UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 01-60480 ____________
NEW ORLEANS STEVEDORES; SIGNAL MUTUAL ADMINISTRATION, LTD.,
Petitioners-Cross-Respondents,
versus
PEGGY IBOS, Surviving spouse of Bertrand Ibos, Jr.;
Respondent-Cross-Petitioner,
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,
Respondent.
Petition for Review of an Order of the Benefits Review Board
January 16, 2003
Before KING, Chief Judge, and JONES and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
This case is on review of a judgment of the United States Department of Labor’s Benefits
Review Board (the “BRB”), affirming a decision of an administrative law judge (the “ALJ”). The
ALJ held that New Orleans Stevedores (“NOS”) is liable for compensation owed to Bertrand and
Peggy Ibos (respectively, “Decedent” and “Claimant”) under the Longshore and Harbor Workers’ Compensation Act (the “LHWCA”),1 but is entitled to a credit against its total liability for the net
amounts Claimant received by way of settlements with two of Decedent’s earlier longshore employers
and their insurers.
Decedent worked for various steamship and stevedoring companies for a period spanning
nearly fifty years. During the Decedent’s last three periods of employment, he worked for Valor
Stevedoring Company (“Valor”), Anchor Stevedoring Company (“Anchor”), and, most recently,
NOS. When Decedent experienced respiratory problems which were subsequently diagnosed as
symptoms of mesothelioma caused by occupational exposure to asbestos, he stopped working and
filed a claim for disability benefits under the LHWCA. Decedent died due to metastatic mesothelioma
and Claimant, his widow, continued his disability claim and her own claim for survivor’s benefits,
naming Valor, Anchor, and NOS as the potentially responsible employers. Following referral of the
claim to the Office of Administrative Law Judges, Claimant entered into approved settlement
agreements with Valor and Anchor pursuant to § 8 (I), 33 U.S.C. § 908 (I), of the LHWCA.
Accordingly, Valor and Anchor, and their respective carriers, were dismissed from the present claim.
Claimant did not enter into settlement agreements with NOS.
In the case against NOS, the ALJ held that, because Decedent’s last period of injurious
exposure to asbestos occurred during his employment with NOS, NOS is the responsible employer
under the LHWCA. The ALJ then awarded Claimant temporary total disability benefits for
Decedent’s period of disability, to be followed by death benefits. Additionally, the ALJ held that
NOS is entitled to a credit for the net settlement proceeds paid to Claimant by Valor and Anchor for
1 Longshore and Harbor Workers’ Compensation Act of Mar. 4, 1927, ch. 509, 44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950.
-2- the same occupational injury that is the subject of this claim.
On appeal to the BRB, NOS and its insurance carrier, Signal Mutual Administration, Ltd.
(“Signal”), challenged the ALJ’s determination that NOS is the responsible employer. In a cross-
appeal, Claimant challenged the ALJ’s award of a credit to NOS for the settlement monies paid by
Valor and Anchor. The BRB affirmed both the ALJ’s determination that NOS is the responsible
employer and the ALJ’s decision to award a credit to NOS.
NOS and Signal now appeal the BRB’s judgment affirming the ALJ’s determination that NOS
is the responsible employer. Claimant and the Director of the Office of Workers’ Compensation
Programs, United States Department of Labor (the “Director”), urge affirmance of the BRB’s
responsible employer determination. On cross-appeal, Claimant challenges the BRB’s judgment
affirming the ALJ’s decision to grant NOS a credit for the settlements Claimant received from Valor
and Anchor. NOS and Signal respond that the credit was properly awarded.
We must review two aspects of the BRB’s judgment: (1) whether the BRB misapplied the
“last exposure rule,” in light of the medical-opinion testimony of record regarding the “latency
period” of mesothelioma; and (2) whether, in affirming the ALJ’s decision to award NOS a credit,
the BRB misapplied the general credit doctrine adopted in Strachan Shipping Co. v. Nash, 782 F.2d
513 (5th Cir. 1986) (en banc).
The BRB’s final order is subject to review in the United States Court of Appeals for the
circuit in which the injury occurred. 33 U.S.C. § 921 (c). We examine the BRB’s decisions for
errors of law to determine whether the BRB adhered to its scope of review. Presley v. Tinsley Maint.
Serv., 529 F.2d 433, 436 (5th Cir. 1976). Our review of the BRB’s factual findings is limited to
determining whether those findings are supported by substantial evidence on the record as a whole.
