Bath Iron Works v. Brown

Decision Date08 September 1999
Docket NumberNo. 98-2010,98-2010
Citation194 F.3d 1
Parties(1st Cir. 1999) BATH IRON WORKS, ET AL., Petitioners, v. HAROLD J. BROWN, JR., ET AL., Respondents. . Heard
CourtU.S. Court of Appeals — First Circuit

Kevin M. Gillis, with whom Troubh, Heisler & Piampiano, P.A. was on brief, for petitioners.

G. William Higbee, with whom McTeague, Higbee, MacAdam, Case, Cohen & Whitney, PA was on brief, for respondent Harold J. Brown.

Stephen Hessert, with whom Norman, Hanson & DeTroy was on brief, for respondent Liberty Mutual Insurance Company.

Laura J. Stomski, with whom Henry L. Solano, Solicitor of Labor, Carol A. De Deo, Associate Solicitor for Employee Benefits, and Samuel J. Oshinsky, Counsel for Longshore, were on brief, for respondent Director, Office of Workers' Compensation Programs, U.S. Department of Labor.

Before Stahl, Circuit Judge, John R. Gibson, Senior Circuit Judge,* and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

Harold J. Brown, Jr., now nearly 78 years old, worked at shipbuilding facilities owned by the Bath Iron Works (BIW) for 43 years, from 1941 to 1984. Until 1978 he worked at the BIW shipyard in Bath, Maine, a facility covered by the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. From 1978 to 1984, he worked at BIW's Hardings plant, a facility the Benefits Review Board (BRB) determined was not covered by the Act.

Brown obtained an award of benefits under the Act for hearing loss, an occupational disease resulting from years of exposure to loud noises. He received a lump sum payment in 1986; his present interest in this case is in continuing health coverage for his disability, and more specifically, that BIW's insurer pay for hearing aids as needed. BIW has two insurers involved: Commercial Union Insurance Companies, which provided coverage from January 1, 1963 to February 28, 1981, and Liberty Mutual Insurance Company, which provided coverage from March 1, 1981 to August 31, 1986. Liberty Mutual paid the lump sum award and looks to Commercial Union for reimbursement. Commercial Union, to its credit, has informed us that it will reimburse Liberty Mutual if the order awarding benefits is upheld. This petition for review by BIW and Commercial Union concerns whether Brown should have received benefits under the Act.

I

This case has consumed more than 16 years. The original claim for compensation was filed on July 22, 1983, and the matter has been before three different Administrative Law Judges (ALJs) and has been to the BRB four times. The basic attack mounted by Commercial Union and BIW is that the second ALJ found, on substantial evidence, that Brown failed to produce credible evidence of any hearing loss during the covered period at the shipyard and that the BRB was not free to disturb that ruling. Brown disagrees with the second ALJ's conclusion. He argues that the first ALJ found, on substantial evidence, both exposure to loud noise and hearing loss during the covered period and that the BRB's order should be affirmed. Commercial Union agrees that there was such exposure and says that while there was substantial evidence to support a finding of hearing loss during the covered period, no such finding was in fact made and that therefore the second ALJ's finding was the controlling one.

This court reviews the BRB's decision on legal issues de novo and determines whether the Board adhered to the "substantial evidence" standard when it reviewed the ALJ's factual findings. See Barker v. United States Dep't of Labor, 138 F.3d 431, 434 (1st Cir. 1998).

We decide this case on the grounds argued by Brown: the first ALJ found that Brown had adduced evidence sufficient to make out a prima facie case as to his hearing loss during his employment at the shipyard and, consequently, to invoke the presumption of liability in 33 U.S.C. § 920(a). The employer did not rebut the presumption, and the BRB correctly determined that substantial evidence supported the first ALJ's determination. An explanation of our reasoning benefits from a description, shortened and focused, of the protracted prior proceedings.

II

On July 22, 1983, Brown filed a Claim for Compensation with the Office of Workers' Compensation, U.S. Department of Labor. Since Brown and BIW could not agree on a settlement, the dispute went before an ALJ of the Department of Labor. On June 11, 1986, after the only evidentiary hearing held in this matter, ALJ Glennon awarded Brown benefits for a 39.6% binaural hearing loss based on expert testimony and audiograms taken in 1955, 1967, and 1983. The ALJ also held that the Hardings facility was a covered situs under the Act and that Liberty Mutual, as the carrier at the time of the last exposure, was liable for payment of the benefits. Liberty Mutual appealed this decision to the BRB. On July 31, 1989, the BRB reversed the ALJ. The Board determined that the Hardings facility was not a covered situs under the Act and, therefore, the date of last covered exposure was April 17, 1978, when Brown last worked at the Bath facility. Consequently, the carrier responsible for Brown's benefits was Commercial Union. The Board also decided that "[a]ggravation of a covered injury occurring after termination of covered longshore employment is not compensable under the Act," under Leach v. Thompson's Dairy, Inc., 13 Ben. Rev. Bd. Serv. (MB) 231 (1981). The BRB "remand[ed] the case for the ALJ to determine the extent of claimant's work-related hearing loss from 1941 until claimant transferred to the Hardings facility."

