McLean Contracting v. Midkiff

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MCLEAN CONTRACTING COMPANY,
INC.; ST. PAUL FIRE & MARINE
INSURANCE COMPANY,
Petitioners,

v.
No. 98-1689
LANNY L. MIDKIFF; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(No. 98-223)

Argued: January 29, 1999

Decided: March 10, 1999

Before WILKINSON, Chief Judge, and LUTTIG and
TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Alan Rapaport, CLARKE, DOLPH, RAPAPORT,
HARDY & HULL, P.L.C., Norfolk, Virginia, for Petitioners. Kevin
William Grierson, JONES, BLECHMAN, WOLTZ & KELLY, P.C.,
Newport News, Virginia, for Respondents. ON BRIEF: Dana Adler
Rosen, CLARKE, DOLPH, RAPAPORT, HARDY & HULL, P.L.C.,
Norfolk, Virginia, for Petitioners. Richard B. Donaldson, Jr., JONES,
BLECHMAN, WOLTZ & KELLY, P.C., Newport News, Virginia,
for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Petitioners McLean Contracting Company and St. Paul Fire and
Marine Insurance Company challenge the Benefits Review Board's
decision upholding the award of disability compensation and medical
expenses to respondent Lanny L. Midkiff under the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. #8E8E # 901-950. We
affirm.

I.

At the time of the relevant events, respondent Lanny L. Midkiff
("Midkiff") worked as an ironworker for a subcontractor of petitioner
McLean Contracting Company ("McLean") in Norfolk, Virginia. On
Friday, June 12, 1992, while performing repair work on a bridge on
the Lafayette River, Midkiff slipped on a ladder and scraped his left
shin. The wound bled through his trousers, but did not appear to be
serious; Midkiff went home early, treated the wound there, and did
not see a doctor. Midkiff then spent the following day -- his day off
from work -- with his son, who was installing a pier in the James
River. Midkiff spent much of the day standing in the river. Soon after,
Midkiff's left leg became infected with vibrio vulnificus, a harmful
bacterium that has been found in the James River. The infection led
to complications arising from Midkiff's preexisting diabetes, ulti-

2
mately resulting in total disability from blindness and degeneration of
the kidneys.

Midkiff subsequently commenced this action under the LHWCA,
seeking disability compensation and medical expenses. On October
24, 1995, the administrative law judge ("ALJ") denied Midkiff's
claim. He ruled that Midkiff's claim fell within the scope of coverage
under the LHWCA. However, he ruled that Midkiff failed to satisfy
the LHWCA's causation requirement. The ALJ first reasoned that
Midkiff had introduced evidence that he had suffered a harm that
could have been caused by a work-related incident, as was necessary
to invoke the presumption of causation in section 20(a) of the
LHWCA, 33 U.S.C. § 920(a). He then acknowledged that McLean
had introduced no rebutting evidence regarding a subsequent inter-
vening cause which was sufficient to overcome the presumption.
However, he proceeded to conclude that Midkiff failed to demonstrate
that his disability was the "natural and unavoidable" consequence of
the work-related injury, and not of his subsequent wading in the
James River, and therefore rejected the claim.

On January 28, 1997, the Benefits Review Board ("Board")
reversed and remanded. The Board reasoned that the ALJ erred by
requiring Midkiff to demonstrate that the disability was the natural
and unavoidable result of the work-related injury. Because, as the
ALJ had found, McLean had introduced no evidence of a subsequent
intervening cause, the Board concluded that McLean had failed to
rebut the presumption of causation under section 20(a).

On September 24, 1997, on remand from the Board, the ALJ
awarded disability compensation and medical expenses to Midkiff,
reiterating from its earlier opinion that McLean had failed to intro-
duce sufficient evidence to rebut the section 20(a) presumption. On
April 9, 1998, the Board affirmed. McLean and its insurer, St. Paul
Fire and Marine Insurance Company, now petition for review.

II.

The sole issue on appeal is the application of the section 20(a) pre-
sumption of causation. In relevant part, section 20 reads:

3
 In any proceeding for the enforcement of a claim for com-
pensation under this chapter it shall be presumed, in the
absence of substantial evidence to the contrary--

(a) That the claim comes within the provisions of this chap-
ter.

33 U.S.C. § 920. As we have previously noted,"[this] presumption is
a broad one, and advances the facility with which claims are to be
treated to further the Act's purpose of compensating injured workers
regardless of fault." Universal Maritime Corp. v. Moore, 126 F.3d
256, 262 (4th Cir. 1997).

Petitioners make two primary arguments regarding the section
20(a) presumption. First, petitioners contend that the ALJ erred by
invoking the section 20(a) presumption at all, on the ground that
respondent failed to make out even a prima facie case for causation.
In order to invoke the section 20(a) presumption, a claimant must
demonstrate that he sustained a harm and that an incident occurred at
his workplace that could have caused the harm. See, e.g., Konno v.
Young Bros., Ltd., 28 B.R.B.S. 57, 59 (1994); Cairns v. Matson Ter-
minals, Inc., 21 B.R.B.S. 252, 253 (1988). In this case, it is undis-
puted that respondent sustained a harm -- namely, his resulting total
disability -- and that an incident occurred at his workplace --
namely, the cut to his shin -- that was certainly a "but for" cause of
the harm, and could have been the entire cause of the harm. Because
respondent met this burden, we conclude that the ALJ properly
invoked the presumption.

Second, petitioners contend that the ALJ erred by finding that the
section 20(a) presumption had not been rebutted. In order to rebut the
section 20(a) presumption, an employer must offer"substantial evi-
dence" that an intervening cause was responsible for the harm to the
employee. See, e.g., Universal Maritime, 126 F.3d at 262. Such evi-
dence must be "specific and comprehensive" and"sufficient to sever
the causal connection between the injury and the employment." Bass
v. Broadway Maintenance, 28 B.R.B.S. 11, 15 (1994).

