UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-60469 Summary Calendar

Louisiana Insurance Guaranty Association; Baton Rouge Marine Contractors, Inc.,

Petitioners,

VERSUS

William Parker; Director, Office of Worker’s Compensation Programs, United States Department of Labor,

Respondents.

Petition to Review a Decision of the Benefits Review Board (99-0410) February 27, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

Per Curiam:*

This case involves the appeal of an administrative ruling

under the Longshore and Harbor Workers’ Compensation Act (LHWCA),

– 950 (2001). Baton Rouge Marine Contractors,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 Inc. (BRMC), appeals from the Benefits Review Board’s (“BRB” or

“Board”) decision finding it liable for William Parker’s asbestos-

related disability. BRMC claims that the Board’s decision was in

error because (1) it was not the “responsible employer” for

Parker’s disability, and (2) Parker did not make a proper claim for

medical expenses. We affirm the BRB’s decision.

I.

Before his retirement in 1976, William Parker worked as a

longshoreman for several employers at the Port of Baton Rouge,

including BRMC and Louisiana Stevedores, Inc. His employers

routinely required him to handle asbestos in its powdered form. In

1994, doctors diagnosed Mr. Parker with pulmonary asbestosis.

Parker then brought this worker’s compensation claim against BRMC,

his last port employer. The administrative law judge (ALJ) found

that BRMC was the responsible employer and that Parker was entitled

to recover for his full disability. BRMC’s appeals to the BRB were

denied. Although it is clear that Mr. Parker handled asbestos

while working for both BRMC and Louisiana Stevedores, the parties

dispute whether he last handled the substance while working for

BRMC or Louisiana Stevedores. BRMC also claims that even if it was

the responsible employer, Parker is not entitled to recover medical

expenses because he made no claim for medical expenses and failed

to offer proof of the amount of these expenses.

2 II.

Section 921(c) of the LHWCA affords this court jurisdiction to

review decisions of the BRB, but our review is limited to

determining whether the BRB 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.” Avondale Indus., Inc. v.

Director, OWCP,

(5th Cir. 1992). “Substantial

evidence is evidence that provides ‘a substantial basis of fact

from which the fact in issue can be reasonably inferred.’”

(quoting NLRB v. Columbian Enameling & Stamping Co.,

(1939)).

III.

The LHWCA employs the “last exposure” rule of causation.

Under the last exposure rule, the “responsible employer” is the

last employer that subjected the claimant to asbestos before the

claimant knew or should have known of the relationship between his

employment and his asbestos-related illness. See Fulks v. Avondale

Shipyards, Inc.,

(5th Cir. 1981) (citing

Travelers Insurance Company v. Cardillo,

(2d Cir.),

cert. denied,

(1955)). The rule is designed to

simplify proof of causation where the claimant was exposed to a

toxic substance while working for several different employers. See

Avondale Indus.,

. Since the ALJ found that Parker

made a prima facie case against BRMC, the burden shifted to BRMC to

show that Parker was exposed to asbestos while performing work

3 covered under the LHWCA for a subsequent employer.

BRMC contends that there is not sufficient evidence that it

was the responsible employer because it proved that Parker was last

exposed to asbestos while employed at Louisiana Stevedores. BRMC

submitted evidence that its employees ceased unloading asbestos on

June 22, 1973, because all of the asbestos shipped to Baton Rouge

after that date was stored at a government warehouse. BRMC also

notes that Parker admitted to handling asbestos while working for

Louisiana Stevedores in 1974. Although Parker returned to work for

BRMC after working for Louisiana Stevedores, BRMC submits that

there is no evidence that he handled asbestos for BRMC after 1973.

Despite BRMC’s evidence that its employees no longer unloaded

asbestos after 1973, there is still sufficient evidence that Parker

was last exposed to asbestos while working at BRMC. As noted in

the BRB’s first opinion in this case, BRMC continued to handle

asbestos shipped by truck to warehouses even after its employees

stopped unloading it. Thus, regardless of who unloaded the

asbestos at the port, there is sufficient evidence that Parker was

exposed to it even after he worked for Louisiana Stevedores. BRMC

therefore has not carried its burden of demonstrating that it was

not the responsible employer.

