Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs

United States Court of Appeals
For the First Circuit

No. 96-1956

BATH IRON WORKS CORP., and LIBERTY MUTUAL INSURANCE CO.,

Petitioners,
v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondent.

PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Kevin M. Gillis, with whom Troubh, Heisler & Piampiano was on

brief for petitioners.

G. William Higbee, with whom McTeague, Higbee, MacAdam, Case,

Watson & Cohen was on brief, for claimant, Lawrence J. Shorette.

March 21, 1997

LYNCH, Circuit Judge. Bath Iron Works Corporation
LYNCH, Circuit Judge.

("BIW") and its insurer, Liberty Mutual Insurance Company

complain of a decision of the Benefits Review Board affirming

the award of medical benefits to Lawrence J. Shorette, a BIW

employee. The award was pursuant to the Longshore and Harbor

Workers' Compensation Act ("LHWCA"), 33 U.S.C. 901 et seq.,

which creates a presumption that a claimant's medical

condition is causally related to his employment. See 33

U.S.C. 920(a). The Board agreed with the administrative

law judge that BIW had failed to rebut this presumption. BIW

disagrees, arguing that it adduced substantial evidence

tending to show that Shorette's lung disease was not caused

by his employment at the Bath shipyard. Shorette1 counters

that BIW presented no evidence casting doubt on the

possibility that his work at BIW had, at a minimum,

aggravated his health problems.

I.

Shorette began working as a cleaner at the BIW

shipyard in Bath, Maine, in 1981. His responsibilities

included collecting and bagging waste asbestos during

"asbestos ripouts," and he was exposed to asbestos dust on a

1. The named respondent is the Director of the Office of
Workers' Compensation Programs of the United States
Department of Labor, see Ingalls Shipbuilding, Inc. v.

Director, Office of Workers' Compensation Programs, 117 S.

Ct. 796, 807 (1997), but Shorette is the real party in
interest and is represented by counsel.

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daily basis. Despite measures such as protective equipment

and decontamination procedures, on several occasions in 1981

Shorette may have inadvertently inhaled asbestos dust.

Although cleaners were required to undergo a

decontamination process after every asbestos ripout, the

decontamination process itself caused unprotected asbestos

exposure when fellow workers, covered with asbestos, entered

the area. There were times while Shorette was working at the

shipyard when he had come into contact with fine airborne

dust of unknown origin that might have been asbestos. There

were other incidents as well. On one occasion, Shorette's

respirator hose was disconnected for about ten minutes and

his mask filled with asbestos dust. On another occasion,

Shorette was working without protective equipment in an area

that supposedly contained no asbestos. It later turned out

that there had been asbestos in the area.

In late 1981, Shorette began periodic medical

monitoring through BIW's asbestos surveillance program.

Shorette's initial x-rays from late 1981 and early 1982

revealed lung problems -- interstitial fibrotic changes which

could have been caused by asbestos exposure. The program

doctors recommended that Shorette no longer perform asbestos

clean-ups, and from that time on his work has been limited to

general cleaning. In 1989, x-rays showed further

deterioration of Shorette's lung condition. BIW Industrial

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Health Department records noted "interstitial fibrosis

suggestive of asbestosis" in 1987, "probable asbestosis" in

1989 and "probable asbestosis with an ILO rating of 3/3"2 in

1991.

In March 1990, Shorette asserted a LHWCA claim

against BIW for medical benefits for asbestosis. A hearing

was held before an ALJ in October 1992. To rebut the

statutory presumption in favor of the employee, 33 U.S.C.

920(a), BIW submitted evidence suggesting that Shorette might

have been exposed to asbestos well before he began working at

the Bath shipyard. Shorette had been in the Navy from 1955

to 1959 and he agreed it was possible that he had been

exposed to asbestos during that period. However, BIW was

unable, upon questioning Shorette, to identify any specific

instances of exposure. Shorette also might have been exposed

to asbestos while working at Times Fibre Communications

between 1966 and 1978, but again BIW's questioning could not

identify any specific incidents.

BIW also produced medical testimony from two

experts indicating that it was unlikely that Shorette's

exposure to asbestos in 1981 at BIW had caused the lung

damage that was evident in x-rays from 1981 and 1982 because,

2. This unfavorable rating is based on a well-accepted
classification scheme for occupational lung disease, and
reflects the size and extensiveness of the obstructions on
the lung.

