                 UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                              No. 92-4077



INGALLS SHIPBUILDING, INC.,
                                                        Petitioner,


                                versus


DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, U.S.
DEPARMENT OF LABOR, and
ROBERT L. BAKER,
                                                        Respondents.

                           CONSOLIDATED WITH

                           _________________

                              No. 92-4078
                           _________________


INGALLS SHIPBUILDING, INC.,
                                                         Petitioner,

                                versus
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR and
TIMOTHY BUCKLEY,
                                                         Respondents.




               On Petitions for Review of an Order
                   of the Benefits Review Board
            (BRB #90 1756 (OWCP #6 109791) & 90-2049)

                       (     April 6, 1993   )
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

POLITZ, Chief Judge:*

       In these consolidated proceedings, Ingalls Shipbuilding, Inc.

petitions      for     review   of    orders      of    the   Benefits   Review    Board

affirming administrative law judge awards of medical expenses and

attorney's fees to Robert L. Baker and Timothy Buckley.                       We grant

review and affirm in part, vacate in part, and remand.



                                       Background

       Baker and Buckley, former Ingalls employees, filed claims for

hearing loss under the Longshore and Harbor Workers' Compensation

Act1 (LHWCA or Act).              Baker's claim was based on a test by

audiologist      James     Wold      who   found       impairment   that   might   have

entitled Baker to disability compensation.                      Baker, however, was

re-examined at Ingall's request by Jim McDill, an audiologist, and

Philip Gilchrist, an otolaryngologist.2 McDill and Gilchrist found

mild       bilateral    high    frequency        sensorineural      hearing   loss   of

work-related origin but no functional impairment as defined by the


       *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
       1
               33 U.S.C. § 901        et seq.

       2
          An   audiologist      is a hearing specialist.        An
otolaryngologist is a medical doctor, specializing in disorders of
the ear, nose, and throat.


                                             2
American         Medical      Association       Guides.          Crediting       the

McDill-Gilchrist findings, the ALJ denied disability compensation

but ordered Ingalls to pay medical expenses, past and future,

including the cost of future hearing examinations.                    Because Baker

prevailed       on   his   claim     for   medical   expenses   the    ALJ   awarded

attorney's fees.

          Buckley's claim was precipitated by an in-house audiogram,

which found some hearing loss.              An examination at Ingalls' request

by McDill and otolaryngologist John Lingo found moderate bilateral

high frequency sensorineural hearing loss of work-related origin

but       no   functional    impairment.          The   ALJ   denied    disability

compensation         but   awarded    Buckley   future    medical     expenses   and

attorney's fees.

          Ingalls appealed both decisions to the Benefits Review Board,

which affirmed. It timely petitioned this court for review and the

two cases were consolidated.



                                       Analysis

          Our review of Board decisions is limited.             We inquire only

whether the Board "correctly concluded that the ALJ's order was

supported by substantial evidence on the record as a whole and is

in accordance with the law."3               Substantial evidence is evidence

that "a reasonable mind might accept as adequate to support a


      3
          Avondale Industries, Inc. v. Director, Office of Workers'
Compensation Programs, 977 F.2d 186, 189 (5th Cir. 1992) (internal
quotation omitted).


                                            3
conclusion."4       In our review we typically defer to the ALJ's

credibility choices between conflicting witnesses and evidence.

Applying this standard, we reject Ingalls' challenge to the ALJ's

application of the law but conclude that the awards of medical

expenses are unsupported by the evidence, with the exceptions noted

herein.

     Ingalls contends that the claimants are not entitled to

medical   expenses     because     the   ALJ   found   that     they   lacked   an

impairment as defined by section 8(c)(13) of the LHWCA.                  Added to

the Act in 1984, section 8(c)(13)(E) provides, "[d]eterminations of

loss of hearing shall be made in accordance with the guides for the

evaluation of permanent impairment as promulgated and modified from

time to time by the American Medical Association."5                  According to

the reports credited by the ALJ, neither Baker nor Buckley suffered

hearing loss severe enough to constitute an impairment under the

AMA Guides.       As the ALJ held -- no impairment means no disability

compensation.       Ingalls contends that it also means no medical

benefits.       We do not agree.

     Congress inserted the provision requiring use of the AMA

Guides    to    measure   hearing   loss     in   section   8   of     the   LHWCA.

Section 8 addresses disability compensation.            Medical benefits are

covered by section 7, which entitles a claimant to reasonable and

    4
          Id., quoting NLRB v. Columbian Enameling & Stamping Co.,
Inc., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)
(internal quotations omitted).

     5
               33 U.S.C. § 908(c)(13)(E).