IV.

Section 907(a) of the LHWCA requires employers to pay its

employees’ medical expenses from work-related injuries: “The

employer shall furnish such medical, surgical, and other attendance

4 or treatment, nurse and hospital service, medicine, crutches, and

apparatus, for such period as the nature of the injury or the

process of recovery may require.” The Act also requires employers

to reimburse employees for any out-of-pocket medical expenses when

the employer wrongfully refuses the employee’s request for medical

treatment.

(d)(1)(A) (“An employee shall not be

entitled to recover any amount expended by him for medical or other

treatment services unless – (A) the employer shall have refused or

neglected a request to furnish such services . . . .”). BRMC

argues that even if it is the responsible employer, Parker was not

entitled to recover medical expenses because he failed to make a

claim for medical expenses and because he submitted no medical

bills to prove the amount of his expenses. Additionally, BRMC

argues that the ALJ’s order that it pay Parker’s reasonable medical

expenses is in error because it does not specify the amount owed.

Contrary to BRMC’s contention, Parker clearly requested §

907(a) medical benefits in his claim dated July 9, 1996. Mr.

Parker’s attorney addressed his claim to BRMC and copied the

Department of Labor. The claim letter reads in pertinent part:

We represent the interests of Mr. Parker in his claim for benefits under the Longshore & Harbor Workers’ Compensation Act. Enclosed is our POA for you file. Also enclosed is a copy of correspondence, the LS-203 and attendant medical reports filed with the USDOL. The claimant retired from employment, with his last covered exposure to injurious stimuli with your company in 1976. We are requesting authorization for treatment by the Claimant’s choice of physicians, Drs. Jackson and Nulti, per

.

5 We therefore find sufficient evidence in the administrative record

that Mr. Parker made a claim for medical expenses.

As to the proof of Parker’s medical expenses, BRMC’s brief

cites no authority for the propositions that a LHWCA claimant must

provide invoices of his medical expenses or that an ALJ’s order to

pay reasonable medical expenses include an exact dollar amount.

BRMC has therefore waived these arguments on appeal. United States

v. Martinez,

(5th Cir. 2001) (“Generally

speaking, a defendant waives an issue if he fails to adequately

brief it.”); accord Fed. R. App. P. 28(a)(9)(A) (stating that an

appellant’s brief must include its “contentions and the reasons for

them, with citations to the authorities and parts of the record on

which the appellant relies”). Furthermore, our review of the

administrative record reveals sufficient factual support for the

BRB’s decision to affirm the ALJ’s award of reasonable medical

expenses relating to Parker’s emergency medical treatment at Our

Lady of the Lake Hospital and his examinations by Dr. Hackley and

Dr. Gomes. The ALJ reviewed extensive testimony from Parker’s

treating physicians about the nature, extent, and likely causes of

Parker’s pulmonary asbestosis. The ALJ also reviewed Parker’s

numerous medical reports before determining that there was a

sufficient nexus between Parker’s treatments at Our Lady of the

Lake and by Drs. Hackley and Gomes to justify an award of

reasonable medical expenses relating to those treatments. Although

the ALJ did not award Parker a particular dollar amount for his

6 medical expenses, as the BRB observed, LHWCA’s medical care

regulations govern the procedures for disputing the amount of these

medical expenses. See

– 702.417 (2001).

V.

We therefore find sufficient evidence in the administrative

record to support the BRB’s ruling that BRMC is the responsible

employer for Parker’s injuries. We also find sufficient evidence

that Parker properly requested and proved his right to payment or

reimbursement of all medical costs incurred. Accordingly, the

decision of the Benefits Review Board opinion dated May 10, 2001 is

AFFIRMED.

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