-3- Tampa Ship Repair & Dry Dock Co. v. Dir., OWCP, 535 F.2d 936, 938 (5th Cir. 1976). With
respect to issues of law, our review of the BRB’s rulings is de novo. Pool Co. v. Cooper, 274 F.3d
173, 177 (5th Cir. 2001).
The BRB’s views are not entitled to deference because it is not a policy-making agency.
Cooper, 274 F.3d at 177. We do, however, give deference to the Director's interpretations of the
LHWCA. Id. The exact amount of deference that we owe to any given interpretation by the Director
“‘will depend upon the thoroughness evident in its considerat ion, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it power to
persuade, if lacking power to control.’” Id. (quoting United States v. Mead Corp., 533 U.S. 218,
219, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140,
65 S.Ct. 161, 89 L.Ed. 124 (1944))).
I
NOS and Signal argue that the BRB misapplied the Cardillo “last exposure rule” because it
failed to conduct a proper rebuttal inquiry into the question of whether Decedent’s exposure to
asbestos while employed with NOS actually caused or contributed to Decedent’s mesothelioma.2
2 In occupational disease claims involving conditions caused by the cumulative effects of exposure over long periods of time, the “last exposure rule” identifies the liable party. The Department of Labor initiated this rule administratively, and it was first accepted for LHWCA claims by the Second Circuit in Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 144 (2nd Cir.1955) (involving claims for hearing loss suffered by employees exposed to injurious stimuli in their last employment), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). Pursuant to the Cardillo “last exposure rule”, the employer “during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upo n which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award.” Id. at 145. The rationale cited by the Second Circuit in adopting the rule was that, in light of the “present [poor] state of medical knowledge relating to these diseases,” it is an administratively superior method that avoids the complexities of apportionment. Id. at 144.
-4- The premise of NOS’s and Signal’s argument is that § 2 (2) of the LHWCA requires that, for an
employer to be held liable, the employee’s exposure to an injurious condition while working for that
particular employer must either cause or contribute to that employee’s compensable condition in
some demonstrable way. From this premise, NOS and Signal contend that the BRB erred when, in
its rebuttal inquiry, it rejected the medical-opinion testimony of record concerning the “latency
period” of mesothelioma which, according to NOS and Signal, suggests that there could not have
been a true causal link between Decedent’s exposure to asbestos while employed with NOS and the
development of Decedent’s mesothelioma. Specifically, NOS and Signal argue that they have met
their burden of showing that a true causal link does not exist in this case, because the medical
evidence of record demonstrated that the latency period for the development of mesothelioma is long
enough to suggest that Decedent’s development of mesothelioma began years before Decedent’s last
period of employment with NOS, and that any additional exposure to asbestos during that period had
no impact on the course of his disease.
First, we disagree with NOS’s and Signal’s premise that, for purposes of liability, § 2 (2) of
the LHWCA requires a true causal link between Decedent’s exposure while working for NOS and
the development of Decedent’s mesothelioma. Under § 2 (2), there are two prongs to the statutory
definition of a compensable “injury”: “[1] accidental injury arising out of and in the course of
employment, and [2] such occupat ional disease or infection [a] as arises naturally out of such
employment or [b] as naturally or unavoidably results from such accidental injury[.]” LHWCA
§ 2 (2), 33 U.S.C. § 902 (2) (emphasis added). The Director interprets the “arises naturally out of”
language of § 2 (2) to require only that the conditions of the employment be of a kind that produces
-5- the occupational disease. This interpretation is consistent with congressional intent, as it was first
interpreted by the Second Circuit in Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir. 1955). In
Cardillo, the Second Circuit found, as a matter of legislative interpretation, that Congress intended
full liability to rest on the last exposing employer, regardless of the absence of actual causal
contribution by the final exposure. Cardillo, 225 F.2d at 145.
