Bath Iron Works Corp. v. Fields

United States Court of Appeals
For the First Circuit

No. 08-2235

BATH IRON WORKS CORP.,

Petitioner,

v.

CLAIR MAYNARD FIELDS, et al.,

Respondents.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BENEFITS REVIEW BOARD

Before

Boudin, Gajarsa,* and Lipez,
Circuit Judges.

Stephen Hessert, Norman, Hanson & Detroy LLC, with whom
C. Lindsey Morrill was on brief, for petitioner.
Marcia J. Cleveland for respondent Clair Maynard Fields.

March 18, 2010

*
Of the Federal Circuit, sitting by designation.
 LIPEZ, Circuit Judge. The Longshore and Harbor Workers'

Compensation Act ("LHWCA" or "the Act"), 33 U.S.C. §§ 901-950,

establishes a uniform no-fault compensation scheme for covered

maritime workers who suffer disability or death in connection with

their employment. Enacted after a series of Supreme Court

decisions restricted the application of state workers' compensation

laws within the federal maritime jurisdiction, the LHWCA was

"designed to ensure that a compensation remedy existed for all

injuries sustained by employees on navigable waters, and to avoid

uncertainty as to the source, state or federal, of that remedy."

Calbeck v. Travelers Ins. Co., 370 U.S. 114, 124 (1962).

Section 20(a) of the LHWCA provides that certain

disabilities are presumed to be work-related "in the absence of

substantial evidence to the contrary." 33 U.S.C. § 920(a).

Relying on that provision, the Benefits Review Board affirmed an

award of disability benefits for respondent Clair Maynard Fields.

Fields's employer Bath Iron Works ("BIW"), a ship manufacturing

facility based in Bath, Maine, now petitions for review of the

Board's decision, arguing that it produced "substantial evidence"

to rebut the statutory presumption and, alternatively, that the

Board exceeded the scope of its authority in vacating an earlier

decision of the ALJ that rejected Fields's claim for benefits. We

disagree on both points and therefore deny the petition.

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 I.

Fields alleges that he became disabled while working for

BIW. It is undisputed for purposes of this proceeding that Fields

has been totally and permanently disabled since June 7, 2002, as

the result of a lower back condition that causes intense pain to

radiate through his left leg. At the onset of his disability, he

was sixty years old and weighed approximately 400 pounds.

Fields was a BIW employee from 1983 to 2002. For most of

that time, he worked as a pipefitter at BIW's main shipyard in Bath

and as a hose fabricator at the company's East Brunswick

Manufacturing Facility. He testified that, prior to 2002, he had

experienced a bout of lower back pain while working at the East

Brunswick facility in 1995. He attributed the pain to work he was

performing at the time, which required him to bend over a table

while conducting pressure tests on hoses. Fields sought treatment

for the pain from BIW's first aid staff and was prescribed anti-

inflammatory medication. BIW also altered Fields's work assignment

so that he was no longer required to work at the testing table.

Fields reported that his pain cleared up after one to two weeks and

that he experienced no other significant back pain, except for a

few transitory backaches, until 2002.

In 2001, Fields was transferred from the East Brunswick

Facility to the recycling department, which was located in the main

shipyard in Bath at the time. The recycling job required Fields to

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remove metal materials from large bins, which he accomplished by

bending over while supporting himself on the edge of a bin. On

April 26, 2002, while Fields was at work, he slipped on ice and

fell on his right side and right elbow. He testified that his back

began to hurt after the fall, but he "had no leg pain or nothing

unbearable." He did not report the incident to BIW's first aid

staff at the time.

Soon after Fields fell, BIW moved the recycling

department to a new location at the "North Stores." Fields

testified that he spent one to two weeks setting up the new work

area; he then began dividing his time between two separate tasks.

He spent eighty percent of his time at the North Stores sorting

materials while sitting at a bench. During the remaining twenty

percent of his time, Fields salvaged scrap metal for recycling near

the "north gate." Scrap metal would be "dump[ed] in the middle of

the floor" near the north gate, and Fields would "bend down on one

knee or bend over and pick stuff up, and haul it off, and load it

onto another dumpster to be hauled back to the North Stores." Most

of the materials were light enough for Fields to carry alone, but

he testified that some materials required two people to carry. In

contrast to the first recycling job, there was nothing in the north

gate area that Fields could use for support while he bent or

kneeled.

