USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2163
BATH IRON WORKS CORPORATION and
COMMERCIAL UNION INSURANCE COMPANY,
Petitioners, Appellants,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents, Appellees.
____________________
ON PETITION FOR REVIEW OF A DECISION
OF THE BENEFITS REVIEW BOARD
____________________
Before
Torruella, Chief Judge,
___________
Aldrich, 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 respondents.
______________
____________________
March 06, 1998
____________________
ALDRICH, Senior Circuit Judge. Russell E. Harford,
____________________
Jr., a long time insulation installer for defendant Bath Iron
Works Corp. (BIW), had to quit work because of shortness of
breath. Suit is brought on his behalf by the Director,
Office of Workers' Compensation Programs, U.S. Department of
Labor, under the Longshore and Harbor Workers' Compensation
Act (LHWCA), 33 U.S.C. 901 et seq., for work-related
__ ____
disability due to "Asbestosis and related diseases." It is
undisputed that Harford developed lung cancer, and further
that his smoking two plus packs of cigarettes a day for 32
years was a basic cause. It is also undisputed that, though
he did not work with asbestos, he was exposed to the dust
from neighboring workplaces. He seeks to bring in this
exposure as a contributor to his cancer in order to charge
the employer and its insurer.
Trial was had before an ALJ on letters and
depositions of medical experts. In his decision, the ALJ
stated that the asbestos did not have to be the "sole cause"
of the cancer for claimant to recover. Rather, the entire
disability would be compensable if the asbestos contributed
to, combined with, or aggravated it.1 In short, the ultimate
____________________
1. We note that the Board, similarly to the ALJ, viewed the
issue as whether "claimant's exposure to asbestos did . . .
cause or contribute to his lung cancer." The parties share
this conception. Thus, we understand "aggravate" to be
essentially synonymous with "contribute," and to refer to the
cancer. No claim has been made for aggravation of associated
2
question was whether there was a "causal relationship between
Claimant's employment and his lung cancer." The first issue,
however, was whether the employer had met the statutory
presumption in claimant's favor. Title 33 U.S.C. 920(a)
presumes, "in the absence of substantial evidence to the
contrary-- (a) That the claim comes within the provisions of
[the Act]." After extensive review and discussion of the
evidence, the ALJ found that the presumption was rebutted,
which caused it to "fall". See Sprague v. Director,
___ _______ _________
O.W.C.P., 688 F.2d 862, 865 (1st Cir. 1982). Weighing the
________
evidence without the presumption, he found there was no
causal relationship between claimant's employment and his
cancer. It is to be stressed that this was not for lack of
proof by the claimant, but by belief of affirmative evidence
submitted by the employer. Claimant did not, he found,
contract asbestosis, and asbestos without asbestosis did not
cause or contribute to the cancer.
The Benefits Review Board reversed the ALJ's
finding that the presumption in claimant's favor had been
rebutted, thereby ending the defense. We reverse.
Decision of the Benefits Review Board
_____________________________________
With reference to the presumption, the Board
stated, "[The] employer's burden on rebuttal [is] to present
____________________
symptoms. Cf. Gardner v. Director, O.W.C.P., 640 F.2d 1385,
___ _______ __________________
1389 (1st Cir. 1981).
3
specific and comprehensive evidence sufficient to sever the
causal connection between the injury and the employment." It
added, "The unequivocal testimony of a physician that no
relationship exists . . . is sufficient to rebut the
presumption." This positive language it recast as
"unequivocally severs." "Unequivocal," on a search of
dictionaries, universally means "not doubtful," or the like,
which we take to mean certainty. That the Board so intended
is inescapably confirmed by its response to employer's
expert, Dr. Cadman's unwillingness to be absolutely certain.
Because Dr. Cadman, in the Board's words, conceded that
"asbestos may have contributed to claimant's lung cancer and
that he could not exclude that exposure as having
contributed" to it, the Board thought his testimony
insufficient to rebut the presumption.