On February 21, 1990, a second ALJ (Shatz) found that the only reliable audiogram was conducted in 1983 (finding the audiograms done in 1955 and 1967 were unreliable), and that the 1983 audiogram could not be relied upon as an indicator of Brown's hearing loss in 1978 since Brown was exposed to loud noises at the Hardings plant after that date. Therefore, the second ALJ concluded, Brown "ha[d] not sustained his burden of proof1 by credible evidence that he sustained a hearing loss prior to being transferred in 1978 from the Employer's shipyard to the Hardings facility." As a result, the ALJ denied Brown's claim. Brown appealed ALJ Shatz's ruling and, on June 16, 1992, the BRB reversed. Relying on cases it had decided since the first appeal,2 and contrary to its earlier holding that aggravation of a covered injury at a later non-covered site is not compensable, the Board held that Brown, as a matter of law, was entitled to compensation for his hearing loss as measured in 1983, because "the last covered employer is liable for an occupational disease regardless of subsequent exposure in non-covered employment."3 Brown's claim was re-instated. Upon reconsideration, the Board reaffirmed this holding.

The BRB remanded the case to a third ALJ (Karst) to determine Brown's average applicable weekly wage. This the ALJ did on July 21, 1997, and BIW and Commercial Union appealed again to the BRB, which, on August 13, 1998, upheld the ALJ in all respects.

III

The first ALJ had to decide the initial question of compensability and he decided it in Brown's favor. In order for an injury to be covered by the Act, the claimant must initially make out a prima facie case. That is, a claimant "must at least allege an injury that arose in the course of employment as well as out of employment." U.S. Indus./Fed. Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 615 (1982); see also Susoeff v. San Francisco Stevedoring Co., 19 Ben. Rev. Bd. Serv. (MB) 149, 151 (1986) (claimant must make a prima facie showing that he or she "sustained physical harm and that conditions existed at work which could have caused the harm"); cf. Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 959 (9th Cir. 1998) (relying on Susoeff).

There was substantial evidence to support the finding of compensability, as Commercial Union concedes.4 Brown worked at the shipyard as a shipfitter, surrounded by the din of chipping, riveting, sirens, and hammering. He testified that he noticed loss of hearing years earlier, during the period he worked at the shipyard. That testimony was not rebutted. He had three audiograms done, two in 1955 and one in 1967. Each showed that he suffered some hearing loss, although, oddly, the later one showed less hearing loss than the earlier ones.5 Brown's testimony before Judge Glennon indicates that an audiogram was done in 1967 or before, after Brown noticed hearing loss. Brown testified that, as a result of a ringing in his ears he went to First Aid at the shipyard and had a hearing test done. He was told by the shipyard's medical department that the hearing loss was a hazard of the job and not much could be done about it. The medical testimony before the first ALJ also supports the conclusion that Brown had work-related hearing loss as a result of his employment at the Bath shipyard. This is sufficient to establish a prima facie case under the Act.

Once Brown made out his prima facie case, there was a presumption of liability. See 33 U.S.C. § 920(a) ("In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary -- (a) That the claimant comes within the provisions of this chapter.").

BIW could have rebutted this presumption in Brown's favor "by showing that exposure to injurious stimuli did not cause the harm" or "that [Brown] was exposed to injurious stimuli while performing work covered under the [LHWCA] for a subsequent employer." Avondale Indus. Inc. v. Director, OWCP, 977 F.2d 186, 190 (5th Cir. 1992) (quoting Susoeff, 19 Ben. Rev. Bd. Serv. at 151) (internal quotation marks omitted); see also General Ship Serv. v. Director, OWCP, 938 F.2d 960, 961 (9th Cir. 1991) (applying Susoeff). BIW had to produce "substantial evidence" to support such a showing. See Sprague v. Director, OWCP, 688 F.2d 862, 865 (1st Cir. 1982) (quoting § 920(a)). "Substantial...

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