We agree with Cardillo’s legislative interpretation. In the congressional hearings preceding
the LHWCA’s passage, an emplo yer representative suggested that the LHWCA should include a
provision limiting an employee’s total recovery against a particular employer to the same ratio as the
extent of the harm done during the period worked for that employer bore to the total disability. To
Provide Compensation for Employees Injured and Dependents of Employees Killed in Certain
Maritime Employments: Hearing before the House Judiciary Committee on H.R. 9498, 69th Cong.,
1st Sess. 72 (1926). 3 After discussion, those involved in the hearing accepted the employer
representative’s complaint that, without such a provision capping liability, a “last employer” would
be liable for the full amount of compensation, even if the duration of the injured employer’s
employment was so brief that the injury would probably not be medically attributable at all to that
“last employment.” Id. at 74-75; Cardillo, 225 F.2d at 145. The suggested provision was not,
however, incorporated into the LHWCA. We infer that Congress declined to adopt the suggested
provision because it realized the administrative difficulties certain to arise if such a provision were
incorporated into this section of the LHWCA. Cardillo, 225 F.2d at 145. As Cardillo recognized,
“[t]he nature of occupational diseases . . . make[s] it exceedingly difficult, if not practi cally
3 The suggested provision stated: “But only such proportion shall be compensated by the employer in whose employment disability begins as the period employed by such employer bears to the total period of the accumulation of the disease.”
-6- impossible, to correlate the progression of the disease with specific points in time or specific industrial
experiences.” Id. at 144. We therefore defer to the Director’s interpretation that § 2 (2)’s “arises
naturally out of” language requires only that the conditions of the employment be of a kind that
produces the occupational disease, because “Congress intended that the employer during the last
employment in which the claimant was exposed to injurious stimuli . . . should be liable for the full
amount of the award.” Id at 145.
Second, we agree with NOS and Signal that the BRB failed to articulate the appropriate legal
standard to be applied by an ALJ in its rebuttal inquiry of an occupational disease claim brought under
the LHWCA. The BRB reasoned that, in an occupational disease claim brought under the LHWCA,
an employer can rebut an employee’s prima facie case if that employer establishes that the claimant’s
exposure with that employer did not have the potential to cause the disease. Applying this standard,
the BRB held that NOS did not satisfy its burden of proving that it is not the responsible employer
on the basis of medical opinions concerning the “latency period” for the development of
mesothelioma because “t hese opinions do not establish that the asbestos exposure experienced by
decedent at NOS did not have the potential to give rise to mesothelioma.” Contrary to the BRB’s
reasoning, the issue on rebuttal is not whether an employer can prove that a particular exposure with
a particular employer did not have the potential to cause the disease. Neither is the issue on rebuttal
whether an employer can prove that there is no evidence of a true causal link between a particular
exposure and the development of the employee’s disease. Rather, we have held that, after it is
determined that an employee has made a prima facie case of entitlement to benefits under the
LHWCA, the burden shifts to the employer to prove either (1) that exposure to injurious stimuli did
not cause the employee’s occupational disease, or (2) t hat the employee was performing work
-7- covered under t he LHWCA for a subsequent employer when he was exposed to injurious stimuli.
Avondale Indus., Inc. v. Dir., OWCP [Cuevas], 977 F.2d 186, 190 (5th Cir. 1992).4 Thus, in the
present claim, the only issue the ALJ was to consider in its rebuttal inquiry was whether NOS proved
that exposure to asbestos did not cause Decedent’s mesothelioma, regardless of whether the exposure
Decedent experienced at NOS either caused or had the potential to cause Decedent’s mesothelioma.5
Although the BRB failed to articulate the applicable legal standard, we find there is substantial
evidence in the record as a whole to support the ALJ’s finding that Decedent died of mesothelioma
resulting from his overall occupational exposure to asbestos.6 NOS had an opportunity to present
4 In Cuevas, we held: “[A] claimant does not have to prove that his employer is liable. Once he has demonstrated a prima facie entitlement to benefits by showing that he ‘sustained physical harm and that conditions existed at work which could have caused the harm,’ he has established that his ‘exposure to injurious stimuli during employment covered under the [LHWCA], and there exists a compensable claim. Employer can then rebut this presumption by showing that exposure to injurious stimuli did not cause the harm . . . [or] that employee was exposed to injurious stimuli while performing work covered under the [LHWCA] for a subsequent employer.’” Cuevas, 977 F.2d at 190 (quoting Susoeff v. San Francisco Stevedoring Co., 19 BRBS 149, 1986 WL 66392 at *2 (Ben. Rev. Bd. Nov. 28, 1986)). 5 We note that two other major maritime circuits have rejected similar latency arguments in deciding asbestos-related claims under the LHWCA. See Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378, 386-87 (4th Cir. 2000) (rejecting the last employer’s latency argument and holding the last employer liable for the full amount of the claim); Lustig v. U.S. Dep’t of Labor, 881 F.2d 593, 596 (9th Cir. 1989) (reasoning that the latency argument “suggests an unwarranted change of the ‘last employer rule’ set forth in [Cardillo] . . . which change we decline to adopt” (internal citation omitted)). 6 The ALJ concluded that the “[m]edical evidence presented by Drs. Caputto, Martin, Abraham, M.D. Anderson, and Touro demonstrated that Claimant suffered from malignant mesothelioma related to occupational asbestos exposure.” The only testimony NOS presented to rebut the evidence that Claimant suffered from mesothelioma was that of Dr. Sandler, who testified that Claimant did not clearly suffer from mesothelioma. However, the ALJ was not impressed by Dr. Sandler’s opinion because Dr. Sandler is not a pathologist and because Dr. Sandler “did not take into consideration the overwhelming evidence of the pathologists who provided credible testimony and
-8- specific, comprehensive medical evidence disproving that Decedent’s mesothelioma was caused by
his exposure to any asbestos, but failed to do so.7 Thus, we hold that the BRB properly affirmed the
ALJ’s judgment that NOS did not meet its burden of disproving Claimant’s prima facie case.
