonable minds would
not accept the findings as “adequate to support a conclusion.”6
                                              III
       Island first argues that Taylor’s claim was never eligible for modification
because he never satisfied the legal predicate necessary to invoke this action.
Island argues in the alternative that even if reopening the claim was
appropriate, the modification decision was not supported by the facts. We
address each challenge in turn.
                                               A
       The threshold issue is whether Taylor has established sufficient grounds
to invoke a modification of a prior judgment under the LHWC Act.7 Section 22
of the Act provides, in relevant part:
                Upon his own initiative, or upon the application of any
                party in interest . . . on the ground of a change in
                conditions or because of a mistake in a determination of
                fact by the [ALJ],8 the [ALJ] may, at any time prior to
                one year after the date of the last payment of
                compensation, whether or not a compensation order has
                been issued, or at any time prior to one year after the
                rejection of a claim, review a compensation case . . .

       4
           Pool, 274 F.3d at 178 (internal quotation marks omitted).
       5
         Avondale Indus., Inc. v. Dir., Office of Workers’ Comp. Programs, 977 F.2d 186, 189
(5th Cir. 1992) (internal quotation marks omitted).
       6
           Id. (internal quotation marks omitted).
       7
           33 U.S.C. §§ 901-950.
       8
       While § 22 under the Act specifically refers to the “deputy commissioner,” the 1972
Amendments transferred the hearing functions formerly exercised by those officials to
administrative law judges. Id. § 919(d).

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                                     No. 12-60222
                [and] issue a new compensation order which may
                terminate, continue, reinstate, increase, or decrease
                such compensation, or award compensation.9
      By its terms, the statute provides two avenues for modification of a prior
judgment: (1) a change in conditions, or (2) a mistake in a determination of fact
by the ALJ. The sole basis of this petition concerns what constitutes “a mistake
in a determination of fact” such that a prior judgment is eligible for modification.
      Island urges that a mistake of fact can serve as grounds for modification
only if it is based on completely new and previously unattainable evidence. To
hold otherwise, it argues, would permit claimants to relitigate claims under the
guise of § 22, which would compromise judicial finality. Because the testimony
of both physicians was available at the time of Taylor’s original hearing, Island
asserts that this evidence cannot support a mistake and therefore, that
modification of the judgment is not available.
      The Supreme Court, however, has expressly permitted modification under
these circumstances. In Banks v. Chicago Grain Trimmers Ass’n,10 the Court
concluded that the language “a mistake in a determination of fact” was intended
to have a broad scope.11 In Banks, a death-benefits claim was initially denied
because the survivor-claimant had failed to prove a causal connection between
the worker’s fatal fall at home and a work-connected injury.12 Several months
later, the survivor filed a second claim after discovering an eyewitness to a work-
connected injury suffered by the decedent on the same day as his fall.13 While
the court of appeals held this second claim was barred by res judicata, the Court

      9
          Id. § 922.
      10
           390 U.S. 459 (1968).
      11
           Banks, 390 U.S. at 464.
      12
           Id. at 460.
      13
           Id. at 461.

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                                        No. 12-60222
held that the purpose of the amendment to § 22 was to displace finality “in order
to render justice under the act.”14 The Court held that the second claim,
challenging the factual finding that the decedent’s fall did not result from a
work-related injury, came within the scope of § 22.15
      Significantly, the Court did not discuss whether the survivor-claimant
could have discovered the eyewitness before the first hearing. Rather, it upheld
the modification award because “nothing in [§ 22’s] legislative history []
support[ed] the [] argument that a ‘determination of fact’ means only some
determinations of fact and not others.”16 Therefore, a “determination of fact”
could include facts which may have been known to the claimant since the
“purpose of this amendment was to broaden the grounds on which [an ALJ] can
modify an award.”17
      The Court revisited § 22 in O’Keeffe v. Aerojet-General Shipyards, Inc.,18
in which a disability claim was initially denied for failure to prove that the
condition was work-related.19 Based on the testimony of two physicians, the
claimant reopened his case under § 22 to show that contrary to the initial
determination, his condition had “been materially aggravated and hastened by
the circumstances of [his] employment.”20 The lower court denied modification
because without “new” evidence, § 22 did not permit an ALJ “to receive



      14
           See id. at 461, 464 (internal quotation marks omitted).
      15
           Id. at 465.
      16
           Id.
      17
           Id. at 464 (internal quotation marks omitted).
      18
           404 U.S. 254 (1971) (per curiam).
      19
           O’Keeffe, 404 U.S. at 254.
      20
           Id. (internal quotation marks omitted).

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                                        No. 12-60222
additional but cumulative evidence and change his mind.”21 The Court, however,
upheld the modification award because “[n]either the wording of [§ 22] nor its
legislative history supports this narrowly technical and impractical
construction.”22 “[O]n its face, the section permits a reopening within one year
because of a mistake in a determination of fact,” and “[t]here is no limitation to
particular factual errors, or to cases involving new evidence.”23
      Island asserts, however, that even if § 22 was intended to favor justice over
finality, the Court’s interpretation ignores finality altogether. Despite the one-
year limitations period, a claimant can theoretically create endless litigation by
continuously moving to modify an award within a year of the previous
modification. While we acknowledge Island’s concerns, the remedy lies with
Congress and not with this court. In Metropolitan Stevedore Co. v. Rambo,24 the
petitioner similarly argued that to equate a change in wage-earning capacity to
a “change in conditions” under § 22 would “flood” courts with litigation “because
parties [would] request modification every time an employee’s wages change[d]
or the economy [took] a turn.”25 But the Court held that such an argument was
“better directed at Congress” rather “than at the courts.”26 Likewise, any
narrowing of the mistake-modification language must be enacted through
legislative channels.




      21
           Id. at 255 (internal quotation marks omitted).
      22
           Id. (internal quotation marks omitted).
      23
           Id. (emphasis added) (internal quotation marks omitted).
      24
           515 U.S. 291 (1995).
      25
           Rambo, 515 U.S. at 300.
      26
           Id.

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                                         No. 12-60222
      In sum, both Banks and O’Keeffe clearly establish that contrary to Island’s
position, mistakes of fact are not limited to newly discovered and previously
unattainable evidence. Therefore, we affirm the BRB’s decision on this basis.
                                              B
      Island next argues that even if Taylor presented a legally sufficient claim
to reopen his award, the facts do not support the modification he received. As
noted earlier, this court does not reweigh or reappraise evidence but only
determines whether evidence exists to support the ALJ’s findings.27 Here, the
ALJ granted modification on the basis of testimony from two different physicians
who had examined Taylor and reviewed his medical records. Both physicians
concurred that Taylor had a 25-percent impairment rating in both knees.
Accordingly, there was evidence to support the ALJ’s finding, and the BRB
correctly affirmed the modification of Taylor’s award to include permanent
partial benefits.28
                                     *        *         *
      For the foregoing reasons, the BRB’s decision is AFFIRMED.




      27
           Supra notes 3-6 and accompanying text.
      28
          See SGS Control Servs. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of
Labor, 86 F.3d 438, 443-44 (5th Cir. 1996) (affirming the grant of permanent disability
benefits because the ALJ had substantial factual evidence to support its conclusion).

                                              8
