Ceres Gulf Inc v. DOWCP

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 7, 1999
• Docket: 98-60576
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60576

CERES GULF, INC.

Plaintiff-Appellant,

v.

LONNIE HOUSER, SR.

Defendant-Appellee,

Appeal from the Benefits Review Board (97-1522)

October 6, 1999

Before JONES, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Ceres Gulf, Inc. (“Ceres”) appeals the Benefits Review

Board’s (“Board”) decision affirming (1) the Administrative Law

Judge’s (“ALJ”) award of permanent disability benefits and

attorney’s fees under the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-50 (1998); (2) the

ALJ’s denial of section 8(f) relief under the LHWCA; and (3) the

District Director’s award of an attorney’s fee. After hearing oral

arguments and reading the briefs and administrative decisions, this

court finds that there is substantial evidence supporting the

Board’s decision. This court, therefore, affirms.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. This court reviews a decision of the Board regarding an

award of benefits under the LHWCA using the same standard of review

as the Board, namely whether the award is supported by substantial

evidence and is in accordance with the law. New Thoughts Fishing

Co. v. Chilton, 118 F.3d 1028, 1030 (5th Cir. 1997).

The record shows that Lonnie Houser, Sr. (“Houser”)

established a prima facie case that he aggravated a pre-existing

condition while working for Ceres on February 24, 1995. As a

result, Houser is entitled to the section 20(a) presumption that

the injury was causally related to his working conditions. Ceres

has failed to rebut this presumption. Although Ceres relies

heavily on the medical opinion of Dr. Nutik, Dr. Nutik’s testimony

is in fact consistent with the other medical doctors who opined

that Houser aggravated a pre-existing cervical spine condition on

February 24, 1995. Given the deference this court gives to the

ALJ’s credibility decisions, this court affirms the granting of

section 20(a) compensation.

Furthermore, this court finds that Ceres is not entitled

to section 8(f) relief since Houser did not have a pre-existing

permanent partial disability within the meaning of section 8(f).

As a result, this court does not reach the other issues raised by

Ceres with respect to section 8(f) relief. Since this court also

finds that the attorney’s fees were reasonable, this court affirms.

AFFIRMED.