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among other reasons, not enough time had passed. In May

1982, Shorette had visited Dr. John Kanwit, a family

practitioner, who diagnosed him as having an acute lung

infection (probably bronchitis) and chronic asbestosis. Dr.

Kanwit testified that, due to the long latency period between

exposure and the development of interstitial lung changes,

"it would be less than likely that asbestos exposure a year

or less before the patient presented with his symptoms would

have been the cause of his problem." He further stated, "I'm

sure [the exposure] didn't help the situation, but I would be

very surprised if he could develop asbestosis quite that

quickly."

There was also evidence from Dr. Harder, a

pulmonary disease specialist, who saw Shorette on two

different occasions during the summer of 1991. Dr. Harder

took a medical history of the 1981 exposures and of the

abnormal x-ray findings from 1981 and 1982. Dr. Harder

diagnosed Shorette with obstructive lung disease caused by

cigarette smoking and interstitial lung disease of unknown

cause. He testified that interstitial changes have an eight

to twenty year latency period, and so he did not think the

changes shown on the 1981 and 1982 x-rays could have been

caused by exposure in 1981. He also noted that the absence

of pleural plaques on the x-rays was counterindicative of

asbestosis, because with asbestos related lung disease,

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pleural plaques tend to (but do not always) develop before

the interstitial lung changes become apparent. Dr. Harder

indicated that exposure to asbestos was one possible cause of

Shorette'slungdisease butthathe couldnotrule outother causes.

The ALJ found that BIW had not rebutted the

statutory presumption of a causal relationship between a

claimant's employment and his medical condition. He reasoned

that "no basis has been presented for concluding that the

progression of the disease noted on the 1989 x-ray film . . .

was not related to the 1981 or 1982 exposures." Relying on

Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 297

(11th Cir. 1990), the ALJ found that the medical evidence

offered by the employer did not completely rule out the

possibility that the claimant's condition was causally

related to the employment. The ALJ therefore ordered that

the employer and the insurance carrier that bore the risk at

the time of the asbestos exposure in 1981 pay for Shorette's

related medical expenses. The Benefits Review Board

affirmed, stating that BIW had not submitted evidence

"sufficient to rebut the presumed causal link between the

progression of the claimant's lung disease as noted on his

1989 x-ray and his exposures to asbestos while working for

employer in 1981 and 1982." This appeal ensued.

II.

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Our review of legal conclusions by the Board is

plenary; our review of its factual findings is deferential.

"In reviewing for substantial evidence it is immaterial that

the facts permit diverse inferences as long as those drawn by

the ALJ are supported by evidence." Sprague v. Director,

Office of Workers' Compensation Programs, 688 F.2d 862, 866

(1st Cir. 1982).

There is no question that Shorette established a

prima facie case and thus is entitled to the statutory

presumption that his injury or harm arose out of and in the

course of his employment. See 33 U.S.C. 920(a). The

burden was thus on the employer to rebut the presumption with

substantial evidence that the condition was not caused or

aggravated by his employment. BIW argues that it submitted

substantial evidence showing to a reasonable medical

probability that Shorette's condition was not related to his

employment, and therefore that it rebutted the statutory

presumption. It argues that the ALJ and Board imposed too

high a burden on the employer to rebut the statutory

presumption.

BIW argues that the Board erroneously applied our

decision in Sprague. It contends that it did present

evidence sufficient to rebut the presumption that the

condition shown in the 1981 and 1982 x-rays was caused by

1981 exposures. If that were what the Board had decided in

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this case, we would agree with the insurer. The employer

need not rule out any possible causal relationship between

the claimant's employment and his condition. This would go

far beyond the substantial evidence standard set forth in the

statute.

But both the Board and the ALJ based their

decisions at least in part on the ground that the 1989 x-rays

showed an aggravation of the earlier condition, which

aggravation was presumptively caused by Shorette's employment

at BIW. The expert opinions proffered by the employer did

not address and did not present substantial evidence that the

condition shown in the 1989 x-rays was not related to

Shorette's 1981 exposures. BIW did not present substantial

evidence -- indeed it did not present any evidence -- that

the 1989 condition was not at least aggravated by the 1981

exposure at BIW. The employer is liable if the exposure

either caused the disease or caused an aggravation of the

disease. The employer having failed to meet its evidentiary

burden, the decision of the Board is affirmed.

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