717 F.2d 1280 (9th Cir. 1983), 81-7494, Todd Shipyards Corp. v. Black

Docket Nº:81-7494.
Citation:717 F.2d 1280
Party Name:TODD SHIPYARDS CORP., and Firemen's Fund Insurance Co., Petitioners, v. Gerald L. BLACK, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:October 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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717 F.2d 1280 (9th Cir. 1983)

TODD SHIPYARDS CORP., and Firemen's Fund Insurance Co., Petitioners,

v.

Gerald L. BLACK, and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 81-7494.

United States Court of Appeals, Ninth Circuit

October 4, 1983

Argued and Submitted Sept. 8, 1982.

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[Copyrighted Material Omitted]

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Robert H. Madden, Detels, Draper & Marinkovich, Seattle, Wash., for petitioners.

Joshua T. Gillelan, II, Washington, D.C., Robert D. Duggan, Seattle, Wash., for respondents.

Before BROWNING, TUTTLE, [*] and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

This case is before us on an employer's petition to review a decision of the Benefits Review Board under the Longshoremen's and Harbor Workers' Compensation Act. The employer disclaims liability for the employee's occupational disease because the employee was also exposed to harmful stimuli while working for a subsequent employer not covered by the Longshoremen's Act. The employer also argues that, at the least, the damages should be apportioned. In any event, the employer contends that, under the time of injury rule, any compensation should be based on the employee's wages at the time he was exposed to the occupational hazard rather than when the disease manifested itself. The Administrative Law Judge rejected each of the employer's arguments. The Benefit Review Board affirmed all of the ALJ's holdings, despite the fact that a majority could not be mustered in support of or opposition to the ALJ's view regarding the proper interpretation of the time of injury rule. We conclude that we have jurisdiction notwithstanding the lack of agreement among the Board members, and affirm the decision of the Board. We hold that the employer is completely liable for the occupational injuries sustained by the claimant and that the employee's level of compensation must be based on his wages at the time the injury manifested itself.

I. FACTS

Gerald L. Black was employed in the State of Washington by Todd Shipyards Corporation as a welder from 1942 through 1945. During these three years, Black was

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exposed to high doses of asbestos in very confined areas. According to Black's uncontroverted testimony, the asbestos "was all over. You had to wallow in it to do your welding, everything." The asbestos material was thrown about "like snowballs," and on one occasion Black had great difficulty locating a dropped glove because "it was so dusty and dirty down there you couldn't see." In 1945, Black's doctor advised him to leave Todd because of an illness involving vomiting and weight loss. Black was subsequently drafted into the armed forces but failed his medical examination, apparently because of bronchitis and sinus trouble.

Following several years at various outdoor jobs, Black began work for Boeing Aircraft Corporation in 1951. Black worked continuously for Boeing until he was forced to quit in May of 1977 because of periods of nosebleeds and coughing up blood. During his time with Boeing, Black was also exposed to asbestos on an "off and on" basis. The asbestos at Boeing was found in gloves used to handle hot materials and in the fireproof curtains around welding booths.

On May 27, 1977, surgery was performed to remove the right upper lobe of Black's lung because of a squamous cell carcinoma. While recovering from this surgery, Black was examined by chest disease specialist Dr. Jonathan H. Ostrow. On December 19, 1977, Dr. Ostrow informed Black that he was probably suffering from a form of asbestosis caused by his occupational exposure.

As a result of this diagnosis, Black filed a claim against Todd and its insurer, Fireman's Fund Insurance Company, under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901, et seq. (1976 & Supp. III 1979) ("the Act" or "LHWCA"). The parties stipulated that Black was permanently and totally disabled when his employment with Boeing terminated in May 1977.

Todd opposed Black's claim for compensation on three grounds. First, Todd argued that Black's disabling lung disease was not related to asbestos exposure while at Todd. Second, Todd claimed that its liability was superseded by Black's subsequent employment for 26 years at Boeing. At the very least, Todd argued, liability should be apportioned between the two employers. 1 Third, Todd urged that Black's compensation should be based on his average weekly wage in 1945, which Todd claimed was the approximate "time of injury" under the Act.

