Edward D. Davalos v. Ports America Texas, Incorporated (Board decision, August 31, 2020)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board affirmed the rulings holding Ports America Texas responsible for Edward Davalos's work injury benefits and denying its modification request. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Edward Davalos injured his back, shoulder, knees, and wrist in a fall while working for Ports America Texas. An administrative law judge found his continuing neck and back conditions related to that fall and held Ports America responsible for medical care, while dismissing several later maritime employers from the claim. Ports America sought modification after arguing that later work aggravated his condition. The judge denied the request because shifting liability while Davalos needed treatment would leave him without care, and the other potentially responsible employers were not joined to the modification proceeding. The Board upheld the dismissal of the other employers, the medical benefit ruling, and the denial of modification. It also upheld the temporary disability ruling described in the judge's orders.

Decision snapshot

• Authority: Board review under 33 U.S.C. § 921(b)(3) and appellate briefing under 20 C.F.R. § 802.211(b).
• Outcome: Medical benefit and temporary disability rulings, plus the denial of modification, affirmed.
• Key point: The employer did not show that later work caused a new injury, and the judge reasonably weighed the effect of modification on needed treatment.
• Docket note: The release heading prints 20-0074, but the procedural history and second-appeal discussion identify the consolidated docket as 20-0076.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB Nos. 19-0281 and 20-0074

EDWARD D. DAVALOS
)
)
Claimant-Respondent
)
)
v. )
)
PORTS AMERICA TEXAS,
)
INCORPORATED
)
)
and
) DATE ISSUED:_____
08/31/2020
)
PORTS INSURANCE COMPANY,
)
INCORPORATED
)
)
Employer/Carrier-
)
Petitioners
)
)
COOPER/PORTS AMERICA
)
INCORPORATED
)
)
and
)
)
AMERICAN LONGSHORE MUTUAL
)
ASSOCIATION, LIMITED
)
)
Employer/Carrier-
)
Respondents
)
)
UNIVERSAL MARITIME COMPANY,
)
INCORPORATED
)
)
and
)
)
SIGNAL MUTUAL INDEMNITY
)
ASSOCIATION, LIMITED
)
)
Employer/Carrier- )
Respondents
)
)
SUDERMAN CONTRACTING
)
STEVEDORES, INCORPORATED
)
)
and
)
)
SIGNAL MUTUAL INDEMNITY
)
ASSOCIATION, LIMITED
)
)
Employer/Carrier- )
Respondents
)
)
INTEGRATED MARINE SERVICES )
)
and
)
)
ZURICH AMERICAN
)
)
Employer/Carrier- )
Respondents
)
)
CERES GULF
)
)
Self-Insured
)
Employer-Respondent )
)
COOPER/T. SMITH, INCORPORATED )
)
and
)
)
AMERICAN LONGSHORE MUTUAL )
ASSOCIATION, LIMITED
)
)
Employer/Carrier- )
Respondents
) DECISION and ORDER

2
 Appeals of the Order Granting Motions for Summary Decision, the Decision and Order, the Decision and Order Denying Modification, and the Orders on Reconsideration of Larry W. Price, Administrative Law Judge, United States Department of Labor.

Richard Schechter (Law Office of Richard Schechter, P.C.), Houston, Texas, and Paul R. Miller, Houston, Texas, for Claimant.

Christopher M. Landry and John D. Mineo, IV (The Monson Law Firm, LCC), Mandeville, Louisiana, for Ports America Texas, Incorporated and Ports Insurance Company, Incorporated.

John C. Elliott (Schouest, Bamdas, Soshea & BenMaier PLLC), Houston, Texas, for Cooper/Ports America Incorporated and American Longshore Mutual Assurance Association, Limited.

C. Douglas Wheat and Amanda N. Farley (Wheat, Oppermann P.L.L.C.), Houston, Texas, for Universal Maritime Company, Incorporated and Signal Mutual Indemnity Association, Limited, and Suderman Contracting Stevedores, Incorporated and Signal Mutual Indemnity Association, Limited.

Taylor M. Bologna, Evans M. MacLeod and Justin C. Warner (Phelps Dunbar LLP), New Orleans, Louisiana, for Integrated Marine Services and Zurich American.

Lawrence P. Postol (Postol Law Firm, P.C.), McLean, Virginia, for Ceres Gulf.

Collin D. Seipel and Austen T. Gunnels (Brown Sims), Houston, Texas, for Cooper/T. Smith, Incorporated and American Longshore Mutual Association, Limited.

