Champion v. S&M Traylor Bros.

• Decision Date: 08 October 1982
• Docket Number: No. 81-1713,81-1713
• Citation: 223 U.S.App.D.C. 172,690 F.2d 285
• Parties: Bobby L. CHAMPION, Petitioner, v. S&M TRAYLOR BROTHERS and Lumbermen's Mutual Casualty Company, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 285

690 F.2d 285

223 U.S.App.D.C. 172

Bobby L. CHAMPION, Petitioner, v. S&M TRAYLOR BROTHERS and Lumbermen's Mutual Casualty Company, Respondents.

No. 81-1713.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 15, 1982.

Decided Oct. 8, 1982.

Charles L. Janes, Columbus, Ohio, for petitioner.

Robert B. Adams, Washington, D. C., was on the brief for petitioner, also entered an appearance for petitioner.

Arthur V. King, Rockville, Md., for respondents.

Before WALD and MIKVA, Circuit Judges, and OBERDORFER, ^* United States District Court Judge for the District of Columbia.

Opinion for the Court filed by District Judge OBERDORFER.

OBERDORFER, District Judge:

The petitioner, Bobby L. Champion, seeks review ¹ of a Decision and Order of the Benefits Review Board (Board) which affirmed an order of an Administrative Law Judge (ALJ) that Champion was entitled to compensation of only $166.96 per week for five weeks, or a total of $834.40. ² The ALJ found that Champion suffered a temporary total disability when his dormant childhood asthmatic condition was aggravated by dust and fumes to which he was exposed in the course of his employment as a construction laborer in the tunnel for the Washington, D. C. subway system. However, the ALJ also concluded that Champion was not entitled to any compensation on account of his continuing total disability from persisting asthma and morbid obesity, because "it has not been established that there was any causal relationship between Claimant's employment and such disability ...." App. 6.

We reverse, because the Board erroneously approved the ALJ's action despite respondent's failure to adduce substantial evidence severing the causes and consequences of Champion's temporary total disability from his permanent disability.

Specifically, the ALJ, with Board approval, failed properly to apply:

(1) Congress's requirement that "it shall be presumed, in the absence of substantial evidence to the contrary ... (t)hat the claim comes within the provisions of the Act." ³

(2) Court decisions that "the employers' 'substantial evidence' must be 'specific and comprehensive enough to sever the potential connection' between the disability and the work environment," ⁴ and that doubtful questions, including factual ones like work-relatedness, must be resolved in favor of claimants. ⁵

(3) The command of the Supreme Court that the Act "must be liberally construed in conformance with its purpose and in a way which avoids harsh and incongruous results." ⁶

The Supreme Court, as well as the circuit courts and the Board, has long emphasized the "humanitarian nature" of the Act "as a justification for its liberal construction." E.g., O'Keeffe v. Smith, Hinchman & Grylls Assoc., 380 U.S. 359, 362, 85 S.Ct. 1012 1014, 13 L.Ed.2d 895 (1965); Friend v. Britton, 220 F.2d at 821. We are also reminded by this case that Congress made a pragmatic trade-off for this humanitarianism. The Act strictly limits employers' liability for industrial accidents and makes their exposure from such accidents more predictable and their insurance coverage less costly. Thus, Section 5(a) of the Act makes an employer's liability under it "exclusive and in place of all other liability of ... employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death." 33 U.S.C. § 905(a). Lawyers experienced in prosecuting, defending, or judging well-prepared jury trials growing out of serious medical problems will appreciate the dramatic effect of this trade-off. For example, the exposure of this employer and its insurance carriers in a trial at law of Champion's claim (available if the Act had not barred it) could be different by cosmic proportions from their limited liability under the Act. This legislative trade-off is a further basis for the courts' practice of construing this humanitarian law so as to resolve doubts in favor of the employee and their insistence that the Board and ALJ's do the same.

We turn then to a relatively extensive exposition of the administrative record that displays the several material "doubts" that the ALJ resolved in a manner that is inconsistent with the Act as authoritatively construed.

II.

A.

In June 1974, when Champion went to work for respondent as a construction worker, he was 23 years old, was 5 feet 11 inches tall, and weighed 190 pounds. As a child, Champion had asthma attacks, but the asthma had been dormant since he was 17. ⁷ He finished the 11th grade at Eastern High School, where he played tennis, basketball, volleyball, and soccer and had won a trophy in the 440-yard track competition. After high school, he played semi-professional football. At the same time, he earned his living primarily as a construction laborer. He had also worked as a truck driver, a cement finisher, and after vocational training at Armstrong School, a filing clerk. Although Champion was not married, he had three children whom he supported in his home. He had a mother who lived elsewhere.