II
Claimant argues that the ALJ’s judgment that NOS is entitled to credit against its liability for
the net amounts received by Claimant from the settling employers (Valor and Anchor) was an
inappropriate application of the extra-statutory credit doctrine adopted in Strachan Shipping Co. v.
Nash, 782 F.2d 513 (5th Cir. 1986) (en banc). It is also the Di rector’s position that the amounts
Claimant received from LHWCA settlements with Valor and Anchor are irrelevant to the amount
owed by NOS and should not reduce its liability. We agree that the BRB erred in affirming the ALJ’s
application of the Nash credit doctrine in this context.
The Nash credit doctrine allows credit for the amount of a prior scheduled award, against a
later scheduled award, based on a later injury to the same scheduled member, such as a leg. See
medical evidence in this case.” 7 This addresses the due process concerns raised by NOS and Signal, as well as its argument that the BRB inappropriately applied the last exposure rule as an “irrebuttable presumption.” First, the ALJ’s application of the last exposure rule did not prohibit genuine factual inquiry on the critical issues in this case. At the hearing before the ALJ, all parties were given the opportunity to adduce testimony, offer documentary evidence, and submit post-hearing briefs in support of their positions. Second, even though NOS and Signal argue that the last exposure rule is based on assumptions about the advances o f medical science which may no longer be true, NOS’s medical-opinion evidence concerning t he latency period between the inhalation of asbestos fibers and the manifestation of mesothelioma only validates the Director’s argument that the last exposure rule is still necessary for administering the statute. As the Director points out, the estimates of the latency period, ranging from ten to forty years, suggest that the “responsible” employer in the Decedent’s case may possibly have been any one of the forty-one longshore employers he worked for over the course of his entire career.
-9- Nash, 782 F.2d at 518-21. In Nash, the claimant sought compensation for successive, aggravating
injuries to his leg, a scheduled member under 33 U.S.C. § 908 (c). Nash recognized that the BRB,
in a series of its decisions, had developed an equitable credit doctrine to prevent the double
compensation that might result from the peculiarities of the “aggravation rule,” which requires an
employer to pay full compensation for an employee disability, even if the work-related injury simply
aggravated a preexisting disability sustained while working for a previous employer. Id. at 517-22.
Under the BRB’s credit doctrine, “where the worker has been actually compensated for disability to
the same member at a previous point in time,” the liability for the aggravation of that impairment
should be reduced by the amount the worker has received for a part of the overall scheduled
impairment. Id. at 518. Applying this credit doctrine, Nash affirmed the BRB’s judgment that the
claimant’s latest employer and its insurer (the defendants) should compensate the claimant for his
entire thirty-four percent permanent partial disability to his leg resulting from three knee injuries, but
that the ten percent compensation the claimant had actually received from a previous employer at an
earlier date should be subtracted from the total award. Id. at 522.
Unlike Nash, Claimant has not sought compensation for successive, aggravating injuries.