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 Fields's pain worsened around the same time he began

working near the north gate. He testified that his back pain began

to radiate through his left buttock, down the inside of his left

leg, and into his toe. Soon, the pain became so intense that

Fields had difficulty walking. He testified that he was barely

able to walk the one hundred yards between the north gate and the

pick-up point for his commute home; he would "have to stop and lean

on vehicles because of the pain." Two weeks later, he "was in such

pain [he] couldn't walk any more."

At the suggestion of BIW's Chief of Occupational

Medicine, Fields was placed out of work on June 10, 2002. He saw

a number of different physicians after that point, including two

board certified neurosurgeons, Dr. Rajiv Desai and Dr. Julius

Ciembroniewicz. The physicians concluded that the immediate source

of Fields's pain was a pinched or irritated nerve near the lowest

of his lumbar vertebrae. They explained that one of the apertures

through which root nerves exit the spinal canal had become

constricted, leading to the compression or irritation of the nerves

passing through that space. Although they described the

physiological origins of that "foraminal narrowing" in somewhat

different terms, it is sufficient for present purposes to say that

the physicians believed it was likely caused or accelerated by

degenerative osteoarthritis.

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 While Fields was undergoing testing, BIW controverted the

compensation claim on the ground that Fields's disability was

related to his weight and age rather than his employment. The

parties presented their evidence in a benefits hearing before an

Administrative Law Judge on May 25, 2005. The ALJ found that

Fields had advanced two separate theories of causation: "(1) the

fall at work on April 26, 2002 was a work-related injury that

resulted in low back-pain and could have caused his herniated disc,

and (2) he suffered a work-related aggravation of his underlying

back condition in June of 2002, resulting in the onset of disabling

radicular symptoms in his left leg."

After hearing the evidence, the ALJ denied Fields's claim

for benefits in a written decision dated December 13, 2005.

Pursuant to section 20(a) of the LHWCA, 33 U.S.C. § 920(a), the ALJ

held that Fields was entitled to a presumption that his injury was

causally connected with his employment at BIW. The ALJ also found,

however, that BIW had successfully rebutted that presumption by

producing substantial evidence that neither Fields's fall nor his

work sorting scrap metal near the north gate had caused or

aggravated his back condition. The ALJ then weighed the evidence

on the record as a whole and concluded that Fields had not

established by a preponderance of the evidence that his disability

was causally connected to his employment at BIW.

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 On appeal, a three-judge panel of the Benefits Review

Board vacated the ALJ's order. The Board found that BIW had not

produced substantial evidence to sever the causal link between

Fields's work sorting scrap metal and his disability. The Board

therefore concluded that BIW's evidence was legally insufficient to

rebut the section 20(a) presumption and that Fields's disability

was work-related as a matter of law. In light of its holding, the

Board found it unnecessary to address Fields's April 26, 2002 fall.

The case was remanded to the ALJ for further proceedings.

On remand, BIW asked the ALJ to find that Fields's back

condition was not work-related. The ALJ declined to do so, finding

that the Board had resolved the issue as a matter of law and that

the Board's mandate was binding. The ALJ then found that Fields

was permanently and totally disabled and awarded him $443.73 per

week in disability benefits.

BIW appealed the matter a second time, arguing that the

Board erroneously re-weighed the ALJ's factual findings in its

first decision. The Board rejected that argument, explaining that

its first decision was legal in nature. BIW did not challenge the

ALJ's findings as to the severity and permanency of Fields's

disability and the proper amount of benefits. The Board therefore

affirmed the benefits award. This petition for review followed.

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 II.

We have jurisdiction to review a final order of the

Benefits Review Board. 33 U.S.C. § 921(c). Our role is to examine

the Board's decision "for material errors of law or for

impermissible departure from the familiar 'substantial evidence'

rubric in connection with the Board's assessment of the hearing

officer's factual findings." Bath Iron Works Corp. v. U.S. Dep't

of Labor ("Knight"), 336 F.3d 51, 55 (1st Cir. 2003) (quoting

Barker v. U.S. Dep't of Labor, 138 F.3d 431, 434 (1st Cir. 1998));

see also Prolerized New Eng. Co. v. Benefits Review Bd., 637 F.2d

30, 35 (1st Cir. 1980).