Each of Todd's arguments was rejected by a Department of Labor Administrative Law Judge. Following a full hearing, the ALJ held Todd completely liable for Black's disabling disease and compensated Black based on his weekly earnings at the time the disabling disease was diagnosed in 1977.

Todd appealed this ruling to the three-member Benefits Review Board. Two members of the BRB agreed with the ALJ's conclusion that Todd should be completely liable for Black's disability. These two members, however, had differing views as to the time of injury and, therefore, the appropriate level of compensation. The third Board member believed that Todd should not be liable at all; this member refused even to consider the time of injury issue. Recognizing that two votes were necessary to take official action, the Board issued a per curiam decision affirming the ALJ's holding that compensation should be based on Black's 1977 wages. Each member of the Board then set forth his individual views.

Todd now appeals the BRB's decision. We have jurisdiction to review any "final order of the [Benefits Review] Board" in a case where the "injury occurred" in this Circuit. 33 U.S.C. Sec. 921(c) (1976).

Black, who was 63 at the time of the ALJ's hearing in 1979, died in 1981--three months before the Benefits Review Board rendered its decision. His widow, Zella

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Black, is now the claimant for survivor's benefits under 33 U.S.C. Sec. 909 (1976).

II. STANDARD OF REVIEW

The ALJ's decision is reviewed by the BRB under the "substantial evidence" standard. 33 U.S.C. Sec. 921(b)(3). The BRB must accept the ALJ's findings unless they are contrary to the law, irrational, or unsupported by substantial evidence. Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 686 F.2d 1336, 1338 (9th Cir., 1982); Director, Office of Workers' Compensation Programs v. Campbell Industries, 678 F.2d 836, 838 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). We review BRB decisions for "errors of law and for adherence to the statutory standard governing the Board's review of the administrative law judge's factual determinations." Bumble Bee SeaFoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327, 1329 (9th Cir.1980). Because the BRB does not make policy, its interpretations of the LHWCA are not entitled to any special deference. Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446, 454 n. 18 (1980); Duncanson-Harrelson, 686 F.2d at 1339.

III. TODD'S LIABILITY--THE LAST COVERED EMPLOYER RULE

There is no dispute that Black was exposed to injurious doses of asbestos at both Todd and Boeing. Moreover, there is little doubt, according to the expert medical testimony presented to the ALJ, that this asbestos exposure caused Black's disabling lung disease. Indeed, Todd does not dispute the ALJ's finding--supported by ample medical testimony--that Black's inhalation of asbestos was causally related to his lung disease and ultimate disability. Rather, Todd's argument throughout has been that it is completely absolved of liability because of Black's superseding exposure to asbestos during his 26 years at Boeing. In the alternative, Todd contends that liability should be apportioned between the two employers. We reject both of these arguments, as did the ALJ and a majority of the BRB.

Section 3(a) of the LHWCA provides that "[c]ompensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States." 33 U.S.C. Sec. 903(a) (1976). Black was exposed to the dangerous asbestos while being employed by Todd upon navigable waters and is thus covered by the Act. 2 Black's employment at Boeing, however, is apparently not covered under the LHWCA.

In a situation where two LHWCA employers may be responsible for a work-related injury or disease, 3 the last employer is completely liable. After a full examination of the Act's legislative history, the Second Circuit found that

Congress intended that the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award.

Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). See also Cordero v. Triple A Machine Shop, 580

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F.2d 1331, 1336-37 (9th Cir.1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1223, 59 L.Ed.2d 459 (1979); General Dynamics Corp. v. Benefits Review Board, 565 F.2d 208, 212 (2d Cir.1977).

Congress intended that the last employer be completely liable because of "the difficulties and delays which would inhere in the administration of the Act" if attempts were made to apportion liability among several responsible employers. Travelers Insurance Co. v. Cardillo, 225 F.2d at 145. Moreover...

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