Before: BOGGS, Chief Administrative Appeals Judges, BUZZARD and JONES, Administrative Appeals Judges.

PER CURIAM:

Ports America Texas and its Carrier Ports Insurance Company (Employer or Ports America) appeal Administrative Law Judge Larry W. Price’s Order Granting Motions for Summary Decision, Decision and Order, Decision and Order Denying Modification, and Orders on Reconsideration (2018-LHC-00601) rendered on a claim filed pursuant to the 3
Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (Act). We must affirm the administrative law judge’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

On July 7, 2014, Claimant fell 8 to 10 feet from a deck while working for Employer.
Employer accepted as compensable Claimant’s left wrist, bilateral knee, right shoulder and back injuries that resulted from the fall, and consequently paid Claimant disability benefits until March 20, 2015, at which time Employer asserted Claimant’s work-related disability ended and Claimant no longer needed medical treatment.

Claimant, who returned to work after March 20, 2015, first with Employer and then with multiple other longshore employers, sought medical benefits under the Act for expenses he asserted were related to his work-related back and neck conditions. Claimant additionally sought benefits for any future periods of disability related to his work injuries. Employer controverted the claim, challenging the compensability of Claimant’s alleged neck condition and averring that any benefits due subsequent to March 20, 2015, are related to aggravations of his condition that occurred while he worked for subsequent maritime employers. Employer impleaded seven of Claimant’s post-March 20, 2015 maritime employers: Cooper/Ports America, Integrated Machine Services, Cooper/T. Smith, Ceres Gulf, Suderman Contracting Stevedores, Universal Maritime, and Shippers Stevedoring. The first six of these impleaded employers filed motions for summary decision.1 In an Order Granting Motions for Summary Decision dated August 29, 2018, the administrative law judge concluded Employer presented no persuasive evidence in support of its position that Claimant sustained a post-July 2014 aggravation or injury while working for subsequent employers that worsened or combined with his initial injury. The administrative law judge therefore granted the employers’ motions for summary decision and dismissed them from the claim. Employer unsuccessfully sought reconsideration of the administrative law judge’s August 29, 2018 Order. See Sept. 12, 2018 Tr. at 5 – 6. The administrative law judge presided at a formal hearing on September 12, 2018.

On February 12, 2019, the administrative law judge issued a Decision and Order (Davalos I) wherein he found Claimant’s cervical spine condition is related to the 2014 fall at work, see Davalos I at 20 – 24, and Employer is liable for all reasonable and necessary medical expenses related to Claimant’s injuries, including his back condition. Id. at 27 –

30. As Employer briefed the issue of whether it was the employer responsible for the
    payment of any benefits awarded, the administrative law judge again addressed Employer’s

    1
    Shippers Stevedoring apparently was no longer in business.

                                          4
    

    assertions. He concluded the weight of the credible evidence establishes Claimant’s ongoing complaints of pain are the natural progression of the acute injuries he sustained on July 7, 2014, and Employer did not establish Claimant sustained a second injury, aggravation, re-injury, or cumulative trauma during his later employment. Id. at 31 – 33. Accordingly, the administrative law judge found Employer responsible for medical benefits for Claimant’s work injuries.

    Employer appealed the administrative law judge’s August 29, 2018 Order
    dismissing the six impleaded employers and the administrative law judge’s February 12, 2019 Decision and Order holding Employer liable for Claimant’s benefits. BRB No. 19- 0281.

    Following the issuance of Davalos I, Claimant underwent an examination by Dr.
    Stephen Esses. Dr. Esses recommended back surgery, which Claimant agreed to. When Employer refused to authorize the surgery, Claimant sought enforcement of the administrative law judge’s February 12, 2019 Decision and Order awarding medical benefits payable by Employer before the district director. On April 25, 2019, Employer notified the Board that it had filed a motion for modification with the administrative law judge. In an Order issued May 8, 2019, the Board dismissed BRB No. 19-0281 without prejudice and remanded the case to the administrative law judge for modification proceedings.