A. Statutory Framework

When a claim for LHWCA benefits is controverted, it is

the claimant's burden to prove the requisite elements of coverage.

See Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 281

(1994). Among other things, the claimant must establish a "causal

nexus between [his] malady and his employment activities." Sprague

v. Director, OWCP, 688 F.2d 862, 865 (1st Cir. 1982) (internal

quotation marks and citation omitted); see also U.S. Indus./Fed.

Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 615-16 & n.10

(1982). Mustering evidence of causation can prove daunting,

especially in cases involving latent injuries and occupational

diseases. See Bath Iron Works v. Brown, 194 F.3d 1, 6 (1st Cir.

1999); Cadwallader v. Sholl, 196 F.2d 14, 18 (D.C. Cir. 1952)

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(Prettyman, J., dissenting). Congress has therefore created a

number of statutory presumptions to ease the claimant's burden.

Greenwich Collieries, 512 U.S. at 280.

One such presumption, set forth in section 20(a) of the

Act, is relevant here:

In any proceeding for the enforcement of a
claim for compensation under [the Act,] it
shall be presumed, in the absence of
substantial evidence to the
contrary . . . [t]hat the claim comes within
the provisions of [the Act].

33 U.S.C. § 920(a). Courts have long held that the presumption

that a "claim comes within the provisions" of the LHWCA includes,

a fortiori, a presumption that the worker's injury is causally

related to his employment. See Sprague, 688 F.2d at 865; Swinton

v. Kelly, 554 F.2d 1075, 1082 (D.C. Cir. 1976). Thus, once section

20(a) is properly invoked, the claimant need not rely upon further

proof of causation until the presumption is rebutted.

Courts have implemented the section 20(a) presumption

through a burden-shifting framework similar to that used in

employment discrimination cases. See Am. Grain Trimmers, Inc. v.

OWCP, 181 F.3d 810, 816-17 (7th Cir. 1999) (en banc). At the first

stage, the claimant must make out a prima facie case by showing

(1) that he suffered physical harm and (2) that a workplace

accident or workplace conditions could have caused, aggravated, or

accelerated the harm. Bath Iron Works Corp. v. Preston, 380 F.3d

597, 605 (1st Cir. 2004); Am. Stevedoring Ltd. v. Marinelli, 248

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F.3d 54, 64-65 (2d Cir. 2001). Once a claimant establishes a prima

facie case, he is entitled to a presumption that his disability is

compensable under the Act. Preston, 380 F.3d at 605. The burden

then shifts to the employer to produce "substantial evidence" to

rebut the presumption. Sprague, 688 F.2d at 865. If the employer

successfully carries that burden, the section 20(a) presumption

"falls out of the case," id. (internal quotation marks omitted),

and the ALJ must weigh all of the record evidence to determine

whether the claimant has established the necessary causal link

between the injury and employment.1 See Preston, 380 F.3d at 605;

Brown, 194 F.3d at 5. The ultimate burden of proof always lies

with the claimant. Greenwich Collieries, 512 U.S. at 281.

B. Analysis

Because of the nature of the Board's decision below, the

April 26, 2002 fall is not at issue here. The sole question is

whether there is a causal connection between Fields's disability

1
Although the cases refer to this framework in terms of
"shifting" burdens, the "shifts" do not necessarily correspond to
the order in which the parties present evidence at a benefits
hearing, nor does the framework suggest that a hearing before the
ALJ proceeds to steps two and three only after the ALJ has ruled on
the adequacy of the claimant's prima facie showing or of the
rebuttal evidence of the employer directed at the section 20(a)
presumption. The burden-shifting framework is "merely a sensible,
orderly way to evaluate the evidence," Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978) (discussing Title VII), in light
of the statutory presumption of causation. See Del Vecchio v.
Bowers, 296 U.S. 280, 285-87 (1935) (discussing the statutory
presumption set forth in section 20(d) of the LHWCA).

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and his working conditions in the BIW recycling department in May

and June of 2002.

BIW concedes that Fields made out a prima facie claim for

relief on the working conditions theory, triggering the presumption

that Fields's disability was work-related. See Preston, 380 F.3d

at 605. As the Board and the ALJ correctly recognized, BIW must be

held liable for the necessary payments under the LHWCA unless it

has produced substantial evidence to rebut the section 20(a)

presumption. 33 U.S.C. §§ 904, 920(a).

