Rainey v. DIR., OFFICE OF WORKERS'COMPENSATION

517 F.3d 632
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 28, 2008
Docket07-0434-ag
StatusPublished

This text of 517 F.3d 632 (Rainey v. DIR., OFFICE OF WORKERS'COMPENSATION) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rainey v. DIR., OFFICE OF WORKERS'COMPENSATION, 517 F.3d 632 (2d Cir. 2008).

Opinion

517 F.3d 632 (2008)

Lorraine G. RAINEY, Executor of the Estate of Leo T. Rainey, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION, U.S. Department of Labor, and Electric Boat Corporation, Respondents.

No. 07-0434-ag.

United States Court of Appeals, Second Circuit.

Argued: December 19, 2007.
Decided: February 28, 2008.

*633 Carolyn P. Kelly (Amy M. Stone, of counsel), O'Brien, Shafner, Stuart, Kelly & Morris, P.C., Groton, CT, for Petitioner.

Kevin C. Glavin, Cutcliffe Glavin & Archetto, Providence, RI (on behalf of Electric Boat Corporation), Kathleen Kim, Division of Black Lung and Longshore Legal Services, Office of the Solicitor, U.S. Department of Labor, Washington, DC, for Respondents.

Before: CALABRESI, KATZMANN, and RAGGI, Circuit Judges.

KATZMANN, Circuit Judge:

The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., creates a presumption of causation: covered workers who suffer a harm that workplace conditions could have caused, aggravated, or accelerated benefit from § 920(a), which presumes, in the absence of substantial evidence to the contrary, that their claims for compensation fall within the regulatory scheme created by the LHWCA. 33 U.S.C. § 920(a). This case calls on us to address the nature of the evidence that an employer must introduce in order to rebut this presumption. We hold that where an ALJ finds that a medical opinion offered by an employer derives from a false factual premise and depends on discredited medical theories, it follows that the opinion cannot as a matter of law provide substantial evidence to rebut the § 920(a) presumption.

BACKGROUND

Leo T. Rainey worked on submarines as a welder for the Electric Boat Corporation from 1958 to 1967 and then again from 1972 to 1980. In 1980, Electric Boat transferred Rainey from the welding department to the tool crib, where he worked until he retired in 1995. Rainey's tenure at Electric Boat exposed him to asbestos. At times, the welders were required to *634 weld overhead, and they used asbestos blankets to protect themselves from the sparks. In addition, Rainey often worked alongside laggers while they installed asbestos covering to insulate pipes or removed old asbestos covering from pipes. Rainey also smoked tobacco from an early age until 1986.

Doctors diagnosed Rainey with lung cancer in March 2002. At that time, Rainey, then 73 years old, had a number of other health problems, including chronic obstructive pulmonary disease.

Rainey submitted a claim for permanent partial disability benefits based on his lung cancer pursuant to the LHWCA, 33 U.S.C. § 908(c)(23). Following an informal conference before the District Director of the Department of Labor's Office of Workers' Compensation Programs, Rainey's claim was referred to an administrative law judge (ALJ), Colleen A. Geraghty, for a formal hearing. The hearing commenced on December 9, 2003, but was continued until July 28, 2004 for additional discovery. Prior to the ALJ's decision in this case, Mr. Rainey died on January 21, 2005. On January 23, 2006, the ALJ released her decision and order denying benefits.

As the executor of his estate, Rainey's widow appealed the decision to the Benefits Review Board (BRB). The BRB affirmed in an unpublished order dated December 15, 2006, and this petition followed.

DISCUSSION

Our review is limited to whether the BRB made any errors of law and whether substantial evidence supports the ALJ's findings of fact. Barscz v. Director, Office of Workers' Comp. Programs, 486 F.3d 744, 749 (2d Cir.2007). Pursuant to the "substantial evidence" standard, "[i]f the decision of the ALJ is supported by substantial evidence, is not irrational, and is in accordance with the law, the decision must be affirmed." Pietrunti v. Director, Office of Workers' Comp. Programs, 119 F.3d 1035, 1040 (2d Cir.1997). In considering the substantiality of the evidence, we must canvass "the whole record," taking into account "whatever in the record fairly detracts from its weight." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

To recover under the LHWCA, Rainey's estate must demonstrate causation—i.e., that Rainey's lung cancer arose out of his employment at Electric Boat. 33 U.S.C. § 902(2). Section 920(a) of the codified Act creates a presumption that a claim for compensation comes within the provisions of the Act, and "inherent in this provision is the presumption that an injury is causally related to a worker's employment." Port Cooper/T. Smith Stevedoring Co., Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir.2000). To invoke this presumption, the estate must make out a prima facie case of causation by establishing both that Rainey "suffered harm, and that workplace conditions . . . could have caused, aggravated, or accelerated the harm." Am. Stevedoring Ltd. v. Marinelli, 248 F.3d 54, 64-65 (2d Cir.2001). Once a claimant makes this prima facie showing, "the burden shifts to the employer to rebut the presumption with substantial evidence that the alleged harmful workplace condition did not cause, contribute to, or aggravate the claimant's condition." Id. at 65. If the employer offers evidence sufficient to rebut the presumption, then it disappears from the case; "all relevant evidence must be weighed to determine if a causal relationship has been established, with [the] claimant bearing the ultimate burden of persuasion." Id.

What complicates Rainey's case is not just that he had a significantly increased risk of lung cancer—even without asbestos *635 exposure—due to his smoking history,[1] but also that he never developed symptoms of asbestosis. There exists some disagreement in the medical community concerning whether asbestos-attributed lung cancers are always associated with asbestos-induced lung fibrosis (known as asbestosis). Some, but not all, doctors believe that asbestos cannot cause lung cancer in the absence of asbestosis. Not surprisingly, Rainey and Electric Boat chose experts on opposing sides of this debate. Rainey presented a report and testimony from Dr. Martin Cherniack who asserted that the "general view" is that "asbestos is a carcinogen that directly induces lung cancer. The presence of fibrosis . . . is a marker of heavy exposure rather than an independent risk." In contrast, Electric Boat's expert, Dr.

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