Newport News Shipbld v. Parks

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,

v.
No. 98-1881
NAN PARKS; HERMAN PARKS;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

Petition for Review of an Order
of the Benefits Review Board.
(97-1192)

Argued: March 1, 1999

Decided: December 16, 1999

Before WIDENER and LUTTIG, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Melvin Mesnard, SEYFARTH, SHAW, FAIR-
WEATHER & GERALDSON, Washington, D.C., for Petitioner.
Gary Richard West, PATTEN, WORNOM & WATKINS, L.C., New-
port News, Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner, Newport News Shipbuilding and Dry Dock Company,
challenges the Benefits Review Board's decision upholding the award
of benefits to Nan Parks ("Claimant") under the Longshore and Har-
bor Workers' Compensation Act, 33 U.S.C. §§901-950, following the
death of her husband from an asbestosis-related lung cancer. We
affirm.

I.

Herman Parks ("Parks") worked in the Joiners and Sheet Metal
Departments of Newport News Shipbuilding and Dry Dock Company
("Newport News") from 1942-1945 and from 1961-1979 where he
was exposed to asbestos. For thirty-five years, Parks also smoked cig-
arettes. As early as the 1960's, Parks experienced breathing difficul-
ties, which were diagnosed over the years as bronchial congestion,
emphysema, and other pulmonary illnesses.

Parks retired in 1979 on non-occupational induced disability fol-
lowing a diagnosis of moderately severe chronic obstructive lung dis-
ease. In February, 1988, Parks was diagnosed with lung cancer and
subsequently died December 5, 1988.

Nan Parks, Herman Parks' widow, brought this claim under the
Longshore Harbor Workers' Compensation Act ("LHWCA") alleging
that her husband's lung cancer was caused in part by asbestos expo-
sure at Newport News. Following the first hearing, the administrative
law judge ("ALJ") found the causation evidence equal on both sides
and awarded benefits to Claimant based on the "true doubt rule." In
1993, the Benefits Review Board affirmed the decision. While the
case was on appeal to this Court, the United States Supreme Court
struck down the "true doubt rule" as violative of the Administrative

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Procedure Act which places the burden of proof on the proponent of
the claim. See Director, Office of Workers' Compensation Programs
v. Greenwich Collieries, 512 U.S. 267 (1994). In light of that ruling,
this Court remanded the case for reconsideration including the presen-
tation of additional evidence.

On remand, the ALJ denied benefits to Claimant, concluding that
he was unable to discern the applicable standard for a diagnosis of
asbestosis and that no evidence existed to support the proposition that
Parks' exposure to asbestos led to his fatal lung cancer. Joint Appen-
dix at 61. Claimant filed a motion to reconsider. Upon reconsidera-
tion, the ALJ reversed his decision and awarded benefits, finding that
Parks did have asbestosis and that this asbestosis did contribute to the
production of an ultimately fatal lung cancer. Joint Appendix at 68.
Newport News made a motion for reconsideration which was denied.
On appeal, the Benefits Review Board affirmed the ALJ's ruling and
this appeal ensued. For the reasons that follow, we affirm.

II.

This Court reviews the Benefits Review Board's decision affirming
the ALJ's decision to determine if the ALJ's findings are supported
by substantial evidence in the record as a whole, are rational, and are
in accordance with the law. See 33 U.S.C. §921(b)(3) (1986);
Gilchrist v. Newport News Shipbuilding & Dry Dock Co., 135 F.3d
915, 918 (4th Cir. 1998)(citations omitted). Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. Richardson v. Perales , 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938)). This Court defers to the ALJ's credibility determinations and
inferences if supported by substantial evidence even if more reason-
able conclusions might be drawn. Newport News Shipbuilding & Dry
Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988); Newport News
Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Com-
pensation Programs, 681 F.2d 938, 941 (4th Cir. 1982).

III.

Newport News takes issue with the ALJ's finding that Parks died
of an asbestos-related lung cancer when there was no evidence Parks

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had diffuse interstitial fibrosis indicative of asbestosis. In furtherance
of its position that Parks' lung cancer was attributable to cigarette
smoking instead of asbestos exposure, Newport News relies heavily
on the written reports and testimony of Dr. Craighead, the former
chairman of the committee established by the College of American
Pathologists/National Institute of Occupational Safety and Health
("CAP/NIOSH") to formulate criteria for the pathologic diagnosis of
asbestosis. These criteria were used by all parties as well as the ALJ
as the standard for asbestosis diagnosis.

Dr. Craighead testified that Parks did not have diffuse interstitial
fibrosis indicative of asbestosis because Parks did not have two or
more asbestos bodies located in, or adjacent to, the diffuse fibrosis as
required by the CAP/NIOSH criteria. He also testified that estimates
of fiber counts, such as those given by Claimant's experts, Drs. Rog-
gli and Maddox, are not the equivalent of a pathological asbestosis
diagnosis in establishing causation. Since Parks did not have asbesto-
sis, Dr. Craighead testified, his lung cancer was not asbestos-related.
Based on this testimony and similar evidence by other experts in the
field including other members of the CAP/NIOSH committee, New-
port News contends that the ALJ erred in finding that Claimant had
asbestosis. Without a diagnosis of asbestosis, Parks' lung cancer
could not be asbestos-related.