    A telephone conference with the district director was held on May 23, 2019, during
    

    which Employer took the position that it was no longer liable for Claimant’s medical treatment since it had documentation establishing Claimant’s condition was aggravated by his work with a subsequent employer. In a Memorandum of Informal Conference issued on May 31, 2019, the district director acknowledged the administrative law judge’s February 12, 2019 Decision and Order awarding Claimant medical treatment payable by Employer, but concluded that because Claimant’s work with a subsequent employer aggravated and worsened his condition, it is not reasonable for Employer to authorize surgery or continue medical care to treat Claimant’s present, aggravated condition. The district director additionally recommended that Claimant file a claim for aggravation against his subsequent employer, Ceres Gulf. On June 12, 2019, Claimant filed an LS-203 form, Employee’s Claim for Compensation, on which he stated the district director had “strongly recommended” that he file an aggravation claim against his subsequent employer, Ceres Gulf. See Cl. Br. at 18 n.7.2

    Claimant’s new claim was first associated with his initial claim,
    2

OWCP No. 08-302298, but was later assigned a new claim number, OWCP No. 08-318708. See Emp. July 17, 2019 Motion, Exs. 2, 3.

5
 On August 19, 2019, the administrative law judge issued a Decision and Order Denying Modification (Davalos II). The administrative law judge acknowledged he had previously found Employer responsible for ongoing medical treatment of Claimant’s neck and back conditions, and he found Employer presented medical evidence sufficient to support its motion for modification on the issue of the employer responsible for Claimant’s medical benefits. Davalos II at 9. He also found Employer, while diligent in seeking modification, did not make its request “in good faith” because it continued to deny Claimant treatment despite his ongoing complaints. Id. The administrative law judge concluded that finality interests required that he decline to consider Employer’s modification request “in light of Claimant’s physical condition and his dire need for ongoing treatment and surgery, which has [been] postponed solely due to Employer’s refusal to accept responsibility for Claimant’s medical condition” and that “[E]mployer failed to satisfy the threshold query required by the justice under the Act standard” for modification. Id. The administrative law judge thus denied Employer’s petition for modification and held Employer liable for temporary total disability due Claimant commencing March 25, 2019, and for all reasonable and necessary medical expenses. Id. at 10.

Employer and Claimant sought reconsideration of the administrative law judge’s decision in Davalos II.3 In an Order dated September 20, 2019, the administrative law judge denied Employer’s motion, stating granting modification would leave Claimant without care pending further litigation, a result he found contravenes the spirit of the Act. The administrative law judge granted Claimant’s motion to amend the Decision and Order to clarify Employer is liable for compensation at the stipulated compensation rate from the date Claimant ceases working pursuant to the orders of Dr. Esses or Dr. Ankur Mehta. The administrative law judge denied Employer’s motion for reconsideration.

Employer appeals the administrative law judge’s Decision and Order Denying Modification and denials of reconsideration. BRB No. 20-0076. Employer also moved for reinstatement of its prior appeal, BRB No. 19-0281. In an Order issued January 30, 2020, the Board reinstated BRB No. 19-0281, and consolidated it with BRB No. 20-0076 for purposes of decision. Claimant, Cooper/Ports America, Integrated Machine Services, Ceres Gulf, Suderman Contracting Stevedores, Cooper/T. Smith, and Universal Maritime respond, urging affirmance of the administrative law judge’s finding that Employer is the responsible employer. Employer has filed a reply brief.

3
On August 29, 2019, the administrative law judge granted Employer’s motion in part as it related to Claimant’s entitlement to temporary total disability benefits, but deferred a ruling on the responsible employer issue.

6
 BRB No. 19-0281

Employer contends there were genuine issues of material fact as to the responsible employer and the administrative law judge erred in granting the impleaded employers’ motions for summary decision. We disagree.

In allocating liability between successive employers in cases involving traumatic injury, the employer at the time of the original injury remains liable for the full disability resulting from the natural progression of that injury. If, however, the claimant sustains a subsequent work injury that aggravates, accelerates, or combines with his prior injury, the employer at the time of the subsequent injury is liable for the entire disability resulting therefrom.4 Sea-Land Services, Inc., v. Director, OWCP [Ceasar], 949 F.3d 92, 54 BRBS 9(CRT) (5th Cir. 2020). Where the claimant’s work exacerbates his symptoms, the employer at that time is responsible for any resulting disability. See Marinette Marine Corp. v. Director, OWCP, 431 F.3d 1032, 39 BRBS 82(CRT) (7th Cir. 2005); Delaware River Stevedores, Inc. v. Director, OWCP, 279 F.3d 233, 35 BRBS 154(CRT) (3d Cir. 2002).