                                         4
necessary medical services if he suffers a work-related injury.6

Section 2(2) defines "injury" as "accidental injury or death

arising     out    of    and   in   the    course       of   employment,   and    such

occupational disease or infection as arises naturally out of such

employment    or    as    naturally       or       unavoidably   results   from   such

accidental injury . . . ."7                    Courts have long construed this

definition to mean "something go[ne] wrong with the human frame."8

Had Congress intended to limit hearing loss injuries for which

medical benefits were available to those satisfying the AMA Guides

for permanent impairment, it would have so stated either in the

definitions or section 7, the medical benefits section. Rather, it

inserted the AMA Guides in section 8.                   By so doing, it obviously

intended an application only to claims governed by section 8, i.e.,

claims for disability compensation.                   We so hold.

        Ingalls'    evidentiary      objection,         however,    is   well   taken.

Buckley presented no evidence of medical expenses incurred in the

past nor of medical treatment necessary in the future.                     He merely

        6
          33 U.S.C. § 907; Dupre v. Cape Romain Contractors, 23
BRBS 86, 1989 WL 245257 (Ben.Rev.Bd. Nov. 29, 1989).      Medical
benefits can take the form of services provided at the employer's
expense or monies paid by the employer to the employee in
reimbursement for medical expenses incurred. Lazarus v. Chevron
USA, Inc., 958 F.2d 1297 (5th Cir. 1992).

        7
             33 U.S.C. § 902(2).

    8
          Wheatley v. Adler, 407 F.2d 307, 311 n.6 (D.C. Cir. 1968)
(en banc); see Romeike v. Kaiser Shipyards, 22 BRBS 57, 1989 WL
245309 (Ben.Rev.Bd. Feb. 24, 1989) (distinguishing between injury
and impairment); Crawford v. Director, OWCP, 932 F.2d 152 (2d Cir.
1991) (same).


                                               5
points out that he asked to see a specialist of his choice for

testing; however, he did not provide evidence that he had visited

a   specialist   and    thereby   incurred   recoverable    expenses.9

Accordingly, there is no evidentiary basis for the ALJ's award of

medical benefits and the award of same is vacated.10       The parties

agree that claims for medical benefits do not prescribe.11     Buckley

may file a claim for medical benefits if and when medical treatment

becomes necessary.

     Attorney's fees are payable under section 28(a) of the Act

only if claimant's attorney successfully prosecutes a claim.12

Today's decision nullifies the only heretofore successful element

of Buckley's claim.    The award of attorney's fees, therefore, must

be vacated.

     Baker presented no evidence of medical expenses incurred

except for his initial evaluation by Wold.     His only evidence of

     9
          Buckley need be mindful that if he visits a specialist
for testing now, to obtain reimbursement he must justify the need
for testing in the wake of the McDill-Lingo test.

     10
          Cf. Simeon v. T. Smith & Son, Inc., 852 F.2d 1421 (5th
Cir. 1988) (remittitur of $30,000 jury award for future medical
expenses ordered on appeal where only record evidence regarding
future medical expenses was testimony that plaintiff might need a
$10,000 operation), cert. denied, 490 U.S. 1106 (1989).

     11
          Strachan Shipping Co. v. Hollis, 460 F.2d 1108 (5th
Cir.), cert. denied, 409 U.S. 887 (1972), overruled on other
grounds, Intercounty Construction Corp. v. Walter, 422 U.S. 1, 95
S.Ct. 2016, 44 L.Ed.2d 643 (1975); Mayfield v. Atlantic & Gulf
Stevedores, 16 BRBS 228 (Ben.Rev.Bd. May 15, 1984).

     12
          33 U.S.C. § 928(a).


                                  6
potential   future    medical   expenses   was   Wold's   report,   which

recommended hearing re-evaluations at least annually and advised

that Baker was "a candidate for amplification."             Gilchrist's

report, however, stated that a hearing aid would not help.            We

cannot discern with assurance from the ALJ's order which portions,

if any, of the Wold report he credited.           Accordingly, we must

vacate the award of medical benefits except insofar as it requires

Ingalls to reimburse Baker for Wold's evaluation. Further, we must

remand for proper findings on the existing record about which

future medical services are reasonably necessary.13

     We find no specific award of attorney's fees for Baker's claim

in the record.       On remand a fee award tailored to his limited

success should be set.14

     The petitions for review are GRANTED.           The order of the

Benefits Review Board in Buckley's case is VACATED.        The order of

the Benefits Review Board in Baker's case is AFFIRMED in part,

VACATED in part, and REMANDED.




     13
          Cf.   Romeike, supra (testimony of two physicians that
monitoring of work-related condition is necessary establishes a
prima facie case for compensable medical treatment); Lazarus v.
Chevron, supra (to make an award of future medical expenses
enforceable, the ALJ should describe the expenses which qualify).

     14
          Farrar v. Hobby, 506 U.S. _____, 113 S.Ct. 566, 121
L.Ed.2d 494 (1992); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983); George Hyman Const. Co. v. Brooks, 963
F.2d 1532 (D.C. Cir. 1992).


                                    7
