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Pena-Garcia v. Director

United States Court of Appeals, First Circuit

March 1, 2019

LUIS PENA-GARCIA, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CALZADILLA CONSTRUCTION CORPORATION; IMS INSURANCE COMPANY OF PUERTO RICO, Respondents.

          PETITION FOR REVIEW OF A FINAL ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

          Emilio F. Soler on brief for petitioner.

          Manuel Porro-Vizcarra and Manuel Porro-Vizcarra Law Offices on brief for respondents Calzadilla Construction Corporation and IMS Insurance Company of Puerto Rico.

          Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This case raises the question of what is a "successful prosecution" in a claim for benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), so as to warrant an award of attorney's fees to a claimant. See 33 U.S.C. § 928.

         After suffering a disabling back injury in 1994 while working for Calzadilla Construction Corporation (Calzadilla) in Puerto Rico, Luis Peña-Garcia (Peña) sought coverage for spinal surgery. Calzadilla's insurer, IMS Insurance Company of Puerto Rico (IMS), said it would pay for such surgery in Puerto Rico, where Peña's surgeon was willing and able to perform it. Peña rejected that and said the surgery must be at Beth Israel Spine Institute in New York. Peña then filed a claim for medical compensation for surgery in New York against Calzadilla and IMS under the LHWCA. 33 U.S.C. § 901 et seq.

         An LHWCA administrative law judge (ALJ) determined that Calzadilla and IMS had never refused to pay for the surgery and rejected Peña's claim that it was necessary to perform his surgery in New York. Consequently, the ALJ later held that Peña was not entitled to attorney's fees and costs. The U.S. Department of Labor Benefits Review Board (the Board) affirmed the denial of attorney's fees and costs. Finding no error, we deny Peña's petition for review.

         I. A. Facts

         The pertinent facts are not disputed. At all relevant times, Peña lived and worked in Puerto Rico. Peña's back injury at Calzadilla left him totally and permanently disabled. Calzadilla and IMS accepted liability for Peña's injury and began paying him medical benefits even before he made the claim at issue here.

         On March 15, 2010, Peña saw an orthopedic surgeon, Dr. Luis Pio Sánchez-Caso (Dr. Sánchez), who recommended that Peña undergo a laminectomy decompression, a "complex spine reconstruction" surgery. Dr. Sánchez was willing and able to perform the surgery at San Pablo Hospital in Puerto Rico. Dr. Sánchez, though not board-certified, had post-graduate training in the area of orthopedic surgery, had performed spinal surgeries since 1998, and had previously performed the surgery that Peña needed in Puerto Rico. Peña could also obtain the rehabilitation he needed from two HealthSouth locations in Puerto Rico. The medical director of HealthSouth, Dr. Edward Ramos, was board-certified in physical medicine and in rehabilitation with a spinal cord injury medicine subspecialty.

         Peña wanted instead to have the spinal surgery at Beth Israel Spine Institute in New York because it is "close to [his] family" and has "a record of being the best institution." In a letter to Peña's attorney, dated April 13, 2010, IMS rejected that request and stated:

Please be advised that we can not cover your client's surgery outside of Puerto Rico. He has been examined and evaluated by a competent surgeon, Dr. S[á]nchez[-]Caso, who recommended the surgery in Puerto Rico, at the San Pablo Hospital.
Additionally, our decision is based on the fact that Mr. Peña and his immediate family continue to reside in Puerto Rico, and, Mr. Peña's recovery time will be approximately three months to one year and he will need considerable family assistance during his recovery. Under these circumstances, we must respectfully ...

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