Carswell v. E. Pihl & Sons

United States Court of Appeals
For the First Circuit

No. 19-1630

JEFFREY G. CARSWELL; HEINZ ERIKSEN; SVENNING TVEDE JUHL,

Petitioners,

v.

E. PIHL & SONS; TOPSOE-JENSEN & SCHROEDER LTD.;
DANISH CONSTRUCTION CORPORATION; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,

Respondents.

PETITION FOR REVIEW OF AN ORDER OF THE
BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

Before

Lynch, Lipez, and Thompson,
Circuit Judges.

Ian Anderson, for petitioners.
Matthew W. Boyle, Attorney, U.S. Department of Labor, Office
of the Solicitor, with whom Kate O'Scannlain, Solicitor of Labor,
Barry H. Joyner, Associate Solicitor, Kevin Lyskowski, Deputy
Associate Solicitor, Mark Reinhalter, Counsel for Longshore, and
Gary K. Stearman, Counsel for Appellate Litigation, were on brief
for respondent Director, Office of Workers' Compensation.
Sarah B. Biser, with whom Fox Rothschild LLP was on brief,
for respondent E. Pihl & Sons.

May 27, 2021
 THOMPSON, Circuit Judge. In 1968, a United States

military aircraft carrying nuclear weapons crashed near Thule,

Greenland, releasing radioactive materials into the area. In the

aftermath, military and civilian personnel assisted in the cleanup

efforts. In 2010, some of the civilian personnel (Petitioners)

filed claims for compensation under the Defense Base Act, alleging

that they were exposed to plutonium radiation while working on the

cleanup, leading to the development of various illnesses.

Following a series of extensive evidentiary hearings, an

Administrative Law Judge ("ALJ") denied Petitioners' claims,

finding that they did not establish a causal connection between

their illnesses and the alleged plutonium exposure. Petitioners

appealed to the Benefits Review Board, which affirmed. We now

deny the petition for review.

I. Background

On January 21, 1968, a United States Air Force B-52

bomber carrying four nuclear weapons crashed eight miles from the

Thule Airbase in Greenland. The crash destroyed the nuclear

weapons on board, releasing radioactive materials including

plutonium. Soon thereafter, the Air Force began a cleanup effort

dubbed operation "Crested Ice," wherein military personnel

extracted contaminated debris, snow, and ice from the crash site

and Danish civilian personnel assisted in packaging and

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transporting the materials out of Greenland. The operation

spanned from January to September 1968.

In anticipation of the cleanup effort, the United States

military instituted various precautions for the workers. The

military established a "hazard control" or "zero line" near the

crash site, which indicated the last point at which radiation

levels remained at zero. The military then cordoned-off the "hot

zone" where radiation levels existed. Danish civilian personnel

were not allowed to enter the hot zone, and the United States

military personnel who did enter the hot zone wore protective gear

and were decontaminated upon their return.

The United States military then began the cleanup

operation which consisted of three phases. During Phase I, United

States military personnel collected debris from the crash site,

returned it to the Thule Airbase, and packed it into drums and

large containers. Phase II consisted of the removal of

contaminated ice and snow from the hot zone, transportation of the

ice and snow to the base, and the sealing of the materials in large

metal tanks. During this phase, United States military personnel

worked in the hot zone and used a variety of equipment to move the

snow and ice. They then loaded the snow and ice into plywood

boxes and then onto trucks which took the boxes to a material

transfer point on the zero line. Once on the zero line, military

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personnel transferred the boxes to a different set of trucks driven

by Danish civilian employees. The Danish employees then returned

to Thule Airbase with the materials onboard. At the base, airmen

transferred the contaminated snow and ice into modified fuel tanks

inside a hangar. Once the tanks were full, employees welded them

shut and moved them to another area known as the "tank farm."

Finally, Phase III consisted of transferring the melted snow and

ice to smaller tanks and transporting them to the United States by

ship.

Petitioners participated in the cleanup efforts as

civilian employees of the now-defunct Danish Construction

Corporation ("DCC").

A. The ALJ Proceedings

In 2010, Petitioners filed claims under the Defense Base

Act ("DBA"), an extension of the Longshore and Harbor Workers'

Compensation Act ("LHWCA"), seeking compensation for medical

conditions that they allegedly developed as a result of their

exposure to plutonium radiation at Thule, arising out of and in

the course of their employment with DCC. Since DCC was no longer

operational in 2010, Petitioners filed their claims against two

constituent companies: E. Pihl & Sons ("E. Pihl") and Topsoe-

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Jensen & Schroeder Ltd. ("Topsoe-Jensen") (collectively,

"Respondents").1

In response to the Petitioners' claims, the Director of

the Office of Workers' Compensation Programs ("Director") joined

the claim proceedings. Petitioners objected to the Director's

participation but to no avail. In response to their objections,

the ALJ explained that 20 C.F.R. § 702.333(b) explicitly authorizes

the Solicitor of Labor's designee -- in this case, the Director of

the Office of Workers' Compensation Programs ("OWCP") -- to "appear

and participate in any formal hearing held pursuant to these

regulations on behalf of the Director as an interested party."

