Bath Iron Works Corp. v. U.S. Dept. of Labor

• Citation: 336 F.3d 51
• Decision Date: 17 July 2003
• Docket Number: No. 02-2073.,02-2073.
• Parties: BATH IRON WORKS CORP.; Onebeacon f/k/a Commercial Union York Insurance Co., Petitioners, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, Gertrude L. Knight, Intervenor, Claimant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

336 F.3d 51

BATH IRON WORKS CORP.; Onebeacon f/k/a Commercial Union York Insurance Co., Petitioners, v. UNITED STATES DEPARTMENT OF LABOR, Respondent Gertrude L. Knight, Intervenor, Claimant.

No. 02-2073.

United States Court of Appeals, First Circuit.

Heard April 9, 2003.

Decided July 17, 2003.

Richard F. Van Antwerp, with whom Thomas R. Kelly and Robinson, Kriger & McCallum were on brief, for petitioners.

G. William Higbee, with whom James G. Fongemie and McTeague, Higbee, Case, Cohen, Whitney & Toker, PA were on brief, for intervenor-claimant.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Petitioners Bath Iron Works Corporation and OneBeacon (collectively, "BIW") seek review of an unpublished decision and order of the United States Department of Labor Benefits Review Board ("BRB" or "Board") which upheld the determination of an Administrative Law Judge ("ALJ") that intervenor-claimant Gertrude L. Knight is entitled to workers' compensation benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, for the death of her husband William due to asbestos-induced cancer. BIW insists that both the ALJ and the Board erred when they concluded that Knight's claim for benefits had been timely presented. After a careful review of the record, we affirm the Board's decision and deny the petition for review.

I.

William R. Knight worked at BIW's shipyard in Bath, Maine, from September 1941 through January 1986.¹ While William's job responsibilities varied over the decades, his duties for much of his tenure included the cutting, handling, and installation of asbestos insulation. Even when he was not directly working with asbestos, he labored in close proximity to other employees who were. In 1979, however, he ceased working with asbestos-based products. Seven years later, in 1986, William retired from BIW at the age of sixty-one.

William enjoyed a normal retirement until ten years later when, in early 1996, he fell ill with pain in his abdomen. In April of that year he went to see his family physician who documented William's weight loss, loss of appetite, night sweats, and a questionable CT scan. The family physician, in turn, referred William to a surgeon for further evaluation and a series of tests. First, an MRI of the liver uncovered a suspicious mass. Next, an esophagogastroduodenoscopy showed nothing remarkable in the esophagus, stomach, or duodenum. A subsequent chest x-ray showed no abnormality of the lungs. A laparoscopy conducted on May 31, however, uncovered widespread carcinomatosis throughout the abdominal area. This untreatable cancer led to a rapid decline in William's health, and he died less than three months later. His death certificate listed as the cause of death "adenocarcinoma, primary unknown" of "3 mos." duration.

Three years later, in October 1999, William's widow Gertrude filed a claim for compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (the "Act"). She sought death and funeral benefits, see id. § 909, as well as compensation for William's unpaid medical expenses, see id. § 907. BIW controverted the claim, and the matter was eventually referred to an ALJ for adjudication. A hearing was held in November 2000, at which only Gertrude testified. At the hearing and in written submissions to the ALJ, BIW argued that Gertrude's claim was untimely since it was filed over three years after William's death, in contravention of the two-year statute of limitations for death benefits due to occupational disease. See id. § 913(b)(2). Gertrude responded by averring that she first learned of a causal link between William's death, asbestos, and his employment in August 1999; therefore, she argued, she had complied with the statute of limitations. See id. (indicating that claim is timely if filed "within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability").

In May 2001, the ALJ issued a detailed decision and order rejecting BIW's argument on the statute of limitations defense and awarding benefits to Gertrude.² After reciting the facts as he found them, he concluded that Gertrude "had no reason to believe, much less suspect, that there existed a relationship between her husband's disease, his death, and his employment" until August 1999. He also concluded that there was "no basis for finding that ... [Gertrude] `should have been aware' that her husband's death was the result of his exposure to asbestos at the shipyard." He awarded death benefits to Gertrude totaling $391.22 per week, reimbursement for William's funeral and unpaid medical expenses, interest, and attorneys' fees.

