Bath Iron Works v. Dept. of Labor

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________



          No. 96-2163



                           BATH IRON WORKS CORPORATION and

                         COMMERCIAL UNION INSURANCE COMPANY,



                               Petitioners, Appellants,



                                          v.



                 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

                          UNITED STATES DEPARTMENT OF LABOR,



                               Respondents, Appellees.



                                 ____________________


ON PETITION FOR REVIEW OF A DECISION



                             OF THE BENEFITS REVIEW BOARD



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                               and Lynch, Circuit Judge
                                          _____________



                                 ____________________


Kevin M. Gillis with whom Troubh, Heisler & Piampiano was on
               _______________           ___________________________

          brief for petitioners.

               G. William Higbee with whom McTeague, Higbee, MacAdam, Case,
               _________________           ________________________________

          Watson & Cohen was on brief for respondents.
          ______________



                                 ____________________



                                   March 06, 1998

                                 ____________________



ALDRICH, Senior Circuit Judge.  Russell E. Harford,
                               ____________________



            Jr., a long time insulation installer for defendant Bath Iron



            Works Corp. (BIW),  had to quit work because  of shortness of



            breath.   Suit  is brought  on  his behalf  by the  Director,



            Office  of Workers' Compensation Programs, U.S. Department of



            Labor, under the Longshore  and Harbor Workers'  Compensation



            Act  (LHWCA), 33  U.S.C.    901  et  seq.,  for  work-related
                                             __  ____



            disability due to "Asbestosis  and related diseases."  It  is



            undisputed that Harford  developed lung  cancer, and  further



            that his smoking  two plus packs of  cigarettes a day  for 32



            years was a basic cause.  It  is also undisputed that, though



            he  did not work  with asbestos, he  was exposed to  the dust



            from  neighboring workplaces.    He seeks  to  bring in  this



            exposure as  a contributor to  his cancer in order  to charge



            the employer and its insurer.



                      Trial   was  had  before  an  ALJ  on  letters  and



            depositions  of medical  experts.   In his decision,  the ALJ



            stated that  the asbestos did not have to be the "sole cause"



            of the  cancer for claimant  to recover.  Rather,  the entire



            disability would be compensable  if the asbestos  contributed



            to, combined with, or aggravated it.1  In short, the ultimate



                              
          ____________________



            1.  We note that the Board, similarly to the ALJ, viewed the

            issue as whether "claimant's exposure to asbestos did . . .

            cause or contribute to his lung cancer."  The parties share

            this conception.  Thus, we understand "aggravate" to be

            essentially synonymous with "contribute," and to refer to the

            cancer.  No claim has been made for aggravation of associated



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question was whether there was a "causal relationship between



            Claimant's employment and his lung cancer."  The first issue,



            however,  was  whether  the employer  had  met  the statutory



            presumption  in claimant's favor.   Title 33  U.S.C.   920(a)



            presumes,  "in the  absence of  substantial  evidence to  the



            contrary-- (a) That  the claim comes within the provisions of



            [the  Act]."  After  extensive review  and discussion  of the



            evidence,  the ALJ found  that the presumption  was rebutted,



            which  caused  it  to  "fall".    See  Sprague  v.  Director,
                                              ___  _______      _________



            O.W.C.P., 688  F.2d 862, 865  (1st Cir. 1982).   Weighing the
            ________



            evidence  without  the  presumption, he  found  there  was no



            causal  relationship  between claimant's  employment  and his



            cancer.  It  is to be stressed that this was  not for lack of



            proof by the claimant, but by belief of  affirmative evidence



            submitted  by  the employer.    Claimant did  not,  he found,



            contract asbestosis, and asbestos without  asbestosis did not



            cause or contribute to the cancer.  



                      The  Benefits  Review  Board   reversed  the  ALJ's



            finding that  the presumption  in claimant's  favor had  been



            rebutted, thereby ending the defense.  We reverse.



                        Decision of the Benefits Review Board
                        _____________________________________



                      With  reference  to   the  presumption,  the  Board



            stated,  "[The] employer's burden on rebuttal [is] to present



                              
          ____________________



            symptoms.  Cf. Gardner v. Director, O.W.C.P., 640 F.2d 1385,
                       ___ _______    __________________

            1389 (1st Cir. 1981).



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specific and  comprehensive evidence sufficient to  sever the



            causal connection between the injury and the employment."  It



            added,  "The unequivocal  testimony of  a  physician that  no



            relationship  exists  .  .  .  is  sufficient  to  rebut  the



            presumption."     This  positive   language   it  recast   as



            "unequivocally  severs."    "Unequivocal,"  on  a  search  of



            dictionaries, universally means "not  doubtful," or the like,



            which we take to mean certainty.   That the Board so intended



            is  inescapably  confirmed  by  its  response  to  employer's



            expert, Dr. Cadman's unwillingness to be  absolutely certain.



            Because  Dr.  Cadman,  in the  Board's  words,  conceded that



            "asbestos  may have contributed to claimant's lung cancer and



            that  he   could  not   exclude  that   exposure  as   having



            contributed"  to   it,  the   Board  thought   his  testimony



            insufficient to rebut the presumption.