In determining whether to grant a motion for summary decision, the administrative law judge must determine, after viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the moving party is entitled to summary decision as a matter of law. Morgan v. Cascade General, Inc., 40 BRBS 9 (2006); see also O’Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir. 2002); Brockington v. Certified Elec., Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991); Buck v. General Dynamics Corp., 37 BRBS 53 (2003); 29 C.F.R. §18.72. In addition, the trier-of-fact must draw all inferences in favor of the non- moving party. See O’Hara, 294 F.3d at 61; Morgan¸ 40 BRBS at 9. If a rational trier-of- fact could resolve the issue in favor of the non-moving party, summary decision must be denied. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).

In his Order Granting Motions for Summary Decision, the administrative law judge rejected Employer’s position that Claimant’s then-current back condition was not related to his July 2014 work injury, finding “the record contains no evidence whatsoever to support [Employer’s] position that Claimant suffered an actual (rather than theoretical) aggravation of his July 2014 injury.” Order at 6. Employer relied on the opinion of Dr. Alan Rechter to defeat the summary judgment motions, but the administrative law judge

4
Under the aggravation rule, if the injury aggravates, exacerbates, or combines with a prior condition, the entire resulting disability is compensable. See Strachan Shipping v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc).

7 found Dr. Rechter offered only a speculative opinion that Claimant’s work with subsequent employers “could have aggravated” Claimant’s condition. The administrative law judge further found Dr. Esses and Dr. Larry Likover unequivocally stated Claimant’s subsequent work activities did not aggravate his condition. Id. The administrative law judge concluded that “[n]owhere is there evidence of any aggravation relating to Claimant’s post- injury employment.” Id. Therefore, having determined “the record contains no evidence to support [Employer’s] position that Claimant suffered an aggravation or injury after July 2014 that worsened or combined with his initial injury to produce disability greater than that which would have resulted from the initial injury alone,” id., the administrative law judge concluded no genuine issue of material fact existed with regard to the liability of the six impleaded employers, granted summary decision, and dismissed the impleaded employers. Id. at 7.

We affirm the administrative law judge’s decision to grant the motions for summary decision. The administrative law judge viewed the evidence in the light most favorable to the non-moving party, i.e., Employer, and determined there were no genuine issues of material fact with regard to whether Claimant sustained an aggravation or injury subsequent to July 2014. See Order at 6 - 7. He concluded no evidence was presented that could support a finding Claimant sustained an actual aggravation or injury subsequent to July 2014; at best, Employer offered evidence of only a speculative possibility that Claimant’s condition could have been aggravated by post-July 2014 employment. Id. at 6. Employer has not identified any error in the administrative law judge’s analysis of the evidence. Accordingly, we affirm the administrative law judge’s Order Granting Motions for Summary Decision and dismissing the impleaded employers. Morgan, 40 BRBS 9; 29 C.F.R. §18.72.

Although the other employers were dismissed from the case, Employer proceeded at the formal hearing to press its claim that it was not the responsible employer. In this respect, Employer contends in its appeal on the merits that the administrative law judge erred by not finding Claimant’s condition was aggravated by his longshore employment after he returned to work following his July 2014 injury. The administrative law judge found Claimant’s then-current back and neck complaints were due to the July 7, 2014, work injury. He rejected Employer’s evidence that Claimant’s work injury had resolved and its contention that Claimant sustained aggravations in subsequent employment. Davalos I at 30 – 33. Although Claimant testified working worsened his pain, see Tr. at 95 - 98, 100 – 101, the administrative law judge found his physicians documented pain complaints while he was off duty, on light duty, and on unrestricted duty. Id. at 31. He concluded Claimant’s condition and pain complaints had remained consistent. Id. at 33.

8
 In addressing the medical evidence, the administrative law judge found no physician opined Claimant’s subsequent work actually exacerbated his condition. Davalos I at 31 -

33. He found Dr. Rechter opined Claimant’s back pain was related to his pre-existing
    condition, and that any exacerbation was caused by the “nature of living,” see EX 30; Dr. Likover opined Claimant’s problems are the result of natural progression of degenerative disc disease over time, with no evidence of a subsequent injury, aggravation, acceleration or hastening, see EX 45; Dr. Esses found no new injury or aggravation, see EX 63; and Dr. Mehta opined Claimant’s disc herniations had not worsened, see Tr. at 82 83. Davalos I at 5 – 18, 31 - 33. Thus, the administrative law judge concluded Claimant did not sustain a second injury, aggravation, re-injury, or cumulative trauma during his continued longshore employment, and the weight of the credible evidence establishes Claimant’s ongoing complaints are the natural progression of the acute injuries he sustained on July 7, 2014 while working for Employer. He consequently held Employer liable for all medical benefits due Claimant. Id. at 32-33.

