Jones v. Director, Office of Workers' Compensation Programs

977 F.2d 1106
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 14, 1992
DocketNo. 91-1281
StatusPublished
Cited by2 cases

This text of 977 F.2d 1106 (Jones v. Director, Office of Workers' Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Director, Office of Workers' Compensation Programs, 977 F.2d 1106 (7th Cir. 1992).

Opinion

CUDAHY, Circuit Judge.

This is a petition to review an order of the Benefits Review Board (the BRB or the Board) under the Longshore and Harbor Workers’ Compensation Act (the LHWCA or the Act), 33 U.S.C. § 901 et seq. The BRB affirmed an Administrative Law Judge’s (AU’s) denial of petitioner Allan Jones’ claim under the LHWCA against Fraser Shipyards, Inc. (Fraser) and Aetna Casualty & Surety Company (Aetna) for certain benefits. We grant the petition and reverse the order.

I.

The basic facts are for the most part undisputed. On October 26, 1981, Jones sustained an injury to his lower back (involving a contusion of the sacroiliac) while in the course of his employment as a welder for Fraser at Superior, Wisconsin. Aet-na, the workmen’s compensation carrier, paid Jones compensation for four or five weeks of disability, and paid for his medical treatment, pursuant to the Act. Jones was laid off in April 1982 by Fraser but worked again in that employment in September 1983 and was then laid off again.

Since his injury at Fraser, Jones has continued to have lower back pain and intermittent numbness in both legs, particularly after any strenuous activity or standing or sitting for extended periods, and to receive medical and chiropractic treatment. A CT scan performed in October 1983 revealed a bulging intervertebral disc at the L5-S1 level. The treating orthopedic surgeon referred Jones to a neurosurgeon whose own CT-scan reading in November 1984 confirmed the orthopedic surgeon’s and found a bulging disc at L4-5 as well. The medical-opinion evidence, with the apparent exception of one doctor’s opinion, was in general agreement in relating Jones’ problems involving his lumbar and lumbosacral discs to the 1981 injury.

Since leaving Fraser, Jones has worked for several employers, including Great Lakes Equipment Company (Great Lakes), for whom he went to work in January 1985. Jones worked long hours for Great Lakes, driving a delivery truck and unloading supplies weighing up to one hundred pounds at their destination. His neurosurgeon explained to Jones in 1985 that he had three “options” for management of his symptoms: continuation of chiropractic treatment; further diagnostic procedures to verify the degree of nerve-root compression (with possible surgery depending upon the findings); and avoidance of lifting more than fifty pounds “as this appears to trigger ... [your] present problems_” Jones apparently chose to pursue the first option. Aetna paid for Jones’ medical and chiropractic treatment through March 1985, but declined to pay any benefit thereafter. Jones brought this suit seeking reimbursement for chiropractic and medical expenses incurred since that time.1

The AU found that the back condition for which the claimant has sought chiropractic and medical care since 1985 resulted in part from his 1981 injury at work and in part from a number of other causes, including overweight, poor conditioning and the exertion involved in subsequent employment and in other activities such as picking up firewood.

After setting forth his understanding of the legal standard for determining whether the subsequent work was an “intervening cause” such as to sever the causal link with the 1981 injury, the AU reasoned:

The claimant’s action in working as a deliveryman was neither unjustified nor misconduct. However, the testimony of [1109]*1109Dr. Freeman [a neurosurgeon] and the claimant tends to establish that the work worsened the original injury and that the claimant was negligent in performing that work because Dr. Freeman had suggested that one option for management of the claimant’s condition was for the claimant to refrain from lifting more than 50 pounds. Therefore, the claimant had reason to know that the loading and unloading of supplies weighing up to 100 pounds might cause further back problems. Moreover, the fact that the claimant sought frequent chiropractic treatment for relief of back pain in order to be able to continue with his employment at Great Lakes Equipment Company should have alerted him to the possibility that such work was unduly aggravating his back condition.

The AU acknowledged the medical evidence that there was “no basic underlying change in the back condition” caused by the 1981 injury, but reasoned that the work for Great Lakes brought on changes in the level of symptoms, requiring the treatment for which compensation is sought in the case before us. Further, the AU reasoned that there was “no evidence that the claimant’s usual shipyard work, which he had been [medically] released to perform, was as strenuous as his subsequent work at Great Lakes.” The AU therefore concluded that “the evidence establishes that the claimant’s work activities for Great Lakes Equipment was [sic] an intervening cause and that the employer is not liable for the medical and chiropractic bills incurred by the claimant after May 1985.”

The Board affirmed the decision of the AU, based on its conclusion that “substantial medical evidence supports the administrative law judge’s finding that claimant’s position at Great Lakes caused him to become symptomatic, and that it was the increased symptomatology which necessitated the medical treatment at issue in this case.” The Board did not, however, examine the basis for the AU’s conclusion that Jones’ work at Great Lakes constituted an intervening cause.

II.

With respect to questions of fact, both this court and the BRB sit in review of the AU’s decision. See Stevenson v. Linens of the Week, 688 F.2d 93, 96-97 (D.C.Cir.1982); Garvey Grain Co. v. Director, OWCP, 639 F.2d 366, 369-70 (7th Cir.1981). The scope of the Board’s review of the AU’s factual findings is specified by statute:

[T]hose findings shall be conclusive if supported by substantial evidence in the record considered as a whole.

33 U.S.C. § 921(b)(3). Our review is also for substantial evidence. See Symanowicz v. Army & Air Force Exch. Serv., 672 F.2d 638, 642 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 510 (1982); see also Freeman United Coal Mining Co. v. Anderson, 973 F.2d 514, 517 (7th Cir.1992) (Black Lung Benefits Act). In addition, the AU is required to resolve all doubts, factual as well as legal, in favor of the injured worker in order “to place the burden of possible error on those best able to bear it.” Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir.1986). The Ninth Circuit has cogently stated the logical consequence of the established rule of doubt-resolution:

Even after the substantial evidence is produced to rebut the statutory presump: tion [of liability] the employer still bears the ultimate burden of persuasion.

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