The ALJ rejected Petitioners' arguments a second time, explaining

that the Director's participation was especially warranted in this

case because E. Pihl had filed for bankruptcy during the litigation

and thus any compensation awarded would potentially be paid from

the Longshore Special Fund.2

E. Pihl was the only company that participated in the
1

proceedings. Topsoe-Jensen refused to accept service.
2 The Special Fund is part of the LHWCA's compensation
scheme and is ultimately administered by the Secretary of Labor.
Most importantly for our purposes, the LHWCA permits the Secretary
to compensate employees with money from the Special Fund in cases
where an employer's insolvency precludes payment from the
employer. B.S. Costello, Inc. v. Meagher, 867 F.2d 722, 724-25
(1st Cir. 1989); 33 U.S.C. § 918(b) (stating that the Director may
pay an award from the Special Fund "where judgment cannot be
satisfied by reason of the employer's insolvency").

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 Following months of sparring, the ALJ held a series of

extensive hearings beginning on December 4, 2012, wherein the

parties presented evidence, made arguments, and resolved a host of

procedural and evidentiary issues. It was also during these

hearings that E. Pihl filed for bankruptcy in Denmark.

Notwithstanding, E. Pihl's counsel continued participating in the

proceedings through the close of the evidentiary record.

During the evidentiary hearings, the parties presented

significant amounts of evidence primarily consisting of testimony

from the Petitioners and the testimony and reports of several

experts and fact witnesses. We recount the most relevant evidence

below.

i. Petitioners' Testimony

Petitioners Jeffrey G. Carswell, Heinz Eriksen, and Bent

Hansen 3 took the stand to explain their roles in the cleanup

operation and describe their medical conditions. Carswell

testified that he worked at the Thule Airbase as a shipping clerk.

During the cleanup, his position required him to assist with the

preparation of descriptive labels that were then attached to the

sealed drums and tanks containing contaminated snow and ice from

3Bent Hansen passed away on October 23, 2019. On
January 8, 2021, this court granted counsel's motion to substitute
Hansen with his son, Svenning Tvede Juhl, as his personal
representative.

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the crash. He was also responsible for the logistics of shipping

the closed tanks to the United States and, as a result, frequently

went to the tank farm (the area where the sealed tanks were held),

although he did not handle the tanks himself. Carswell explained

that military and civilian personnel worked closely together on

the base and that he traveled near the crash site on several

occasions. Carswell also explained that he frequently added ice

from a nearby fjord to his drinks while working on the cleanup.

Carswell developed a series of stomach and esophageal issues in

1984 and has undergone several surgeries. 4 He also developed

thyroid issues in 2005.

Eriksen, for his part, worked as a fireman at the Thule

Airbase. During the cleanup operation, he observed the welding

of the tanks which contained contaminated snow and ice and put out

fires that resulted from the welding. Eriksen explained that when

he worked in the hangars, the floor was often wet with, ostensibly,

contaminated melted snow and ice from the crash site and that a

fog formed in the hangar when the snow and ice were transferred

into the tanks. Eriksen witnessed, and put out, several fires

while working on the cleanup. He stated that he was diagnosed

4 Carswell suffers from various stomach- and
esophageal-related ailments. Chief among them, he has been
diagnosed with stomach cancer and Barrett's esophagus.

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with kidney cancer and had surgery to remove his tumorous left

kidney in 2005.

Hansen worked as a carpenter at the airbase. During the

cleanup, he constructed the "scoops" that military personnel used

to remove material from the crash site and also built the chutes

that personnel used to funnel snow and ice into the fuel tanks.

Like Eriksen, Hansen explained that when he built or delivered

materials, the hangar floor was covered with water from the melting

contaminated ice and snow, and there was often a fog in the hangar

during the tank-filling process. Additionally, Hansen witnessed

at least three fires in Hangar #2, which were caused by the

interaction between the heat from the welding and the petrochemical

residue in the tanks. On occasion, Hansen also brought timber to

the tank farm. Hansen was diagnosed with kidney cancer and had

his left kidney removed in 2002.

ii. Battle of the Experts

Petitioners, E. Pihl, and the Director also offered

several expert witnesses and reports on the central issue of

whether there was a causal nexus between Petitioners' alleged

exposure to plutonium radiation and their respective illnesses.