    The administrative law judge addressed Employer’s contentions in light of the
    proper law and his conclusion is supported by substantial evidence. See Siminski v. Ceres Marine Terminals, 35 BRBS 136 (2001); McKnight v. Carolina Shipping Co., 32 BRBS 165, aff’d on recon. en banc, 32 BRBS 251 (1998). In weighing the record as a whole, the administrative law judge appropriately recognized that, in a traumatic injury case, the subsequent employment must contribute in some way to the resultant disability in order for a subsequent employer to be held liable. See Delaware River Stevedores, 279 F.3d 233, 35 BRBS 154(CRT). In this case, the administrative law judge permissibly determined the weight of the credible evidence establishes Claimant’s ongoing pain complaints were the natural progression of his initial work-related injury. See Davalos I at 31-33. Therefore, we affirm the administrative law judge’s finding that Employer is liable for the awarded medical benefits.5

                               BRB No. 20-0076
    

    In its second appeal, BRB No. 20-0076, Employer challenges the administrative law
    judge’s decision denying its motion for modification. Employer asserts it presented

    5
    Dr. Esses first recommended that Claimant undergo back surgery on April 12,
    2016. See Tr. at 98 – 99, 107. Claimant did not, however, undergo surgery at that time. Before the administrative law judge, the parties contested, inter alia, the compensability of Claimant’s neck condition and Employer’s responsibility for Claimant’s medical treatment. Consequently, the administrative law judge’s Decision and Order in Davalos I focused on Claimant’s claim for ongoing medical care.

                                         9
    

    sufficient evidence to establish Claimant’s condition subsequent to March 25, 2019, was the result of his employment with subsequent longshore employers.

    Modification pursuant to Section 22 of the Act, 33 U.S.C. §922, is permitted if the
    petitioning party demonstrates a mistake in a determination of fact, Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459 (1968), or a change in the claimant’s physical or economic condition, Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1(CRT) (1995). It is well established that the party requesting modification due to a change in condition has the burden of showing the change in condition. See, e.g., Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54(CRT) (1997). The purpose of Section 22 is to render “justice under the Act.” See Island Operating Co., Inc. v. Director, OWCP [Taylor], 738 F.3d 663, 47 BRBS 51(CRT) (5th Cir. 2013); Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 36 BRBS 35(CRT) (7th Cir. 2002); Jensen v. Weeks Marine, Inc., 346 F.3d 273, 37 BRBS 99(CRT) (2d Cir. 2003). This inquiry may require a weighing of competing equities. Westmoreland Coal Co., Inc. v. Sharpe, 692 F.3d 317 (4th Cir. 2012), cert. denied, 133 S.Ct. 2852 (2013); Old Ben Coal Co., 292 F.3d 533, 36 BRBS 35(CRT); McCord v. Cephas, 532 F.2d 1377, 3 BRBS 371 (D.C. Cir. 1976).

    Following the issuance of Davalos I, Claimant was examined by Dr. Esses on
    

    March 11, 2019. Dr. Esses recommended Claimant undergo an MRI, see Emp. Pet. for Mod., Ex. 1, which he did on March 20, 2019. Id., Ex. 3. Following this procedure, Dr. Esses determined Claimant’s disc herniation at L5-S1 had worsened, and he recommended he undergo a discectomy. Id., Ex. 4. On April 17, 2019, Dr. Esses stated in an email to Employer that Claimant’s continued longshore employment had aggravated and worsened his disc condition. Id., Ex. 6. Relying on this opinion, Employer declined to authorize Claimant’s surgery and sought modification, seeking to be relieved of liability. As discussed above, Claimant sought enforcement of the prior award of medical benefits, which the district director denied, and Claimant filed a new claim for the surgery and resulting disability.

    In denying Employer’s motion for modification, the administrative law judge
    considered whether modification would render justice under the Act. See Davalos II at 8. He concluded:

    finality interests require declining to consider this modification request at this
    time in light of Claimant’s physical condition and his dire need for ongoing
    treatment and surgery, which has [been] postponed solely due to Employer’s
    refusal to accept responsibility for Claimant’s medical condition.

