Todd Pacific Shipyards Corp. v. Director, Office of Workers Compensation Programs, U.S. Department of Labor

914 F.2d 1317
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 8, 1990
DocketNo. 89-70309
StatusPublished
Cited by16 cases

This text of 914 F.2d 1317 (Todd Pacific Shipyards Corp. v. Director, Office of Workers Compensation Programs, U.S. Department of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Todd Pacific Shipyards Corp. v. Director, Office of Workers Compensation Programs, U.S. Department of Labor, 914 F.2d 1317 (9th Cir. 1990).

Opinion

WALLACE, Circuit Judge:

Todd Pacific Shipyards Corporation (Todd) appeals from the decision of the Department of Labor Benefits Review Board (Board), assessing liability against Todd for the asbestos-related death of a former employee, Picinich. Todd contends that the Board erred in reversing the Department of Labor Administrative Law Judge’s (AD) ruling that former employer Lockheed Shipbuilding Company (Lockheed), rather than Todd, was liable to Pici-nich. Todd argues that the Board misapplied the “last responsible employer” rule which our circuit has used to determine which of an employee’s employers is liable under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (Act). The Board had jurisdiction over this case pursuant to 33 U.S.C. § 921(b)(3). We have jurisdiction over this timely appeal pursuant to 33 U.S.C. § 921(c). We reverse.

I

Lockheed employed Picinich as a pipefit-ter for various periods between 1957 and 1972 and from 1974 to January 1981. It is undisputed that during that time Picinich suffered significant exposure to asbestos. Todd employed Picinich for various periods between 1956 and 1973 and from February [1319]*13191981 to November 1981. During his final stint at Todd, Picinich worked aboard the U.S.S. Reasoner, a ship which had undergone an asbestos removal procedure.

In September of 1981, Picinich visited his family doctor complaining of an upper respiratory infection and cough. When this condition persisted, Picinich’s family physician referred him to a respiratory specialist who made a tentative diagnosis of lung cancer. This diagnosis was confirmed by a bronchoscopy and lung biopsy. Thereafter, Picinich’s health rapidly deteriorated, and he died the following year. The autopsy report showed, among other things, that Picinich had suffered from asbestosis of the lungs. Neither Todd nor Lockheed dispute Picinich’s cause of death.

Prior to his death, Picinich had filed a claim for compensation under the Act against Todd, Lockheed and other employers who have since been dismissed from the case. Upon his death, Picinich’s wife, Johanna, proceeded with the claim, seeking widow’s benefits under the Act. After a three day hearing, the AU found that Johanna was entitled to death benefits. He also concluded that Lockheed was the responsible, and therefore liable, employer. Lockheed appealed that determination and in a published Decision and Order dated May 31, 1989, the Board reversed the ALJ’s finding that Lockheed was the last responsible employer and instead assigned that status to Todd.

We review Board decisions “for errors of law and for adherence to the statutory standard governing the Board’s review of the [AU’s] factual determinations.” Bumble Bee Seafoods v. Director, Office of Workers’ Compensation Programs, 629 F.2d 1327, 1329 (9th Cir.1980) (Bumble Bee Seafoods); King v. Director, Office of Workers’ Compensation Programs, 904 F.2d 17, 18 (9th Cir.1990). Statutory direction requires the Board to review the AU’s findings for “substantial evidence.” 33 U.S.C. § 921(b)(3); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir.1983) {Black) (“The [Board] must accept the AU’s findings unless they are contrary to the law, irrational, or unsupported by substantial evidence.”), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984). In order to determine whether the Board has complied with this standard, we must “conduct an independent review of the administrative record.” Bumble Bee Seafoods, 629 F.2d at 1329.

II

The only issue we need address on this appeal is whether Todd or Lockheed must assume the liability for Picinich’s asbestos-related death. When two separate employers covered by the Act may be responsible for a work-related injury or disease, we have held that

Congress intended that the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon 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.

Black, 717 F.2d at 1284, quoting Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.) (emphasis added), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955); Lustig v. United States Department of Labor, 881 F.2d 593, 596 (9th Cir.1989); Kelaita v. Director, Office of Workers’ Compensation, 799 F.2d 1308, 1311 (9th Cir.1986).

Applying this standard, the AU found that Picinich’s exposure to asbestos while working aboard the Reasoner “was minimal,” and therefore determined that Pici-nich had not been exposed to “injurious stimuli” at Todd. Because the evidence of injurious exposure to asbestos at Lockheed was uncontroverted, the AU concluded that Lockheed was the responsible employer.

The Board reversed the decision of the AU and shifted the responsibility for the payment of benefits to Todd. In doing so, the Board held that the AU’s finding of only minimal exposure to asbestos at Todd was supported “by the relevant evidence” in the record. However, the Board concluded that because Picinich was exposed to some asbestos while working for Todd in 1981, by definition he was “exposed to injurious stimuli.” Our task is to resolve these conflicting interpretations concerning when [1320]*1320an employee is exposed to “injurious stimuli” for purposes of the last covered employer rule.

Although neither the Board nor Lockheed discuss our decision in Black, it controls our resolution of this issue. In rejecting the employer’s argument that the aggrieved worker must prove that his disease was caused entirely by the covered employer, we stated in Black: “All that must be proved is that the covered employer exposed the worker to injurious stimuli in sufficient quantities to cause the disease." 717 F.2d at 1286 (emphasis added). Thus, under our decision in Black, minimal exposure to offensive stimuli at a place of employment is not sufficient to place responsibility on a covered employer in the absence of proof that exposure in such quantities had the potential to cause his disease.

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914 F.2d 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-pacific-shipyards-corp-v-director-office-of-workers-compensation-ca9-1990.