E. Pihl presented the testimony of four experts and one

fact witness. We begin with Dr. Lynn Anspaugh. Dr. Anspaugh

testified as an expert in the field of radiation dosimetry -- that

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is, the science of measuring radiation exposure. In addition to

testifying, Dr. Anspaugh submitted a thorough report concluding

that, given Petitioners' responsibilities at Thule, it is "likely"

that the Petitioners "did not receive any dose [of radiation] from

the cleanup activities." At the hearing, Dr. Anspaugh explained

that plutonium radiation -- which mostly emits alpha particles --

cannot penetrate most materials, including a piece of paper or

skin. Accordingly, given the physical properties of plutonium

radiation, and the type of work Petitioners performed, if the

Petitioners had been exposed to plutonium at all, the exposure

would have been extremely small. Moreover, Dr. Anspaugh

calculated that if Petitioners had been exposed, their radiation

dose would not have exceeded a small fraction of the radiation

dose humans generally receive from one year's exposure to

background radiation in their everyday lives.

Dr. Fred Mettler also testified as an expert and

submitted a report. Dr. Mettler is a physician in Radiology and

Nuclear Medicine at the New Mexico Federal Regional Medical Center,

Professor and Chair Emeritus of the Department of Radiology and

Nuclear Medicine at the University of New Mexico, and an expert in

the effects of plutonium radiation on the human body. Based on

his extensive experiences and relevant scientific authority, he

explained that Petitioners' illnesses are simply not caused by

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plutonium exposure. Relying on his expertise and authoritative

scientific sources, he explained that plutonium radiation exposure

had been extensively studied and that "if you're going to be

looking for cancers from plutonium, you're going to look in . . .

the liver, and skeleton, and lung." Even more, Dr. Mettler

explained that "there is no association between plutonium and

kidney or stomach cancer." In his view, there was good reason for

that conclusion based on both the physical properties of plutonium

particles and because plutonium exposure typically occurs through

inhalation and would, therefore, not affect the kidney or stomach.

He also explained that the ingestion of plutonium, on the other

hand, presented few concerns because plutonium is very insoluble

and, therefore, cannot enter the bloodstream, and also passes

through the stomach quickly. He reiterated that plutonium has not

been linked to stomach or kidney cancer even after significant

exposures over long periods of time. Finally, he concluded that

the likelihood that Petitioners' cancers were not due to plutonium

exposure was higher than 99.9%.

Dr. Mettler also opined on Carswell's thyroid issues,

explaining that the dose of radiation required to make a thyroid

non-functional would result in a much higher dose to the lungs,

which would prove fatal. Therefore, in his opinion, Carswell's

thyroid issues were "absolutely not" related to radiation.

-10-
 E. Pihl also presented the expert testimony of Dr. Paul

Russo. Dr. Russo is an attending surgeon in the Urology Service

at the Memorial Sloan-Kettering Cancer Center and is also a

professor of Urology at the Weill Cornell Medical College. His

research and clinical work focus on kidney cancer. In his report,

he explained that he was tasked with reviewing the opinion of

Petitioners' expert, Dr. Albert Robbins, concerning Eriksen's and

Hansen's kidney tumors and cancers. After reviewing Petitioners'

medical records, Dr. Russo concluded that it was not possible to

determine the etiology of Eriksen's and Hansen's kidney tumors,

and although Dr. Robbins linked their kidney issues to plutonium

exposure, it was "equally if not more probable that [Petitioners

had] sporadic renal tumors" that are common across the world.

Moreover, Dr. Russo explained that specifically for Eriksen, his

history as a heavy smoker "could have easily been a causative

factor in the formation" of the tumor.

Next up is Dr. Allen Turnbull, emeritus attending

surgeon and member of the Memorial Sloan-Kettering Cancer Center

and its Gastric and Mixed Tumor Surgery Service. His work focuses

on general and thoracic surgical oncology and critical care

medicine. Testifying as an expert, Dr. Turnbull explained that

Carswell's stomach cancer and esophagus issues were likely not

caused by exposure to plutonium. Dr. Turnbull testified that

-11-
assuming Carswell had stomach cancer and esophagus issues (which

he, based on Petitioners' proffered evidence, described as

Barrett's esophagus), those conditions were extremely unlikely to

be related to plutonium exposure. Dr. Turnbull explained that it

was more likely than not that his stomach cancer was caused by an

H. pylori infection or acid reflux -- two common causes of stomach

cancer. Dr. Turnbull further explained that plutonium ingestion

is unlikely to have any ill effect on the stomach because plutonium

particles pass through the stomach quickly and because the cells

of the stomach lining are replaced every seven days.

E. Pihl also presented the fact testimony of Dr. Knud

Juel. 5 Dr. Juel works for the Southern Danish University's

National Institute for Public Health. Dr. Juel has a master's

degree in statistics and a Ph.D. in epidemiology and has conducted

several epidemiological studies concerning the health effects of

the aircraft crash in Thule, including his Ph.D. thesis and three

published articles. Dr. Juel compared DCC workers in Thule during

the cleanup to those workers who worked at Thule before the crash

and after the cleanup ended. The study concluded that there was

no difference in illness or mortality rates between the DCC workers

As an employee of the Danish government, Dr. Juel was
5

prohibited from testifying as an expert witness.