As we have previously held, the presumption is
overcome with substantial evidence of non-causation. See
___
Sprague, 688 F.2d at 865. Substantial evidence is "such
_______
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id. (quotations and
___
citation omitted). This means "reasonable probabilities."
Cf. DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st
___ _______ ______________________
Cir. 1988); Bath Iron Works Corp. v. Director, O.W.C.P., 109
_____________________ ___________________
F.3d 53, 56 (1st Cir. 1997); Oberlander's Case, 348 Mass. 1,
_________________
7, 200 N.E.2d 268 (1964) (Workmen's Compensation). Dr.
4
Cadman's medical opinion was found insufficient by the Board,
however, because he could not exclude possibilities -- a
typical expert opinion. This put an impossible burden on the
employer.
We have, therefore, two questions. Did the
employer submit substantial evidence, when properly defined?
(A question of law for the court, not dependent on
credibility. See Sprague, 688 F.2d at 865; CNA Ins. Co. v.
___ _______ _____________
Legrow, 935 F.2d 430, 433-34 (1st Cir. 1991)). At the same
______
time, we may ask whether the ALJ was warranted in his
substantive findings. In this connection we note 33 U.S.C.
921(b)(3),
The findings of fact in the decision
under review by the Board shall be
conclusive if supported by substantial
evidence in the record considered as a
whole.
This means, obviously, that the ALJ's choice of inferences is
to be respected. See Sprague, 688 F.2d at 866 ("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.").
The ALJ's Decision
__________________
The ALJ's conclusions are backed by an extensive
discussion of the several experts. One or more of BIW's
experts testified that current medical evidence indicates
that a finding of interstitial fibrosis is necessary to reach
5
a diagnosis of asbestosis. There was testimony that tissue
samples and x-ray analyses produced no evidence that Harford
had asbestosis; that he did not have fibrosis at the time of
his surgery, and that the alveolar damage found in a biopsy
some months later was caused by radiation and chemotherapy
rather than by asbestos exposure.
Two experts testified on causation of the cancer.
Dr. Cadman's conclusion was,
[C]urrent evidence evaluating the
association of asbestos exposure, lung
fibrosis and lung cancer strongly suggest
[sic] that the excess lung cancer
___________________________
attributable to asbestos is associated
_________________________________________
with fibrosis. Therefore, lung cancer in
_____________
the absence of pulmonary fibrosis is most
likely lung cancer which developed either
from the effects of smoking alone or it
arose unrelated to any known carcinogen
as occurs in the non-smoker. . . . I
believe that in the absence of fibrosis,
that [Mr. Harford's] lung cancer was most
likely the result of prior smoking
history. (emphasis added).
The ALJ concluded,
Based on the record medical evidence, I
determine that the employer/carriers have
produced specific objective clinical
evidence and soundly reasoned medical
opinions sufficient to sever the causal
nexus and have thereby rebutted the
Section 20 presumption.
Since the ALJ had stated earlier that cause included
contribution, we find that the ALJ was warrantably covering
both in this finding. Dr. Cadman reasonably could be found
as of the opinion that diffuse interstitial fibrosis (and
6
therefore asbestosis) is generally present when asbestos
exposure is a contributing cause to lung cancer. Viz., the
probability is against asbestos, in the absence of
asbestosis. In other words, asbestos exposure had had no
belated, contributory, effect, as well as no original effect.
We believe, following Dr. Cadman's reference to "excess" lung
cancer, particularly when there had been negative evidence
covering the period between surgery and the subsequent
biopsy, that his last quoted sentence is not to be read as
limiting his opinion to the original cancer. In short, Dr.
Cadman's opinion is substantial evidence of non-causation,
sufficient both to rebut the presumption and to support a
finding for BIW.
Next?
