USCA1 Opinion
United States Court of Appeals
For the First Circuit
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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.
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PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Kevin M. Gillis, with whom Troubh, Heisler & Piampiano was on
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brief for petitioners.
G. William Higbee, with whom McTeague, Higbee, MacAdam, Case,
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Watson & Cohen was on brief, for claimant, Lawrence J. Shorette.
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March 21, 1997
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LYNCH, Circuit Judge. Bath Iron Works Corporation
LYNCH, Circuit Judge.
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("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.,
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which creates a presumption that a claimant's medical
condition is causally related to his employment. See 33
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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
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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.
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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,
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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
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(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,
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Office of Workers' Compensation Programs, 688 F.2d 862, 866
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(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
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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
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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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