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who were at Thule during the cleanup and the DCC workers who were

at Thule at other times before or after the cleanup.

Petitioners, however, produced experts of their own.

Drs. Albert Robbins, Graeme Edwards, and Frank Barnaby all agreed

that Petitioners' illnesses were caused by their work at Thule.

Dr. Robbins is a medical doctor who specializes in

preventive, occupational and environmental medicine. He submitted

a report in support of Hansen and Eriksen. In both reports, Dr.

Robbins asserted, without much support, that after reviewing their

medical records, and reading their statements concerning their

involvement in the clean-up operation, it was reasonably probable

that each of their kidney tumors and diagnosed cancers were

associated with the risk of plutonium inhalation. Dr. Robbins did

not offer live testimony.

Next up, Dr. Edwards. Dr. Edwards is a general

practitioner with interests in Dermatology, Obstetrics,

Gynecology, and Fertility issues. He was also Carswell's treating

physician "for several years for a number of medical conditions."

Dr. Edwards submitted a one-page letter stating that Carswell

suffered from hypothyroidism since 2005, and that there is a

"reasonable degree of probability that his hypothyroidism is

attributable to the long term effects of exposure to such

radiation." Dr. Edwards did not offer live testimony either.

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 Together, Petitioners also provided the testimony, and

report authored by Dr. Frank Barnaby. Dr. Barnaby has a Ph.D. in

nuclear physics and has worked extensively in that field. He

submitted a report and testified as to the general properties of

nuclear weapons, plutonium, and how much plutonium he believed was

dispersed in the Thule crash. In his report, he concluded that

"[p]articipation in search and rescue and/or 'clean-up'

operations, in the manner described by the former Thule workers,

would have seriously exposed them to the risks of plutonium

inhalation and the long-term development of cancer."6

Finally, the Director submitted the reports of

Dr. Jerome Siegel, a specialist in occupational and internal

medicine, and a certified medical examiner. Dr. Siegel examined

the Petitioners and submitted written reports for each one of them

as an independent medical examiner. Following thorough interviews

and examinations, Dr. Siegel found that Petitioners suffered no

acute illnesses or health effects from radiation exposure.

Dr. Barnaby opined, as a general matter, that long-
6

term exposure to plutonium radiation could be hazardous and result
in some form of cancer. He also commented that the inhalation of
plutonium particles could lead to the development of lung cancer,
and that it was possible that plutonium particles in the lungs
could make their way to other organs, thereby increasing the risk
of cancer in those areas.

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 B. The ALJ and Board's Decision

Following the hearings, the ALJ denied Petitioners'

claims in a 164-page decision and reached two conclusions that are

relevant to us today. First, after carefully reviewing the

evidence and applying the correct legal standard, the ALJ found

that Petitioners did not establish a causal nexus between their

illnesses and plutonium radiation. Relying on the expert

testimony of Drs. Mettler, Russo, and Turnbull, the ALJ concluded

that even if the Petitioners had been exposed to a detectable dose

of plutonium radiation, the weight of the scientific consensus was

that plutonium radiation does not cause the illnesses that the

Petitioners suffered from.7 The ALJ explained that in order to

find otherwise, she would have to "discount the opinions of highly

credentialed physicians and ignore a multitude of medical and

epidemiological studies, in favor of the 'vague' . . . [or]

'conclusory' opinion[s] [of the Claimants' experts.]"

Second, the ALJ once again found that the Director

properly participated in the litigation. She relied on her prior

decisions and additionally noted that the "Director acted

7Although not relying on the testimony, the ALJ first
explained, based on the expert testimony of Dr. Anspaugh, that it
was unlikely that the Petitioners were exposed to high levels of
radiation at all.

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prudently to safeguard the potential liability of the Longshore

Act's Special Fund."8

Petitioners appealed to the Benefits Review Board

alleging, among other things, error in the ALJ's causation analysis

and the ALJ's decision to allow the Director to participate in the

proceedings. The Board affirmed, holding that the ALJ's finding

that Petitioners' illnesses were not attributable to plutonium

exposure was supported by substantial evidence. The Board

likewise affirmed the ALJ's decision allowing the Director to

participate in the proceedings, relying on the explicit language

of the applicable regulations.9

Petitioners filed a petition for review of the Board's

decision.10

8 The ALJ also found that certain portions of the
Petitioners' DBA claim were untimely. By proceeding to the merits
of the entirety of the DBA claim, the ALJ also denied the purported
untimely claims on the merits as well.
9 The Board did not address the ALJ's decision on the
timeliness of Petitioners' claims, finding the causal connection
point dispositive.
10 Petitioners timely filed their petition with the
United States Court of Appeals for the Second Circuit. Soon
thereafter, upon the Director's motion, the Second Circuit
transferred the petition to this court. We have jurisdiction
because Petitioners filed their claims with the District Director,
Office of Workers' Compensation Programs, in Boston,
Massachusetts. See Truczinskas v. Dir., OWCP, 699 F.3d 672, 674-
76 (1st Cir. 2012); 42 U.S.C. § 1653(b) (stating that petitions
for review should be filed "wherein is located the office of the
deputy commissioner whose compensation order is involved").
Petitioners suggest that their petition for review should be filed
in the district court, not the court of appeals. We have rejected

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 II. Standard of Review

We review the Board's decisions on questions of law de

novo and determine "whether the Board adhered to the 'substantial

evidence' standard when it reviewed the ALJ's factual findings."

Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st Cir. 1999). "In

reviewing for substantial evidence, we assess the record as a

whole, and we will affirm so long as we are satisfied that the

record contains 'such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.'" Peña-Garcia v.

Dir., OWCP, 917 F.3d 61, 64 (1st Cir. 2019) (quoting Bath Iron

Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir.

2003)). Substantial evidence is "more than a scintilla" and does

not approach the familiar preponderance of the evidence standard

found in civil cases. Bath Iron Works Corp., 336 F.3d at 56.

Moreover, on review, "we will accept the findings and inferences

drawn by the ALJ, whatever they may be, unless they are

'irrational.'" Id. (quoting Barker v. U.S. Dep't of Labor, 138

F.3d 431, 434 (1st Cir. 1998)). It is the ALJ's prerogative, in

the first instance, "to draw inferences and make credibility

assessments, and we may not disturb [their] judgment and the

Board's endorsement of it so long as the findings are adequately

this same argument in the past and reiterate that we have
jurisdiction over petitions for review of a Benefits Review Board
decision under the Defense Base Act. Id.

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anchored in the record." Bath Iron Works Corp. v. Dir., OWCP, 244

F.3d 222, 231 (1st Cir. 2001). The substantial evidence standard

is "notoriously difficult to overcome." Bath Iron Works Corp.,

336 F.3d at 56.

III. The Director's Participation in the Proceedings

As they did before the ALJ and the Board, Petitioners

assert that the Director improperly participated in the

proceedings below. Petitioners take on a variety of positions,

essentially arguing that Supreme Court precedent as well as both

the purpose and text of the LHWCA and relevant regulations prohibit

the Director from joining LHWCA and DBA litigation as a party.

Further, Petitioners argue that by permitting the Director to

participate, the ALJ and Board committed reversible error.

Reviewing de novo, we find Petitioners' arguments meritless.

In 1927, the LHWCA established a comprehensive federal

workers' compensation scheme requiring certain employers to

compensate covered employees injured in the course of their

employment. Dir., OWCP v. Newport News Shipbuilding and Dry Dock

Co., 514 U.S. 122, 125 (1995) (hereinafter "Harcum"); 33 U.S.C.

§§ 902(2), 903(a). The Act aimed to produce "fair and efficient

resolution of a class of private disputes, managed and arbitered

by the Government" and is best understood as a compromise between

the competing interests of employers and injured workers. Harcum,

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514 U.S. at 131. In 1941, Congress enacted the DBA which, drawing

upon the LHWCA, "aimed to provide workers' compensation covering,

among others, individuals employed outside the continental United

States under contracts with or approved by the federal government."

Truczinskas v. Dir., OWCP, 699 F.3d 672, 674 (1st Cir. 2012)

(citing 42 U.S.C. § 1651(a)(4)-(5)). The DBA incorporated much

of the LHWCA scheme, and with limited exceptions "the provisions

of the [LHWCA], . . . as amended, . . . apply in respect to the

injury or death of any employee" under the DBA. 42 U.S.C.

§ 1651(a).

Apart from the compensation scheme, the LHWCA also

assigns a variety of responsibilities to the Secretary of the

Department of Labor, one of which includes the authority to make

rules and regulations "as may be necessary in the administration

of this [Act]." 33 U.S.C. § 939(a). One of those regulations,

20 C.F.R. § 702.333(b), permits "[t]he Solicitor of Labor or his

designee [to] appear and participate in any formal hearing held

pursuant to these regulations on behalf of the Director as an

interested party." See also 20 C.F.R. § 701.101(a) (making

§ 702.333 applicable to the DBA). The Secretary of Labor has also

charged the Director of the OWCP with both the administration and

enforcement of the LHWCA/DBA and, as a result, the Director often

appears as "a litigant in LHWCA cases as a representative of the

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Department of Labor." Cunningham v. Dir., OWCP, 377 F.3d 98, 105

n.6 (1st Cir. 2004) (internal citation omitted); see 20 C.F.R.

§ 701.201.