The record, however, contains substantial evidence to support the
ALJ's contrary conclusion. Claimant offered the testimony of Dr.
Victor Roggli and Dr. John Maddox, who both agreed that Parks had
asbestosis under the generally accepted CAP/NIOSH criteria and thus
had asbestos-related lung cancer. In addition, Drs. Roggli and Mad-
dox testified that they also employed the use of an experimental tech-
nique known as asbestos fiber counting to determine the quantity of
asbestos fibers and asbestos bodies in Parks' lungs. Finding the con-
centration of asbestos fibers in Parks' lungs to be high, Drs. Roggli
and Maddox concluded that a causal connection existed between
Parks' asbestos exposure and his lung cancer.

Newport News asserts that the ALJ should not have credited the
opinions of Drs. Roggli and Maddox because they improperly applied
the CAP/NIOSH criteria by not requiring the asbestos bodies to be
located in or near the fibrosis. Further, Newport News disparages any

4
use of asbestos fiber counting due to its experimental nature. In his
decision, however, the ALJ thoroughly discussed the reasons for cred-
iting the opinions of Dr. Roggli and Dr. Maddox over the opinion of
Dr. Craighead. The ALJ also acknowledged that asbestos fiber count-
ing was experimental, but noted that Drs. Roggli and Maddox used
it only to confirm their existing pathological diagnosis of asbestosis.

Claimant also offered three identical affidavits signed by Dr. Phil-
lip Pratt, Dr. Jerome Kleinerman, and Dr. Harold Aberman, members
of the CAP/NIOSH Committee that Dr. Craighead chaired. In the affi-
davits, the doctors stated that the criteria for diagnosis of asbestosis
do not require that the asbestos bodies be embedded within the
fibrous tissue. Newport News asserts that these affidavits should not
have been credited by the ALJ because they were written by an attor-
ney rather than the individual physicians and that they do not address
the issue of whether asbestos bodies have to be near the fibrosis.
While Newport News is correct in its assessment of the affidavits'
content, it fails to note that these affidavits were introduced as evi-
dence of the difference in opinion among members of the
CAP/NIOSH committee as to the interpretation of the criteria and not
as dispositive opinions on the ultimate issue. These affidavits, as
noted by the ALJ in his decision, were given little weight. Joint
Appendix at 66.

Claimant also introduced two narrative reports contradicting Dr.
Craighead's testimony from renowned pathologists Dr. Robert Fech-
ner and Dr. William Frable. These reports buttressed the opinions of
Drs. Roggli and Maddox regarding their interpretation of
CAP/NIOSH criteria and the validity of asbestos fiber counting.

Based on this record, therefore, we find substantial evidence for the
ALJ's decision to credit the opinion of Drs. Roggli and Maddox that
Claimant had asbestosis leading to a fatal lung cancer.

Next, Newport News vehemently objects that the ALJ credited the
opinions of certain physicians who were not members of the
CAP/NIOSH committee over the opinions of physicians who were
members. This argument is meritless. Membership on the
CAP/NIOSH committee is but one factor that the ALJ properly con-
sidered in determining which physician opinions to credit. A physi-

5
cian's mere membership on this committee, however, does not
necessarily elevate his or her opinion on the criteria for the diagnosis
of asbestosis over that of any other physician. We give due deference
to the ALJ's credibility assessments based on the testimony given and
the evidence presented. Tann, 841 F.2d at 543; see also National
Labor Relations Board v. Air Products and Chemicals, Inc., 717 F.2d
141, 145 (4th Cir. 1983).

Finally, Newport News attacks the ALJ's decision for a purported
failure to comply with the Administrative Procedures Act. It asserts
that the ALJ failed to explain adequately his reason for acceptance or
rejection of all probative evidence and argues that his opinion con-
tains unexplained inconsistencies and plain mistakes. Although the
ALJ's decision granting the motion for reconsideration and granting
benefits is not as extensive as the original decision, we find that it
adequately explains the acceptance or rejection of all probative evi-
dence as required. See v. Washington Metropolitan Area Transit
Authority, 36 F.3d 375, 384 (4th Cir. 1994). As for Newport News'
allegation that the ALJ's decision was replete with inconsistencies
and mistakes, we find this argument likewise to be unfounded and
lacking in merit.

IV.

We find that the ALJ's findings were supported by substantial evi-
dence in the record as a whole and were rational and in accordance
with the law. Accordingly we affirm the Benefits Review Board's
order affirming the ALJ's decision.

AFFIRMED

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