                      As  we  have previously  held,  the  presumption is



            overcome with  substantial  evidence of  non-causation.   See
                                                                      ___



            Sprague,  688  F.2d at  865.   Substantial evidence  is "such
            _______



            relevant  evidence as  a  reasonable  mind  might  accept  as



            adequate  to  support  a conclusion."    Id.  (quotations and
                                                     ___



            citation omitted).   This  means "reasonable  probabilities."



            Cf. DaSilva v. American Brands,  Inc., 845 F.2d 356, 361 (1st
            ___ _______    ______________________



            Cir. 1988); Bath Iron Works Corp. v. Director,  O.W.C.P., 109
                        _____________________    ___________________



            F.3d 53, 56 (1st Cir.  1997); Oberlander's Case, 348 Mass. 1,
                                          _________________



            7,  200  N.E.2d  268 (1964)  (Workmen's  Compensation).   Dr.


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Cadman's medical opinion was found insufficient by the Board,



            however,  because he  could not  exclude  possibilities --  a



            typical expert opinion.  This put an impossible burden on the



            employer.



                      We   have,  therefore,  two  questions.    Did  the



            employer submit substantial evidence,  when properly defined?



            (A  question  of  law  for   the  court,  not  dependent   on



            credibility.  See  Sprague, 688 F.2d at 865; CNA  Ins. Co. v.
                          ___  _______                   _____________



            Legrow, 935  F.2d 430, 433-34 (1st Cir.  1991)).  At the same
            ______



            time,  we  may ask  whether  the  ALJ  was warranted  in  his



            substantive findings.   In this connection we  note 33 U.S.C.



              921(b)(3),



                           The findings of fact in the decision

                      under  review  by  the   Board  shall  be

                      conclusive  if  supported  by substantial

                      evidence  in the  record considered  as a

                      whole.



            This means, obviously, that the ALJ's choice of inferences is



            to be respected.  See Sprague, 688 F.2d at 866 ("In reviewing
                              ___ _______



            for  substantial evidence  it is  immaterial  that the  facts



            permit diverse inferences  as long as those drawn  by the ALJ



            are supported by evidence.").



                                  The ALJ's Decision
                                  __________________



                      The ALJ's  conclusions are  backed by  an extensive



            discussion  of the  several experts.   One  or more  of BIW's



            experts  testified  that current  medical  evidence indicates



            that a finding of interstitial fibrosis is necessary to reach


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a diagnosis of  asbestosis.  There was testimony  that tissue



            samples  and x-ray analyses produced no evidence that Harford



            had asbestosis; that he did not have fibrosis  at the time of



            his surgery, and  that the alveolar damage found  in a biopsy



            some  months later was  caused by radiation  and chemotherapy



            rather than by asbestos exposure.  



                      Two experts  testified on causation of  the cancer.



            Dr. Cadman's conclusion was,



                      [C]urrent    evidence    evaluating   the

                      association  of  asbestos  exposure, lung

                      fibrosis and lung cancer strongly suggest

                      [sic]   that  the   excess  lung   cancer
                                    ___________________________

                      attributable  to  asbestos  is associated
                      _________________________________________

                      with fibrosis.  Therefore, lung cancer in
                      _____________

                      the absence of pulmonary fibrosis is most

                      likely lung cancer which developed either

                      from the effects of  smoking alone or  it

                      arose unrelated  to any  known carcinogen

                      as  occurs in  the  non-smoker. . . .   I

                      believe that in  the absence of fibrosis,

                      that [Mr. Harford's] lung cancer was most

                      likely  the   result  of   prior  smoking

                      history. (emphasis added).



                      The ALJ concluded,



                      Based on the  record medical evidence,  I

                      determine that the employer/carriers have

                      produced   specific  objective   clinical

                      evidence  and  soundly  reasoned  medical

                      opinions sufficient  to sever  the causal

                      nexus  and  have   thereby  rebutted  the

                      Section 20 presumption.



            Since   the  ALJ  had  stated  earlier  that  cause  included



            contribution, we find  that the ALJ was  warrantably covering



            both in this  finding.  Dr. Cadman reasonably  could be found



            as of  the opinion  that diffuse  interstitial fibrosis  (and


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therefore  asbestosis)  is  generally present  when  asbestos



            exposure is a  contributing cause to lung cancer.   Viz., the



            probability  is   against   asbestos,  in   the  absence   of



            asbestosis.   In other  words, asbestos  exposure had  had no



            belated, contributory, effect, as well as no original effect.



            We believe, following Dr. Cadman's reference to "excess" lung



            cancer, particularly  when there  had been  negative evidence



            covering  the  period  between  surgery  and  the  subsequent



            biopsy, that his  last quoted sentence  is not to be  read as



            limiting his opinion  to the original cancer.   In short, Dr.



            Cadman's opinion  is substantial  evidence of  non-causation,



            sufficient  both to  rebut the presumption  and to  support a



            finding for BIW.