Despite the regulation's explicit language, Petitioners

argue that the Director inappropriately participated as a litigant

below. Petitioners rely on the Supreme Court's decision in Harcum

and insist that it stands for the proposition that the LHWCA does

not "confer party-litigant standing on the Secretary, (hence the

Director), in ALJ or [Board] proceedings." But Harcum says no

such thing. In Harcum, the Director petitioned the court of

appeals to review an ALJ and Board ruling granting only partial

benefits to a claimant under the LHWCA. 514 U.S. at 124-25. The

Supreme Court found that the Director did not have standing to

challenge the ruling before the court of appeals because the

Director was not adversely affected or aggrieved by the decision

within the meaning of § 921(c) of the LHWCA. Id. at 136. That

decision did not involve the Director's ability to join LHWCA

litigation before the ALJ or the Board and does not support

Petitioners' argument.

Indeed, relevant precedent establishes that the Director

may participate as a litigant before the ALJ and the Board.

Following Harcum, the Supreme Court explained that the Director

plays a significant role before the ALJ and Board in LHWCA cases,

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noting that "the Director has also been authorized by the Secretary

of Labor to appear as a litigant before the relevant adjudicative

branches of the Department of Labor, the ALJ, and the Benefits

Review Board." Ingalls Shipbuilding, Inc. v. Dir., OWCP, 519 U.S.

248, 263 (1997) (citing 20 C.F.R. § 702.333(b)). We have also

explained that "[t]he Director is charged with the administration

and enforcement of the LHWCA, and also is often a litigant in LHWCA

cases as a representative of the Department of Labor."

Cunningham, 377 F.3d at 105 n.6 (internal citation omitted).

Faced with the weight of this precedent, Petitioners

press an alternative argument. They posit that the ALJ and Board

erred by allowing the Director to participate as an interested

party for the specific reason of protecting possible Special Fund

payments. But, again, we are unconvinced. As the administrator

of the Special Fund, the Director may provide compensation from

the fund to an aggrieved employee when the employer is unable to

pay due to insolvency. 33 U.S.C. §§ 944(a), 918(b). Given that

DCC had ceased operations, it was reasonable for the Director to

assume that the Special Fund could be implicated if Petitioners'

claims were successful. Cf. Dir., OWCP v. Newport News

Shipbuilding and Dry Dock Co., 8 F.3d 175, 181 (4th Cir. 1993)

(explaining that the Director "has an obligation to protect [the

fund] from unjustified claims" (alteration in original) (quoting

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Dir., OWCP v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d

110, 113 (4th Cir. 1982))). Indeed, that assumption proved

correct when E. Pihl declared bankruptcy during the evidentiary

proceedings before the ALJ, rendering the Special Fund potentially

responsible for any compensation due. Acknowledging the

Director's responsibility, the ALJ and the Board permissibly

allowed the Director to participate for the purpose of protecting

the Special Fund.11

As a last resort, Petitioners insist that the Director's

participation below was ultra vires and would result in the

Director reviewing the Board's decision. Petitioners do not give

us much to go on as to why the Director's participation would be

ultra vires or an unlawful delegation of power. What we do know,

however, is that Congress explicitly authorized the Secretary of

Labor to make needful rules and regulations and that Petitioners

have not explained how Congress or the Secretary of Labor went

beyond their authority by doing so. The argument is, therefore,

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

11Moreover, the relevant statutes and regulations
governing appeals to the Board permit the Director to participate
in the appeal as a party. See, e.g., 20 C.F.R. §§ 801.102(a),
801.2(a)(10); 33 U.S.C. § 921(b)(3).

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deemed waived. It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do

counsel's work, create the ossature for the argument, and put flesh

on its bones.") (internal citation omitted). Further, as we have

previously explained, by statute, the Director does not review the

decisions of the Board. Neely v. Benefits Review Bd., 139 F.3d

276, 281 (1st Cir. 1998). That responsibility rests with the

circuit court of appeals. Truczinskas, 699 F.3d at 674-75; Wood

v. U.S. Dep't of Labor, 112 F.3d 592, 595 (1st Cir. 1997).

Accordingly, we find that the Director properly

participated in the proceedings below.

IV. The Defense Base Act Claim

Petitioners also challenge the Board's merits decision.

In denying Petitioners' claims, the ALJ found that the weight of

the medical and scientific evidence established that the

Petitioners' illnesses were not related to their alleged exposure

to plutonium radiation at Thule. The Board, in affirming, found

that the ALJ's conclusion was supported by substantial evidence.

Petitioners now claim before us that the Board's decision was

erroneous, raising a litany of arguments.

The LHWCA provides compensation for certain injuries

"arising out of and in the course of employment." 33 U.S.C.

§ 902(2); Battelle Mem'l Inst. v. DiCecca, 792 F.3d 214, 217 (1st

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Cir. 2015). The Act defines injury, in part, as "such occupational

disease or infection as arises naturally out of such employment or

as naturally or unavoidably results from [an] accidental injury."