In June 1974, Champion's first work for respondent was with a crew of miners who were digging a tunnel about 60 feet below the surface for what is now the WMATA subway. Initially, he worked an average of 50 hours per week, a minimum of 40, and a maximum of 80. His crew served a grouting machine, which mixed cement with water and sprayed it behind miner plates securing the walls of the tunnel as it was being dug. The crew's task included breaking cement bags, a process that threw off substantial cement dust. App. 67-68. The grout machine and the 35- and 50-ton locomotives also gave off fumes in the underground work area. App. 81.

Thereafter, Champion worked on a train in the tunnel. His tasks included taking up railroad ties, carrying them to a car, and throwing them on. In addition, he was part of a three man crew that ran a dirt blower, a task that sometimes required shooting water into a corner, causing the dirt to blow back into the faces of the crew. App. 83-84. Masks were prescribed for the blower crew, but, according to Champion, they were not available "the majority of the time." App. 83. After two or three weeks in the blower crew, Champion began work about a quarter of a mile from the entrance as a laborer on the clean up crew, cleaning up all the trash and garbage in the tunnel. His job consisted of "spading, mucking, and hauling heavy objects." App. 65.

When Champion began work as a miner, he was able to "jog and run all the way up the steps." App. 82. After about 3 months, he "had to walk up those steps. All that stuff was getting in my throat." Id.

On his job, Champion worked under Foreman Robert Stewart on two assignments. On the first assignment, Champion did not appear to Stewart to have any breathing problems and was a "good worker," "outstanding;" Stewart had no "squawks" about Champion. App. 69. The second time, however, he coughed, was out of breath, "over-exhausted," and spit up blood when carrying heavy objects. App. 69-70, 73. According to Champion, as his employment progressed, "I had short wind and I felt my chest was getting real tight, and I started spitting up blood and my throat got like somebody was choking me." App. 86.

On February 25, 1978, he became so sick that he asked the safety man to take him to the G.W. University Hospital. App. 87. The safety man said "he couldn't because (Champion) was getting to be a hazard on the job." Id. So Champion caught a taxi and took himself to the emergency room at G.W. He testified that the G.W. emergency room staff "kept me for a long time until they could relieve me because I was really short winded." Id. The G.W. staff sent Champion to D.C. General Hospital because he had only "job insurance." Id. He was admitted the same day and remained intermittently for about three months. The D.C. General staff examined him, tested him, did a biopsy, and made diagnoses of asthma and sarcoidosis. Medication included prednisone. ⁸

According to Champion, this and other medication helped his breathing difficulty "somewhat," but he "never really got relief. I'd get relief down to a certain place. I'm not fully relieved." App. 90. Although until then he had always controlled his weight, within a year after he was hospitalized he gained 50 pounds. At the time of the hearing in 1979, he weighed about 320 pounds. App. 90. He was also "allergic to a lot more things," and his sex life had changed. He had to sleep "sideways" because if he slept deeply, flat on his back, the fluid in his chest might "drown" him. He coughed "all the time," so much so that he sometimes could not talk for a couple of days a week, "sometimes longer." App. 91.

Although D.C. General prescribed a 900 calorie diet to control Champion's weight, he "sometimes" ate as much as 18 ounces of steak, or would have 2 or 3 sandwiches a night, because "... if somebody made me mad, I get emotional and I eat a lot. That's when I forget about the diet." App. 50.

Champion testified that:

It's like if someone in the courtroom makes me mad, I get exhausted; and it seems like my chest gets tight and I get real balled up in a knot, and the next thing you know my blood gets high, and I get very short of wind.... I get to coughing so bad I have to hold my head because I get dizzy.

App. 106-7.

As of the time Champion came out of the hospital in August 1975, he had lost his three children because he could not support them. ⁹ He was on welfare ¹⁰ and living with his mother, who was taking care of him. App. 102. Champion testified that he "was used to making a normal living, making a decent salary.... Now with welfare, it's enough to make anybody get gray. I wasn't used to living that way, and it bothered me emotionally. It changed my sex life also. That tore me up." App. 101-102.

B.

Champion presented no live medical...