Rather, the settlements Claimant accepted were alternative to an entire award against either one of
the settling employers, Valor and Anchor, who could have been held liable for such an award if found
to be Claimant’s last responsible employer. Thus, the Nash credit doctrine does not apply in this
context, alternative liability for a single occupational injury, because the “aggravation rule” also does
not apply.8
8 For the proposition that NOS is entitled to a credit for payments of compensation made by other potentially liable employers in settlement of Claimant’s occupational disease claim, the BRB
-10- Moreover, even though Nash applied an extra-statutory credit doctrine to the successive-
scheduled-injuries context, we refuse to venture further outside the credit system provided in
§ 903 (e) in order to create a new extra-statutory credit doctrine in the context of this case. Had
Congress intended for a liable employer to receive a credit against its total liability for sums the
injured employee received by way of settlements under the LHWCA with previous employers,
Congress would have explicitly provided for such a credit. Section 3 (e) permits credit for any past
recovery, even against a different employer, “for the same injury, disability, or death” under “any
other workers’ compensation law” or under the Jones Act. 33 U.S.C. § 903(e) (emphasis added).
Section 3 (e) makes no mention of a credit being available for a prior recovery under the LHWCA
itself. Its legislative history indicates the reason. In 1984, Congress enacted the new § 3 (e) to alter
the result of the then-recent decision of United Brands Co. v. Melson, 594 F.2d 1068 (5th Cir. 1979),
thereby enabling liable employers to receive credit for recoveries an employee received from former
employers pursuant to a state workers’ com pensation law. See 130 Cong. Rec. 25905 (Sept. 18,
1984) (statement of Sen. Erlenborn) (“The offset would, therefore, apply . . . where the employee’s
nonlongshore claim is against an employer other than the one against whom he has filed a longshore
claim. Accordingly, the court’s decision on this point in Melson . . . is overruled.”).9 Congress did
cited Alexander v. Triple A. Machine Shop, 32 BRBS 40, 44-46 (1998), aff’d after remand, 34 BRBS 34 (2000), wherein the BRB held that the Nash general credit doctrine applies in this context. The Ninth Circuit recently reversed the BRB’s decision , holding that “denial of the credit is compelled by the purposes of the credit doctrine and 33 U.S.C. § 903 (e).” Alexander v. Dir., OWCP; Triple A Machine Shop, Inc., 297 F.3d 805, 809 (9th Cir. 2002). The court reasoned that “the aggravation rule was not in play, and hence the credit doct rine was not applicable.” Id. It further reasoned that “[a]pplying § 903 (e) against alternative settlement awards overzealously extends the provision beyond its intended purpose.” Id. 9 In Melson, we held that, because there was no provision in the LHWCA allowing a liable employer credit for recoveries paid to the employee by a different employer pursuant to state law, no
-11- not address the question of whether a liable employer can or should receive credit for LHWCA
settlements paid to the employee by former employers. Congress’ silence on this particular question,
we conclude, indicates that it did not intend for employers to receive such credits.10 We therefore
defer to the Director’s interpretation that the amounts Claimant received from LHWCA settlements
with other employers, before the determination that the disability and death were compensable and
that NOS is the liable employer, are irrelevant to the amount owed by NOS and should not reduce
its liability.
For these reasons, we hold that the BRB erred in affirming the ALJ’s judgment granting credit
to NOS for Claimant’s net settlement receipts from Valor and Anchor.
III
In conclusion, we AFFIRM the BRB’s judgment affirming the ALJ’s determination that NOS
is the responsible employer. We REVERSE the BRB’s judgment affirming the ALJ’s decision that
NOS is entitled to credit for Claimant’s net settlement receipts from Valor and Anchor, and
REMAND for proceedings that are not inconsistent with this opinion.
such credit was available. Melson, 594 F.2d at 1074-75. 10 See ITO Corp. v. Dir., OWCP [Aples], 883 F.2d 422, 425 (5th Cir. 1989) (reasoning that § 3 (e) has no application to prior recoveries under the LHWCA; it only applies when the prior compensation was paid under a state workers’ compensation provision or the Jones Act). Cf., e.g., Ceres Gulf v. Cooper, 957 F.2d 1199, 1205-07 (5th Cir. 1992) (reasoning that the several provisions of the LHWCA providing for the recoupment of overpayments out of an unpaid compensation otherwise payable, without provision for other forms of recoupments, demonstrates that there is no remedy available against the claimant for recoupment of overpayments where no further compensation is due).
