PETITION FOR REVIEW OF A FINAL ORDER OF THE BENEFITS REVIEW
BOARD, UNITED STATES DEPARTMENT OF LABOR
F. Soler on brief for petitioner.
Porro-Vizcarra and Manuel Porro-Vizcarra Law Offices on brief
for respondents Calzadilla Construction Corporation and IMS
Insurance Company of Puerto Rico.
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
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.
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.
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
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.
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.
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 ...