The ALJ held that BIW successfully rebutted the

presumption by presenting evidence that Fields's "work as a pipe

fitter did not play any significant contributing role in the

development of his osteoarthritis." The ALJ relied on the

following testimony from Dr. Ciembroniewicz:

A: My opinion is based on several facts.
First, I have been myself several times to
BIW, Bath Iron Works, with a purpose of
observing different physical activities of
BIW employees. I have observed several
times the job of a pipe fitter. It is
certainly a physically demanding job which
requires use of one's back, extremities,
but there are hundreds, as a matter of
fact over the years thousands, tens of
thousands of pipe fitters and they don't
claim that their work activity produces
arthritis of the back.

The gentleman here is 61 years old. He
had osteoarthritis because of his age and
second he has been morbidly obese which
played extremely important factor [sic.]
in accelerating his osteoarthritis. I
don't -- it is my opinion that his work as

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 a pipe fitter did not play any significant
contributing factor to development of his
osteoarthritis.

Q: And by that do you -- by that do you mean
you think it's more likely than not that
his disease would be the -- at the same
level now even if he hadn't worked as a
pipe fitter at Bath Iron Works but had a
less physically demanding job?

A: There is no doubt about it.

The Board rejected the ALJ's conclusion, emphasizing that

Dr. Ciembroniewicz and the ALJ failed to address whether Fields's

working conditions "render[ed] his pain symptomatic." As the Board

explained, "[i]f claimant's work caused his underlying condition to

become symptomatic or otherwise worsened his symptoms, claimant has

sustained a work-related injury." The concurring judge elaborated

by noting that Dr. Ciembroniewicz had addressed "only the disease

process, not whether the condition would have become symptomatic if

claimant had not been bending over or kneeling on the concrete

floor to sort scrap metal." Indeed, she pointed out, Dr.

Ciembroniewicz's only testimony regarding symptomatology was his

admission that strenuous physical activity can render a

degenerative condition symptomatic.

BIW asserts that the Board exceeded its authority by

substituting its own factual findings and credibility

determinations for the ALJ's. BIW is referring here to the Board's

circumscribed review powers. The Board is statutorily bound to

uphold the ALJ's findings of fact if they are supported by

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substantial evidence.2 See 33 U.S.C. § 921(b)(3); Jasinskas v.

Bethlehem Steel Corp., 735 F.2d 1, 3 (1st Cir. 1984). That

limitation, in turn, informs our review of the Board's decisions.

As part of our review for material errors of law, we "make certain

that the Board adhered to its statutory standard of review of the

ALJ." CNA Ins. Co. v. Legrow, 935 F.2d 430, 433 (1st Cir. 1991);

see also Knight, 336 F.3d at 55. If the Board exceeds the scope of

its authority, we may reverse. See Air America, Inc. v. Director,

OWCP, 597 F.2d 773, 778 (1st Cir. 1979); Burns v. Director, OWCP,

41 F.3d 1555, 1565 (D.C. Cir. 1994).

The question of what caused Fields's disabling back pain

is, of course, a question of fact. See Banks v. Chicago Grain

Trimmers Ass'n, 390 U.S. 459, 462 n.4 (1968). If the Board had set

aside the ALJ's ultimate finding at step three of the burden-

shifting framework that Fields had not proved by a preponderance of

the evidence that his pain was work-related, there might be some

2
It is important to note that the LHWCA "uses the same
standard -- 'substantial evidence' -- for two entirely different
purposes." 2 Richard J. Pierce, Jr., Administrative Law Treatise
§ 11.2 (5th ed. 2010). Here, we are talking about the Benefits
Review Board's standard of review. As noted, the Act also requires
the employer to produce "substantial evidence" of non-causation to
rebut the section 20(a) presumption. The two issues are not
identical. A commentator has observed, for example, that "it is
quite possible that the employer [could] present[] 'substantial
evidence' to rebut the presumption [at step two of the burden-
shifting framework], but that the ALJ could still make a finding
[at step three of the burden-shifting framework], supported by
'substantial evidence,' that the employee suffered a job-related
injury." Id.