On appeal, the BRB affirmed. In its unpublished, per curiam decision, the Board concluded that the ALJ had "thoroughly weighed the evidence of record, and rationally relied on claimant's credible testimony, in finding that she did not become aware of the relationship between her husband's disease, death, and employment, until 1999." It indicated that under the Act, "it is presumed that claimant's notice of injury and claim for benefits were timely filed," and that the burden was on BIW to demonstrate that the claim was untimely. See 33 U.S.C. § 920(b). After briefly surveying the facts as found by the ALJ, the Board concluded that the ALJ's decision was "supported by substantial evidence," and therefore affirmed. This petition for review ensued.

II.

The only issue in this appeal is the propriety of the ALJ's application of the Act's relevant statute of limitations, which provides in pertinent part:

[A] claim for compensation for death or disability due to an occupational disease which does not immediately result in such death or disability shall be timely if filed within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability....

33 U.S.C. § 913(b)(2). This subsection creates a "discovery rule" of accrual, deferring the commencement of the statute of limitations until an employee or claimant has or should have an awareness "of the relationship between the employment, the disease, and the death or disability." Id.

BIW focuses on one phrase in the statute: "in the exercise of reasonable diligence or by reason of medical advice should have been aware...." BIW concedes that the ALJ made sufficient factual findings to support his conclusion that Gertrude could not have been aware "by reason of medical advice" of any relationship between William's death and workrelated asbestos exposure. BIW maintains however, that the ALJ failed to make detailed factual findings concerning Gertrude's "exercise of reasonable diligence." This failure, according to BIW, constitutes legal error mandating reversal. Moreover, BIW insists that Gertrude "should have suspected enough about the asbestos-relatedness of her husband's death to have conducted an investigation and filed a claim shortly after his death." BIW urges us to rule "as a matter of law" that "no reasonable fact finder" could have concluded otherwise, and that the Board therefore erred when it affirmed the decision of the ALJ. See id. § 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.").

The scope of our review of the Board's affirmance is constrained by our precedent. "We examine the record for material errors of law or for impermissible departure from the familiar `substantial evidence' rubric in connection with the Board's assessment of the hearing officer's factual findings." Barker v. U.S. Dept. of Labor, 138 F.3d 431, 434 (1st Cir.1998); see Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st Cir.1999) (indicating that we "review[ ] the BRB's decision on legal issues de novo and determine[ ] whether the Board adhered to the `substantial evidence' standard when it reviewed the ALJ's factual findings"); Bath Iron Works v. White, 584 F.2d 569, 573-74 (1st Cir.1978); see also Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir.1979) ("Case law has established ... that this court is to review the decisions of the Benefits Review Board for errors of law, and to make certain that the BRB adhered to [the substantial evidence] provision [of 33 U.S.C. § 921(b)(3)].").

The Board held that the ALJ applied the correct legal standard in ruling on the statute of limitations question. This presents a pure question of law that we, like the Board, will review de novo. See Old Ben Coal Co. v. Dir., Office of Workers' Comp. Programs, 292 F.3d 533, 538 (7th Cir.2002) ("[A] failure by the ALJ to apply the correct legal standard presents a question of law which we review de novo."). Our review of the ALJ's application of the correct standard is another matter. Courts reviewing the application of subsection (a) of 33 U.S.C. § 913 have indicated that it is a fact-bound determination subject to deferential review.³ For example, the Fourth Circuit in Newport News Shipbldg. & Dry Dock Co. v. Parker, 935 F.2d 20 (4th Cir.1991), affirmed the BRB's reversal of an ALJ's finding that the claimant should have been aware of his latent disability. The Fourth Circuit held that "there was no substantial evidence to support the ALJ's decision." Id. at 27.

Other courts have also used the "substantial evidence" standard in reviewing § 913(a) determinations. See, e.g., Paducah Marine Ways v. Thompson, 82 F.3d 130, 135 (6th Cir.1996) ("The section 913(a) statute of limitations begins to run only when the claimant is aware or reasonably should be aware both that the injury is work-related,...