33 U.S.C. § 902(2). To receive compensation, a claimant must

establish a "causal nexus between [his] malady and his employment

activities." Bath Iron Works Corp. v. Fields, 599 F.3d 47, 52

(1st Cir. 2010) (alteration in original) (quoting Sprague v. Dir.,

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

We analyze LHWCA and DBA claims through a burden-

shifting framework, which ultimately places the burden of proving

the requisite elements of coverage with the claimant. Id. at 52-

53, 53 n.1. Under this framework, the claimant must first make

out a prima facie case by establishing "(1) that he 'sustained

physical harm' and (2) 'that conditions existed at work which could

have caused the harm.'" Bath Iron Works Corp. v. Preston, 380

F.3d 597, 605 (1st Cir. 2004) (quoting Susoeff v. S.F. Stevedoring

Co., 19 Ben. Rev. Bd. Serv. 149, 151 (1986)). The question at

this stage is not whether there is a causal nexus, but rather,

whether the claimant can show merely "that the harm could have

been caused by his working conditions." Id. Once the claimant

establishes a prima facie case, § 920(a) kicks in, which affords

claimants a presumption that the injury was caused by his working

conditions and is compensable under the DBA. See id.; 33 U.S.C.

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§ 920(a). That presumption, we have explained, attaches to the

Petitioners' injury being causally related to their employment.

Fields, 599 F.3d at 51-52. Next, the employer may rebut that

presumption by demonstrating with substantial evidence -- that is,

"such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion," Brown, 194 F.3d at 5 (quoting

Sprague, 688 F.2d at 865) -- "that the injury was not caused by

the claimant's working conditions," Preston, 380 F.3d at 605. If

the employer severs the causal connection between the injury and

the claimant's working conditions, "the presumptions 'falls' out

of the case." Id. (quoting Sprague, 688 F.2d at 866 n.7). Then,

the burden shifts back to the claimant who must show, by a

preponderance of the evidence, that the injuries were in fact

caused by the working conditions "based on the record as a whole."

Brown, 194 F.3d at 5.

Down below, Petitioners successfully established a prima

facie case, triggering the § 920(a) presumption. E. Pihl, in

turn, successfully rebutted that presumption through the testimony

of Drs. Mettler, Turnbull, and Russo. The ALJ then reviewed the

evidence as a whole and found that Petitioners did not establish

a causal connection between their illnesses and the alleged

plutonium radiation exposure at Thule. According to Petitioners,

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however, the ALJ's finding was not supported by substantial

evidence. The record, however, does not support their position.

E. Pihl produced significant amounts of evidence

establishing that plutonium radiation does not cause Petitioners'

illnesses. The ALJ found that Dr. Mettler was highly qualified

to comment on these issues as a physician in Radiology and Nuclear

Medicine who focused on the effects of plutonium radiation on the

human body. Notably, Dr. Mettler explained that plutonium

radiation primarily manifests in lung, liver, and bone cancer, and

that plutonium has never been shown to cause kidney or stomach

cancer. As for Carswell's thyroid issues, Dr. Mettler explained

that the dose of plutonium radiation needed to make a thyroid non-

functional would have resulted in a higher dose to the lungs, which

would have proved fatal.

Dr. Russo provided validating testimony. A surgeon at

Memorial Sloan-Kettering Cancer Center and professor of Urology,

he explained that, unlike Petitioners' expert's claim, it was not

entirely possible to determine the etiology of Eriksen's and

Hansen's kidney tumors. But given the type of kidney tumors they

had, it was "equally if not more probable that [Petitioners had]

sporadic renal tumors" that are common across the world, and

therefore not caused by plutonium radiation. Importantly, Dr.

Russo explained that Eriksen's smoking history could have also

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been the cause of his kidney cancer. Then, Dr. Turnbull, who is

a member of the Memorial Sloan-Kettering Gastric and Mixed Tumor

Surgery Service, explained that Carswell's illnesses are not

caused by plutonium radiation. He explained with precision that

Carswell's stomach cancer and esophagus issues were likely due to

acid reflux or an H. pylori infection. Taken together, the

testimony of E. Pihl's experts certainly provided substantial

evidence from which a reasonable person could conclude that

plutonium radiation, if any, did not cause the ailments suffered

by the Petitioners, and therefore rebutted the § 920(a)

presumption. See Sprague, 688 F.2d at 867 (finding that the

testimony of two expert doctors provided substantial evidence on

causation question); Bath Iron Works Corp. v. Dir., OWCP, 137 F.3d

673, 675-76 (1st Cir. 1998) (finding that the testimony of one

doctor provided substantial evidence on causation question).

There is likewise substantial evidence to conclude that

following the rebuttal of the presumption, Petitioners did not

establish, on the record as a whole, a causal nexus between their

alleged plutonium exposure and their illnesses. The ALJ found

that Petitioners' expert witnesses offered vague and conclusory

testimony and that in order for the ALJ to have relied on that

testimony, she had to credit the "vague opinions" of Dr. Robbins

and Dr. Edwards and the "conclusory opinion of Dr. Barnaby" over

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the Respondents' "highly-credentialed physicians and ignore a

multitude of medical and epidemiological studies." That finding,

as we have recounted, was rational and supported by substantial

evidence.