Petitioners contend that respondent was exposed to the vibrio vul-
nificus bacterium that caused his infection while he was standing in

4
the James River the day after his initial injury at work. In support of
this theory, petitioners introduce two primary pieces of evidence.
First, petitioners cite respondent's own testimony, in which he stated
that the bacterium that had infected his leg had"got in there from the
James River." J.A. at 39; see also id. at 54 (same). Second, petitioners
cite the medical report of Dr. P.G. Haggerty, in which Haggerty noted
that "the brackish waters of the lower James River [were] ideal sites
for the development of vibrio infections." Id . at 174b.1

We agree with the ALJ that these pieces of evidence do not consti-
tute "substantial evidence" sufficient to rebut the section 20(a) pre-
sumption. Respondent's own testimony as to the source of the
infecting bacterium is evidently speculative. Further, although Hag-
gerty stated that the bacterium may have been found in the James
River, and also noted that respondent had spent time standing in the
James, Haggerty did not assert that Midkiff was actually infected
while standing in the James; at most, he only hinted at the possibility.
Importantly, neither Haggerty nor any of the other medical experts
asserted that the bacterium was found only in rivers, much less only
in the James River.2 While we do not minimize the likelihood that
_________________________________________________________________
1 In fact, the waters of the James are home to a veritable cornucopia of
chemical and biological pollutants. See, e.g., Rex Springston, Toxic
Chemicals Found in Fish Catch in Hopewell: Raises Questions on
Human Risk, Richmond Times-Dispatch, Dec. 24, 1998, at B1 (discuss-
ing "[a]n alphabet soup of pollutants . . . found in the James River,"
including PCBs, DDT, and TBT); Gilmore To Seek $48 Million More for
Cleaning Up State's Waterways, Roanoke Times & World News, Dec.
8, 1998, at B3 (describing sewer overflows into the James at Lynchburg
and Richmond); Holly A. Heyser, James, Elizabeth Near Top of River
Pollution List, (Norfolk) Virginian-Pilot & Ledger Star, Sep. 11, 1998,
at B5 (noting that the James ranks as the third most toxic river in Vir-
ginia and first in terms of "persistent toxic metals"); Scott Harper, Lower
James Is Closed for Second Time This Year: Pollutants Pose Problem,
(Norfolk) Virginian-Pilot & Ledger Star, April 4, 1998, at B1 (reporting
closure of river due to "unsafe levels" of"fecal coliform -- bacteria that
can carry diseases," resulting from inflow of"fertilizer, mud, animal
wastes and nutrients").
2 Indeed, when asked at oral argument whether Haggerty had testified
"as to the cause" of respondent's infection, counsel for petitioners
acknowledged that Haggerty had not, and conceded that Haggerty had
only talked generally about bacterial levels in the James River.

5
Midkiff was in fact infected by the bacterium in the James, on the
basis of the record before us, there is simply no evidence of this. On
the record as developed and presented to us, it is possible that respon-
dent could have been infected with the bacterium anywhere, including
on the job at the time of the initial injury. Consequently, because peti-
tioners failed to introduce any evidence, much less substantial evi-
dence, that Midkiff was infected while standing in the James River,
rather than at Midkiff's place of employment, we uphold the ALJ's
conclusion that petitioners failed to rebut the section 20(a) presumption.3

Petitioners make two further arguments regarding the application
of the section 20(a) presumption, both of which we reject. First, peti-
tioners contend that the Board should have upheld the ALJ's original
decision requiring respondent to introduce evidence that his disability
was the "natural and unavoidable" consequence of his work-related
injury. In so arguing, petitioners cite the Supreme Court's recent deci-
sion in Director, Office of Workers' Compensation Programs v.
Greenwich Collieries, 512 U.S. 267 (1994). In Greenwich Collieries,
the Court held that a provision of the Administrative Procedure Act
placing the burden of proof on the proponent of an action was appli-
cable in LHWCA cases. See id. at 270-71. However, the Court did not
extend this rule to statutory presumptions such as the one in section
20(a), and indeed indicated that such presumptions-- including the
presumptions in section 20, which it specifically enumerated --
remained undisturbed by the Court's broader holding regarding the
burden of proof in LHWCA actions more generally. See id. at 280.
Because Greenwich Collieries left the section 20(a) statutory pre-
sumption intact, petitioners' argument is unavailing.

Second, petitioners assert that the ALJ should have denied benefits
under this court's recent decision in Universal Maritime. Petitioners'
reliance on Universal Maritime, however, is simply inapposite. Peti-
tioners contend that, in Universal Maritime, we held that the section
20(a) presumption is inapplicable whenever an employer presents any
_________________________________________________________________
3 In the alternative, petitioners contend that respondent was negligent
either in wading in the James River or in failing to seek medical treat-
ment immediately after the infection became apparent. Having reviewed
the record, we agree with the ALJ that there is insufficient evidence to
support a finding of negligence on either ground.

6
evidence casting doubt on the employer's prima facie case for causa-
tion. As noted above, however, we in fact held only that the section
20(a) presumption "falls out of the case" when an employer offers
"substantial evidence to rebut the presumption." Universal Maritime,
126 F.3d at 262. In Universal Maritime, therefore, we simply reiter-
ated, rather than altered, the traditional burden-shifting scheme under
section 20(a). Because petitioners failed to introduce substantial evi-
dence of a subsequent intervening cause, they failed to meet their bur-
den of rebuttal, and therefore are subject to the section 20(a)
presumption.

CONCLUSION

The judgment of the Benefits Review Board is affirmed.

AFFIRMED

7