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force to BIW's argument. But the Board focused on a different

question. It found fault with the ALJ's determination at step two

of the burden-shifting framework that BIW had produced sufficient

evidence to rebut the section 20(a) presumption. That

determination by the ALJ was a legal judgment, subject to plenary

review by the Board. See Preston, 380 F.3d at 606-07; Bath Iron

Works Corp. v. Director, OWCP ("Harford"), 137 F.3d 673, 675 (1st

Cir. 1998).

In effect, the requirement that the employer come forward

with "substantial evidence" of non-causation at step two to rebut

the presumption of causation sets up an "objective test," which

requires the employer to produce "not the degree of evidence which

satisfies the [ALJ] that the requisite fact [(non-causation)]

exists, but merely the degree which could satisfy a reasonable

factfinder." Allentown Mack Sales and Serv., Inc. v. NLRB, 522

U.S. 359, 377 (1998) (discussing judicial review of agency fact-

finding); see also Preston, 380 F.3d at 605 n.2 ("'Substantial

evidence' is 'such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.'" (quoting Sprague, 688

F.2d at 865)); ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 149 (2d

Cir. 2007) ("Courts and commentators are in general agreement that

proffered evidence is 'sufficient' to rebut a presumption as long

as the evidence could support a reasonable jury finding of 'the

nonexistence of the presumed fact.'" (quoting Wanlass v. Fedders

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Corp., 145 F.3d 1461, 1464 (Fed. Cir. 1998))). The determination

that the employer has (or has not) produced sufficient evidence is

"not dependent on credibility." Harford, 137 F.3d at 675; see also

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("In the

nature of things, the determination that a defendant has met its

burden of production [in a Title VII case] can involve no

credibility assessment."). BIW's claim that the Board improperly

displaced the ALJ's credibility findings is without merit.3 The

Board was entitled to independently examine the record and to

exercise its own judgment as to whether the substantial evidence

standard was met. Cf. Penobscot Air Servs., Ltd. v. FAA, 164 F.3d

713, 718 & n.2 (1st Cir. 1999).

The Board did precisely that when it determined that BIW

had not rebutted the presumption of causation. In the context of

section 20(a), the substantial evidence standard requires the

employer to "introduce 'such relevant evidence as a reasonable mind

might accept as adequate' to support a finding that workplace

conditions did not cause the accident or injury." Rainey v.

Director, OWCP, 517 F.3d 632, 637 (2d Cir. 2008) (internal

quotation marks and citation omitted). The Board held that BIW's

evidence was legally insufficient to meet that standard because it

3
Indeed, we have previously rejected the same argument on
materially indistinguishable facts. See Preston, 380 F.3d at 607
(holding that Board "did not usurp the ALJ's authority to make
findings of fact" when it concluded that BIW's evidence was legally
insufficient to rebut the section 20(a) presumption).

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simply did not address the cause of the relevant "injury" within

the meaning of the LHWCA -- Fields's disabling pain.

The Board's focus on the distinction between Fields's

osteoarthritis and his pain was sound. A claim for LHWCA benefits

can be based on a work-related activation or aggravation of the

employee's symptoms, even if the disease itself is not work-

related. As we explained in Gardner v. Director, OWCP, 640 F.2d

1385, 1389 (1st Cir. 1981), "[w]hether circumstances of [the

claimant's] employment combined with his disease so to induce an

attack of symptoms severe enough to incapacitate him or whether

they actually altered the underlying disease process is not

significant. In either event his disability would result from the

aggravation of his preexisting condition." See also Marinette

Marine Corp. v. OWCP, 431 F.3d 1032, 1035 (7th Cir. 2005) (The

LHWCA "does not require that a later injury fundamentally alter a

prior condition. It is enough that it produces or contributes to

a worsening of symptoms."); Gooden v. Director, OWCP, 135 F.3d

1066, 1069 (5th Cir. 1998) (holding that the ALJ "erroneously

focused on the origins of [the claimant's] underlying heart

condition, rather than on the ultimate heart attack").