-12- EDITH H. JONES, Circuit Judge, dissenting:
With due respect to my colleagues, I dissent from the decision to overturn the BRB’s
award of dollar-for-dollar credit to New Orleans Stevedores for the amounts paid in settlement to
Ibos’s widow by his previous employers Valor and Anchor. In consequence of the majority decision,
Mrs. Ibos recovers considerably more benefits than she would with a single application of LHWCA
compensation. The majority’s rationale is that the credit doctrine is “extra-statutory,” and although
this court approved the doctrine in a previous en banc decision,11 the majority will not “extend” the
doctrine to this allegedly distinct situation.
The majority, in my view, too lightly disregards Nash, which approved the BRB’s now
30-year old credit doctrine expressly because that rule assures fairness both to employees and
employers -- guaranteeing full reimbursement to the former while protecting the latter against double
payments of benefits. Although Nash arose from an aggravating injury, there is no persuasive reason
to distinguish last employer rule cases and aggravation rule cases. The difference between the names
is more a matter of identification than substance. Under both rules, the last employer to expose the
claimant to the cause of the injury or disease is responsible for the entire compensation award.12 As
this court has acknowledged, the last employer rule “can operate inequitably where a claimant worked
11 Strachan Shipping Co. v. Nash, 782 F.2d 513, 518-22 (5th Cir. 1986) (en banc). 12 In fact, under the last employer rule, the last employer need not be an actual cause, but simply a potential cause of the occupational disease. Avondale Indus., Inc., 977 F.2d at 190.
-13- only a minimal time for the last covered employer.” Avondale Indus., Inc. v. Director, OWCP, 977
F.2d 186, 190 (5th Cir. 1992). In aggravation rule cases “[t]he credit doctrine was developed to
prevent double reco veries where the worker has been previously compensated for the same
disability.” ITO Corp. v. Director, OWCP [Aples], 883 F.2d 422, 427 (5th Ci r. 1989) (emphasis
added). This is consistent with one of the primary objectives of LHWCA: “to protect employers who
are subjected to absolute liability by the Act." Louviere v. Shell Oil Co., 509 F.2d 278, 283 (5th Cir.
1975) (quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412, 74 S. Ct. 202, 206 (1953)). The
majority, however, is willing to allow a double recovery in this case because it nominally falls within
the last employer rule rather than the aggravation rule.13
In fact, one might reasonably read Cardillo itself, which originated the extra-statutory last
employer rule, to be an aggravation rule case. See Cardillo, 225 F.2d at 140-42 (claimants suffered
permanent hearing loss due to exposure while working for various employers); Avondale Indus., Inc.,
977 F.2d at 189 n.1 (stating that “the aggravation rule allows a complainant compensation where
work-related acoustic trauma aggravates or combines with a prior hearing impairment”). If Cardillo
is fairly read to represent an aggravation of an occupational injury or disease, then this court is bound
by Nash to apply the credit rule.
The majority reasons that the credit rule must be limited because it is “extra-statutory.”
That reasoning simply flies in the face of the Nash decision, which upheld the credit rule
notwithstanding its extrastatutory character. Moreover, the credit doctrine operates here to
13 In fact, the aggravation rule finds its origins in the last employer rule. Foundation Constructors, Inc. v. Director, OWCP [Vanover], 950 F.2d 621, 623 (9th Cir. 1991); see also Bath Iron Works Corp. v. Dir., OWCP, 244 F.3d 222, 228 (1st Cir. 2001) (stating that the aggravation rule “is really nothing more than a variation of the last employer rule”).
-14- ameliorate the dramatic consequences of another judicially created rule. The majority purports to
defend the last employer rule as if it had been approved by Congress, but this court has characterized
it as “a judicially created rule for allocating liability among employers in cases where an occupational
disease develops after prolonged exposure.” Avondale Indus., Inc., 977 F.2d at 190 (emphasis
added) (quotation omitted).
If these issues were questions of first impression, we might look at no more than the
statutory language of the LHWCA and might conclude that there is no justification for the last
employer rule or the credit doctrine. Given the wealth of precedent, however, we are not free to
roam. We are justifiably bound by a fifty-year old last employer rule, a thirty-year old credit doctrine,
a fifteen-year old en banc decision of this court (Nash) and ten-year old interpretations of the
foregoing (Avondale Indus. and Aples). Only by picking and choosing among the authorities does
the majority reach the patently inequitable result in this case.
I respectfully DISSENT.
-15-