          Overall, despite the recent MRI and evaluations by Dr. Esses, I find
    

    that Employer has failed to satisfy the threshold query required by the justice
    10
     under the Act standard. . . . Granting Employer’s modification request would
    release it from responsibility for Claimant’s benefits and place those
    responsibilities at another employer’s door, which I cannot do without
    affording that employer the opportunity to present a defense. Granting
    Employer’s modification would also forestall the medical treatment and
    surgery Claimant has needed for years – he is now five years post-injury –
    and had just begun to receive only to, once again, be denied pending
    litigation. At this juncture, I deny Employer’s modification request and
    direct it to apply for modification before the District Director. In so doing,
    Claimant will be able to obtain the benefits he undisputedly needs and has
    been denied. Should another employer ultimately be found responsible,
    Employer (here) may seek reimbursement for any benefits paid. Weighing
    the competing equities, I find this result less prejudicial and more agreeable
    with the remedial spirit of the Act than a result in which Claimant would be
    left without benefits and medical care pending litigation yet again.

Id. at 9 -10.6

Employer sought reconsideration, which the administrative law judge denied stating:

Employer’s Motion is essentially a reurging of its arguments on modification. Employer has requested relief from any responsibility for Claimant’s ongoing benefits, citing to the opinion by Dr. Stephen Esses, Claimant’s treating physician, rendered on March 25, 2019. I find that the issue of determining the employer responsible for Claimant’s treatment going forward cannot be determined on the basis of Dr. Esses’s opinion alone. A decision in Employer’s favor would pass responsibility onto Ceres Gulf or another employer and require further development of medical evidence, all the while leaving Claimant without treatment. Three years have pas[sed] since Dr. Esses first recommended surgery. . . . As granting modification would leave Claimant without care pending further litigation, a result that I find contravenes the spirit of the Act, Employer’s Motion is

6
The administrative law judge found Employer’s modification motion promoted accuracy and was not futile, but that modification did not render “justice under the Act” because “finality interests require declining to consider this modification request at this time in light of Claimant’s physical condition and his dire need for ongoing treatment and surgery.” Davalos II at 9.

11 denied. If modification is indeed warranted following considered litigation, Employer has recourse to recover any expended monies.

Order (Sept. 20, 2019).

On appeal, Employer argues the administrative law judge erred in denying its motion for modification because the opinion of Dr. Esses supports its contention that Claimant’s condition was aggravated by subsequent employment. See Emp. Br. at 38 –

43. However, Employer has not addressed the administrative law judge’s discussion of the
    competing equities which led to his conclusion that granting Employer’s motion would not render justice under the Act.7 See 20 C.F.R. §802.211(b) (petitioner must adequately challenge findings). Moreover, the administrative law judge permissibly concluded that granting Employer’s motion would not render justice under the Act as it would leave Claimant without a remedy because other potentially liable employers were not joined to the case.8 Old Ben Coal, 292 F.3d at 547 (“To the extent that an ALJ determines that there are important reasons grounded in the language and policy of the Act that overcome the preference for accuracy, that determination should not be disturbed.”). Consequently, as Employer has not demonstrated the administrative law judge abused his discretion in weighing the equities in view of the purposes of the Act, we affirm administrative law judge’s denial of Employer’s motion for modification.9

    7
    Employer also avers it has paid all medical benefits in accordance with Davalos I
    and authorized the October 2019 surgery recommended by Dr. Esses. See Emp. Reply Br. at 5. If so, this comports with part of the administrative law judge’s rationale because Employer can seek reimbursement of the cost of the surgery from any other potentially liable employers.
    8
    As well, the administrative law judge correctly stated that any other potentially
    liable employers have the right to defend Employer’s claim to relief on modification. Davalos II at 9-10.
    9
    The status of the second claim Claimant filed in June 2020 is not apparent from
    the record or the parties’ pleadings. It is clear, however, that any renewed motion for modification Employer files must be consolidated with the new claim, with all potentially liable employers joined to the case before the merits of the motion are considered.

                                       12
    

    Accordingly, we affirm the administrative law judge’s Order Granting Motions for Summary Decision, the Decision and Order, the Decision and Order Denying Modification, and the Orders on Reconsideration.

    SO ORDERED.

                                          JUDITH S. BOGGS, Chief
                                          Administrative Appeals Judge
    
                                          GREG J. BUZZARD
                                          Administrative Appeals Judge
    
                                          MELISSA LIN JONES
                                          Administrative Appeals Judge