In this case, Dr. Ciembroniewicz acknowledged that it is

"possible" for physical activity to trigger radiating pain in an

osteoarthritic individual. He did not go on to say that, in his

judgment, such a connection was unlikely in Fields's case. BIW

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claims in its reply brief that Dr. Ciembroniewicz "testified that

Mr. Fields's current symptoms are wholly the result of his severe

degenerative problems, which are the result of morbid obesity and

his age." But that is not what Dr. Ciembroniewicz said. He said

only that Fields's osteoarthritis was wholly attributable to weight

and age. He said nothing to suggest that Fields's disabling pain

was unrelated to his employment. In its decision vacating the

first decision of the ALJ, the Board fairly criticized the ALJ for

missing this critical distinction.4

4
Indeed, the ALJ's entire decision is fraught with
ambiguity on this issue. In finding that Fields had not proved his
case by a preponderance of the evidence (at step three of the
burden-shifting framework), the ALJ noted:

Neither Dr. Desai nor Dr. Ciembroniewicz [was]
specifically asked whether the Claimant's work during May
2002, when he did more kneeling and bending than in the
past, could have aggravated the underlying back condition
that ultimately became disabling by June 7, 2002. Since
BIW rebutted the section 20 presumption, the void in the
record left by this unaddressed question does not assist
the Claimant in meeting his burden of proving causation
by a preponderance of the evidence, and it is not
appropriate for the trier of fact to close evidentiary
gaps with his own lay speculation.

We are not certain from this discussion whether the ALJ's reference
to the lack of proof on causation refers to the causal link between
the working conditions at BIW and Fields's osteoarthritis, his
disabling pain, or both. Also, while the void in the record
referred to by the ALJ might have been harmful to Fields if he had
to meet his ultimate burden of establishing causation at step three
of the burden-shifting framework, it was fatal to BIW's case at
step two when it had to produce substantial evidence to overcome
the statutory presumption.

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 None of BIW's other evidence addressed the connection

between Fields's pain and his working conditions. Dr. Desai, like

Dr. Ciembroniewicz, admitted that "almost any activity, in theory,

could initiate symptoms if there's a disc herniation." He offered

no opinion about the likelihood of such a connection in Fields's

case. BIW's evidence was thus consistent with Fields's theory of

causation. Under such circumstances, a "reasonable mind" could not

conclude from the evidence that Fields's pain was unrelated to his

working conditions. See Preston, 380 F.3d at 606-07; Bath Iron

Works Corp. v. Director, OWCP ("Shorette"), 109 F.3d 53, 56 (1st

Cir. 1997).5 The Board properly identified this legal error in the

ALJ's determination that BIW had rebutted the section 20(a)

presumption and corrected it on appeal.

BIW resists this conclusion, arguing that the Board

erroneously required it to "rule out any possible causal

relationship between the claimant's employment and his condition."

Shorette, 109 F.3d at 56. That is not a fair reading of the

Board's decisions. The Board focused on whether BIW's evidence was

5
In Shorette, we held that evidence that the employee had
developed asbestosis prior to his maritime employment was
insufficient to rebut the section 20(a) presumption because it did
not address the employee's theory that subsequent exposure to
asbestos had aggravated his conditions. See 109 F.3d at 55-56.
Similarly, we held in Preston that a psychiatrist's opinion
regarding the cause of the employee's psychological symptoms was
insufficient to rebut the section 20(a) presumption because it did
not address the alleged connection between the employee's working
conditions and his physical symptoms. See 380 F.3d at 607.

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material to Fields's claim that the working conditions at BIW had

caused his disabling pain, not on the degree of certainty expressed

by the physicians. It noted that Dr. Ciembroniewicz and Dr. Desai

concentrated on the connection between Fields's working conditions

and his underlying disease, which the Board viewed as beside the

point. It further noted that when the physicians briefly addressed

the possible relationship between physical activity and

osteoarthritis-related pain, they acknowledged that the two are

sometimes linked. For whatever reason, the physicians never went

on to express an opinion about whether such a linkage was likely in

Fields's case. The ALJ's determination that BIW had rebutted the

presumption of causation was a legal error. The Board correctly

concluded, based on the evidence presented by BIW, that BIW had not

produced "substantial evidence" to rebut the presumption of

causation between Fields's working conditions and his pain. See

Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (en banc)

(holding that the presumption was not rebutted where the employer's

medical expert "was not able to say, one way or the other, either

as a reasonable medical certainty or with any other estimate of

probability, that [work activity] was not the factor bringing on

the [employee's] heart seizure").

PETITION DENIED.

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