                                        Next?
                                        _____



                      First, an  observation.  Harford's claim  was filed



            on March  20, 1989, just short of nine  years ago.  The ALJ's



            unfavorable decision  on the  merits was  filed  on June  10,



            1991; the Board's remand for a hearing on damages on November



            23,  1993.   BIW's petition  for review  of the  ALJ's damage



            finding was  filed July 7,  1994.  This finding  was affirmed



            automatically   under  the   statute,  Omnibus   Consolidated



            Rescissions and Appropriations Act of  1996, Pub. L. No. 104-



            134,    101(d), 110 Stat.  1321, 1321-219 (1996),  because of



            the   Board's  not  having  passed  on  the  petition  before



            September 12, 1996.  We believe the time  has come to resolve


7



matters.  If  we remand the case  to the Board to  review the



            ALJ's  decision  on the  merits,  it  will  be bound  by  his



            findings in the absence of error. See 33 U.S.C.    921(b)(3).
                                              ___



            Why  the unnecessary  steps?   The  short answer  is that  we



            should take over  finally now.  And, indeed,  we have already



            reviewed the ALJ's detailed and careful opinion.  Substantial



            evidence  supports the  ALJ's conclusion  that  there was  no



            causal relationship.  We find no error.



                      The  decision  of  the  Benefits  Review  Board  is
                      ___________________________________________________



            reversed, and the denial of  claim of Russell E. Harford, Jr.
            _____________________________________________________________



            is reinstated.
            ______________


- Dissent follows -


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LYNCH, Circuit  Judge, dissenting.   The  record in
                      LYNCH, Circuit  Judge, dissenting.
                             ______________



            this  case sets  forth substantial  evidence  to support  the



            Board's finding  that the employer, which had  rebutted the  



            920(a) presumption  that asbestos exposure  caused claimant's
                                                        ______



            lung  cancer, did  not  rebut the    920(a)  presumption that



            asbestos exposure contributed  to claimant's lung cancer.   I
                              ___________



            would affirm the Board.  



                      The  employer's   evidence  all  went   to  initial



            causation  with  one  exception.    That  exception  was  the



            testimony of  its lead expert,  Dr. Cadman, and it  tended to



            support claimant  on the  contribution issue.   In  testimony



            introduced at the hearing, Dr. Cadman was invited and refused



            to  testify  that  he  could  say  to  a  reasonable  medical



            probability that  asbestos had  not contributed  to Harford's
                                                ___________



            cancer.   Rather, Dr. Cadman  testified that 10-15% of people



            with  occupational  exposure  to  asbestos who  develop  lung



            cancer  do   not  experience  fibrosis  in  the  lungs.    He



            specifically  stated  (after  a  direct  question  on whether



            asbestos could  have contributed  to  Harford's cancer)  that



            asbestos  exposure "may be contributing," even in the absence



            of asbestos-caused fibrosis, "although at a very small level,



            because he does not have fibrosis."  



                      There is a crucial difference,  acknowledged in our



            case  law, between employment-related  injuries that  are the



            primary  cause of a  disability and those  which aggravate or


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contribute  to  a  pre-existing  condition.    See  Director,
                                                           ___  _________



            O.W.C.P. v. Bath Iron  Works Corp., 129 F.3d 45, 50 (1st Cir.
            ________    ______________________



            1997); Bath Iron Works Corp. v. Director, O.W.C.P., 109  F.3d
                   _____________________    __________________



            53, 55 (1st Cir. 1997).  Under the "aggravation rule," even a



            small   contribution  by  a  work-related  condition  to  the



            claimant's disability  is sufficient to trigger full recovery



            under the  LHWCA; primary causation  need not be shown.   See
                                                                      ___



            Hensley v.  Washington Metro.  Area Transit  Auth., 655  F.2d
            _______     ______________________________________



            264, 268 (D.C. Cir. 1981).  The aggravation rule embodies the



            essentially humanitarian purposes  of the LHWCA.   It assures



            that  a  claimant  is  compensated  where  employment-related



            injury is not  the sole cause  of the claimant's  disability.



            Here,  Dr. Cadman  testified that  the  absence of  asbestos-



            caused fibrosis  is not  sufficient evidence  to support  the



            conclusion  that  asbestos  exposure did  not  contribute  to



            Harford's   cancer.    BIW   therefore  did  not   rebut  the



            presumption that  asbestos exposure contributed  to Harford's



            lung cancer.   The absence of fibrosis proves  nothing on the



            contribution issue.



                      The ALJ erroneously conflated the primary causation



            and  contribution  analyses  and  incorrectly concluded  that



            where  there   was  no   primary  causation   there  was   no



            contribution, either.   The Board, performing these  analyses



            separately,  recognized  the  significance  of  Dr.  Cadman's



            testimony as to  contribution.  Because Dr.  Cadman expressly


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stated that asbestos  exposure could have contributed  to the



            cancer  in the  absence  of  fibrosis,  the  Board  correctly



            reversed.  In light of the purposes of the Act, manifested by



            the    920(a)  presumption,  and  the  precedent  that  close



            questions should  be decided in  favor of  the claimant,  see
                                                                      ___



            Bath  Iron Works Corp. v. White,  584 F.2d 569, 574 (1st Cir.
            ______________________    _____



            1978), I respectfully dissent.


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