Burns v. Director, Office of Workers' Compensation Programs

41 F.3d 1555, 309 U.S. App. D.C. 400, 1994 WL 704815
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 20, 1994
DocketNos. 93-1476, 93-1626
StatusPublished
Cited by13 cases

This text of 41 F.3d 1555 (Burns v. Director, Office of Workers' Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Director, Office of Workers' Compensation Programs, 41 F.3d 1555, 309 U.S. App. D.C. 400, 1994 WL 704815 (D.C. Cir. 1994).

Opinions

Opinion for the Court filed by Circuit Judge WALD.

Concurring Opinion filed by Circuit Judge SILBERMAN.

WALD, Circuit Judge:

Petitioner Robert L. Bums seeks review of three orders of the Benefits Review Board (“BRB” or “Board”). Burns contends that the Board exceeded its statutorily defined scope of review in reversing the first two Administrative Law Judge (“ALJ”) rulings. We agree that the Board overstepped its authority, and find that the original ALJ award of benefits was supported by substantial evidence. We therefore grant Burns’s petition for review, and reinstate the ALJ’s original compensation order.

I. BACKGROUND

A. The Facts

In 1980, Burns was 68 years old, and employed by the Hyman Construction Company. He worked as a reinforcing rodman, positioning the steel rods that reinforce concrete floors and columns in office buildings and other structures. While working on the exposed top floor of a building one cold February morning, Burns ran out of materials and descended one level in search of more. He found what he needed in an area enclosed in plastic sheeting and heated by propane gas.1

When Burns entered the enclosed area, he became disoriented, and “had to get out.” Burns believes that this was because the area was inundated with propane. After leaving [1558]*1558the enclosure, Burns returned upstairs to rejoin the other workers. Minutes thereafter he experienced numbness in his left hand and arm, and difficulty in speaking. His coworkers summoned an ambulance to transport him to the George Washington University Hospital.

There Burns was diagnosed as having experienced' a minor stroke.2 An arteriogram revealed that he suffered approximately 90% “stenosis,” or narrowing, of his right carotid artery, a major artery supplying blood to the brain. The stenosis resulted from the accretion of plaque3 on the walls of Burns’s artery, a process that occurs over a number of years. His doctors feared that a large clot might at any time break off the plaque and circulate to Burns’s brain, causing a far more severe stroke. Burns underwent emergency surgery to excise the plaque. Afterward, he was hospitalized for nearly a month and endured a lengthy period of rehabilitation.

Burns asserted from the outset that exposure to propane gas on the job precipitated his stroke. Accordingly, in September 1981 he consulted with counsel as to his remedies. His attorney requested opinions from the physicians who eared for Burns following his stroke. One of these physicians, Dr. Teych-enne, opined by letter that it was “quite possible” that Burns’s exposure to propane gas “could have hastened the onset of the stroke.” In November 1981, Burns filed a worker’s compensation claim against Hyman under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901-60 (1988), extended by District of Columbia Workman’s Compensation Act of 1928 (“DCWCA of 1928”). D.C.Code §§ 36-501 to 36-503 (1973) (repealed 1982).4

B. Procedural History

Because irregularities in the administrative process play a central role in our review of this case, a detailed description of the various ALJ and BRB proceedings is necessary.

1. Bound 1

In hearings held in December 1982 and January 1983, ALJ Phillip Lesser heard testimony from Burns, several of Burns’s coworkers, two medical experts, and an industrial hygienist. The principal question before the ALJ was that of causation. Although it was undisputed that Burns’s preexisting stenosis played a role in his stroke, “it is well settled that [under the LHWCA] an employer is liable for the consequences of a work-related condition which aggravates a preexisting condition.” Director, Office of Workers’ Compensation Programs v. Brandt Airflex Corp., 645 F.2d 1053, 1057 (D.C.Cir. 1981).

Burns contends that breathing propane on the job precipitated his stroke. He testified before the ALJ that when he stepped into the heated enclosure, “[t]he gas hit [him]”; he became “disoriented” and “had to get out.” He reported that while the ambulance attendants were escorting him downstairs, they remarked on an “awful odor of propane.”5 He introduced into evidence the [1559]*1559attendants’ logbook, which recorded that Burns had been “breathing propane gas.”

George Hindle, the former president of Burns’s union and himself a rodman for twenty-one years, testified that he had visited the site “[w]here Mr. Bums was working” on the day of his stroke, and noted a “particularly strong odor” of propane gas. Hindle explained that the odor got stronger “the closer you g[o]t to the tank[s].” On the other hand, James Owens, Burns’s foreman at the time of his stroke, testified that the area Burns had entered was not entirely airtight; gaps in the plastic sheeting, as well as stairway and elevator shaft openings imperfectly sealed with plywood, provided a measure of ventilation.

The medical experts propounded two quite distinct theories of the origins of Burns’s stroke. Hyman’s expert, Dr. John Keshishi-an, suggested that a small piece (“embolus”) might have broken off the pre-existing-plaque partially blocking Bums’s carotid artery. Keshishian theorized that such an em-bolus had travelled into one of the small blood vessels in Burns’s brain, there obstructing the flow of vital oxygen-carrying red blood cells.

Dr. Richard Schwartz, Burns’s expert, posited a different cause. He testified that propane is an “evacuant,” a substance that displaces oxygen in the blood. He explained that the narrowing of Burns’s carotid artery had greatly “reduc[ed] the amount of oxygen” flowing to Burns’s brain and left him particularly “sensitive to any change in the oxygen” level in his blood. Schwartz opined that inhaling propane “would have [had] a deleterious effect” on Bums, “as opposed to the ordinary individual who has normal carotid arteries and could quite likely tolerate a reduction in oxygen [] carrying capacity without any problems.” Schwartz concluded that the most likely explanation for Bums’s stroke was that breathing propane had displaced some oxygen from his blood, and combined with the substantial blockage of Burns’s carotid artery to produce a temporary “hypoxia,” or lack of oxygen, in his brain.6

Schwartz found Keshishian’s theory implausible because a cerebral embolism “develops ... like a bolt out of the blue,” with no warning signs. The development of Burns’s stroke, which involved an initial “disorientation,” then numbness in his arm and face, and finally partial paralysis of his left arm and leg after he walked off the job site, was inconsistent with Keshishian’s “embolism” theory. Schwartz also cited a recent study that found emboli to be an infrequent cause of strokes, accounting for only about 8% to 10% of incidents in the study group.

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41 F.3d 1555, 309 U.S. App. D.C. 400, 1994 WL 704815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-director-office-of-workers-compensation-programs-cadc-1994.