_____
First, an observation. Harford's claim was filed
on March 20, 1989, just short of nine years ago. The ALJ's
unfavorable decision on the merits was filed on June 10,
1991; the Board's remand for a hearing on damages on November
23, 1993. BIW's petition for review of the ALJ's damage
finding was filed July 7, 1994. This finding was affirmed
automatically under the statute, Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No. 104-
134, 101(d), 110 Stat. 1321, 1321-219 (1996), because of
the Board's not having passed on the petition before
September 12, 1996. We believe the time has come to resolve
7
matters. If we remand the case to the Board to review the
ALJ's decision on the merits, it will be bound by his
findings in the absence of error. See 33 U.S.C. 921(b)(3).
___
Why the unnecessary steps? The short answer is that we
should take over finally now. And, indeed, we have already
reviewed the ALJ's detailed and careful opinion. Substantial
evidence supports the ALJ's conclusion that there was no
causal relationship. We find no error.
The decision of the Benefits Review Board is
___________________________________________________
reversed, and the denial of claim of Russell E. Harford, Jr.
_____________________________________________________________
is reinstated.
______________
- Dissent follows -
8
LYNCH, Circuit Judge, dissenting. The record in
LYNCH, Circuit Judge, dissenting.
______________
this case sets forth substantial evidence to support the
Board's finding that the employer, which had rebutted the
920(a) presumption that asbestos exposure caused claimant's
______
lung cancer, did not rebut the 920(a) presumption that
asbestos exposure contributed to claimant's lung cancer. I
___________
would affirm the Board.
The employer's evidence all went to initial
causation with one exception. That exception was the
testimony of its lead expert, Dr. Cadman, and it tended to
support claimant on the contribution issue. In testimony
introduced at the hearing, Dr. Cadman was invited and refused
to testify that he could say to a reasonable medical
probability that asbestos had not contributed to Harford's
___________
cancer. Rather, Dr. Cadman testified that 10-15% of people
with occupational exposure to asbestos who develop lung
cancer do not experience fibrosis in the lungs. He
specifically stated (after a direct question on whether
asbestos could have contributed to Harford's cancer) that
asbestos exposure "may be contributing," even in the absence
of asbestos-caused fibrosis, "although at a very small level,
because he does not have fibrosis."
There is a crucial difference, acknowledged in our
case law, between employment-related injuries that are the
primary cause of a disability and those which aggravate or
9
contribute to a pre-existing condition. See Director,
___ _________
O.W.C.P. v. Bath Iron Works Corp., 129 F.3d 45, 50 (1st Cir.
________ ______________________
1997); Bath Iron Works Corp. v. Director, O.W.C.P., 109 F.3d
_____________________ __________________
53, 55 (1st Cir. 1997). Under the "aggravation rule," even a
small contribution by a work-related condition to the
claimant's disability is sufficient to trigger full recovery
under the LHWCA; primary causation need not be shown. See
___
Hensley v. Washington Metro. Area Transit Auth., 655 F.2d
_______ ______________________________________
264, 268 (D.C. Cir. 1981). The aggravation rule embodies the
essentially humanitarian purposes of the LHWCA. It assures
that a claimant is compensated where employment-related
injury is not the sole cause of the claimant's disability.
Here, Dr. Cadman testified that the absence of asbestos-
caused fibrosis is not sufficient evidence to support the
conclusion that asbestos exposure did not contribute to
Harford's cancer. BIW therefore did not rebut the
presumption that asbestos exposure contributed to Harford's
lung cancer. The absence of fibrosis proves nothing on the
contribution issue.
The ALJ erroneously conflated the primary causation
and contribution analyses and incorrectly concluded that
where there was no primary causation there was no
contribution, either. The Board, performing these analyses
separately, recognized the significance of Dr. Cadman's
testimony as to contribution. Because Dr. Cadman expressly
10
stated that asbestos exposure could have contributed to the
cancer in the absence of fibrosis, the Board correctly
reversed. In light of the purposes of the Act, manifested by
the 920(a) presumption, and the precedent that close
questions should be decided in favor of the claimant, see
___
Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir.
______________________ _____
1978), I respectfully dissent.
11