Faced with this reality, Petitioners urge us to revisit

the proceedings themselves. Petitioners complain that neither the

Respondents' expert witnesses, nor the independent medical

examiner, subjected the Petitioners to a urine test in order to

determine whether they were in fact exposed to plutonium

radiation. 12 Given that failure, Petitioners insist that no

medical testimony proffered by E. Pihl was sufficient to rebut

causation. We are not convinced. E. Pihl's medical experts

established that even if Petitioners were exposed to plutonium

radiation, plutonium does not cause the types of illnesses that

Petitioners suffer from. Moreover, Petitioners were free to

conduct urine tests of their own accord and, ultimately, it was

Petitioners, not E. Pihl, who bore the burden of proof.13

12 The use of a urine test was the subject of spirited
argumentation before the ALJ because it would have likely
established whether Petitioners were exposed to plutonium
radiation. During those arguments, Petitioners moved to compel
Dr. Siegel, the independent medical examiner, to conduct a urine
analysis, but the ALJ denied that petition, deferring to Dr.
Siegel's medical expertise in choosing which exams to conduct.
The Board affirmed.
13 Moreover, the ALJ did not abuse her discretion by
deferring to the independent medical examiner -- an experienced
medical examiner -- as to what type of exams would be helpful in

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 Next, Petitioners attack the substance of E. Pihl's

expert's testimony. They fault Dr. Mettler for relying on an

"atomic bomb model of single instance exposure" instead of a long-

term model in assessing cancer risk, and they argue that his

testimony was undermined by his purported admission that it was

statistically difficult to ascertain cancer risks in populations

that are exposed to low levels of radiation. They also point to

one of their exhibits, a report by the Center for Environmental

Health Studies, for the proposition that radiation from plutonium

could be shown to cause kidney and stomach cancer and thyroid

issues, and suggest that it, too, undermined Dr. Mettler's

testimony. Finally, Petitioners attack the credibility of Drs.

Russo and Turnbull, claiming that their testimony should be given

little weight because they are not experts in the medical effects

of radiation. By doing so, Petitioners invite this court to

reweigh the evidence which we, of course, cannot do. See Bath

Iron Works Corp., 244 F.3d at 231; Peña-Garcia, 917 F.3d at 64.

In any event, the ALJ's findings were rational and firmly anchored

in the record. Despite Petitioners' attacks, Dr. Mettler's

testimony did in fact rely on various modes of exposure which he

discussed and attached to his report; none of which have

his evaluation. In any event, Petitioners could have sought the
opinion of a second independent medical examiner under 20 C.F.R.
§ 702.409.

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established an association between plutonium exposure and kidney

or stomach cancer. Second, Dr. Mettler did not admit to the

statistical difficulty Petitioners assert. In fact, Dr. Mettler

explained that at low doses of radiation, if there is a risk, it

is so minuscule that no scientist has been able to identify it

after sixty years of targeted studies. As for Petitioners'

proffered exhibit, the ALJ explained that the article did not

"differentiate between radiation in general and plutonium

radiation specifically, which was the type of radiation released

in the Thule incident." The ALJ was free to weigh the probative

value of the article in light of the rest of the testimony and did

so here. Finally, Drs. Turnbull and Russo testified well within

the bounds of their expertise, opining on the likely causes of

Carswell's stomach cancer and esophagus issues and Eriksen's and

Hansen's kidney tumors respectively.

Petitioners also complain that the ALJ erroneously

permitted Dr. Juel to testify as a fact witness. Remember, Dr.

Juel could only testify as a fact witness because his employment

by a Danish state university prohibited him from testifying as an

expert. He instead testified about the facts concerning his

several epidemiological studies of the Thule workers. Petitioners

do not posit any good reason for why the ALJ abused her discretion.

See Pan Am Rys., Inc. v. U.S. Dep't of Labor, 855 F.3d 29, 36 (1st

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Cir. 2017) (applying abuse of discretion standard to ALJ's decision

to exclude evidence). Dr. Juel's testimony was relevant to the

occupational hazards of civilian employees working at Thule, and

the ALJ also limited Dr. Juel's testimony to the facts concerning

the work he and his colleagues performed in those studies. Even

so, Dr. Juel's testimony was not a necessary part of the ALJ's

decision, and only bolstered E. Pihl's expert's testimony.

Petitioners finally claim that the ALJ erred by refusing

to admit evidence regarding the 1988 death of Karl Banz -- a

civilian employee who also worked at Thule during Operation Crested

Ice. We again perceive no abuse of discretion in that decision.

See id. Banz was not a party to the litigation and had different

responsibilities during the cleanup. Any testimony concerning his

work or illnesses would have little relevance and probative value

to the question of whether the Petitioners' ailments were caused

by plutonium radiation.

V. Conclusion

For the foregoing reasons, we deny the petition for

review.

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