Air America, Inc. v. Director, Office of Workers' Compensation Programs

• Decision Date: 02 May 1979
• Docket Number: No. 78-1318,78-1318
• Citation: 597 F.2d 773
• Parties: AIR AMERICA, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Joseph F. Kerch, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 773

597 F.2d 773

AIR AMERICA, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Joseph F. Kerch Respondents.

No. 78-1318.

United States Court of Appeals First Circuit.

Argued Dec. 4, 1978.

Decided May 2, 1979.

Jeremy G. Zimmermann, New Haven, Conn., with whom Marshall B. Babson, and Wiggin & Dana, New Haven, Conn., were on brief, for petitioner.

Matthew Shafner, Groton, Conn., with whom Stephen C. Embry, and O'Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., were on brief, for respondent/claimant.

Mary A. Sheehan, Atty., U. S. Dept. of Labor, Washington, D. C., with whom Carin Ann Clauss, Sol. of Labor, and Laurie M. Streeter, Associate Sol., Washington, D. C., were on brief, for respondent, Director, Office of Workers' Compensation Programs.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This case involves a claim for compensation and benefits under the Longshoremen's and Harbor Workers' Act as amended, 33 U.S.C. §§ 901-50 (the Act), as extended by the Defense Base Act, 42 U.S.C. §§ 1651-54. Claimant's former employer, Air America, Inc., petitions for review of a decision of the Benefits Review Board in which claimant was found to be totally disabled.

Claimant became a pilot for Air Asia, Inc., predecessor of Air America, Inc., in Southeast Asia in 1965, after having retired from the Air Force. In early 1974, while on assignment for Air America, he contracted what was later diagnosed as "tropical sprue," a disease indigenous to the area in which he was flying. His initial symptoms included nausea, diarrhea, and body aches, and he soon developed other symptoms including numbness in his arms, legs, and feet, and muscle spasms. Claimant was on sick leave for two periods, January 7-11 and January 29-February 11, 1974, specifically due to "peripheral neuritis with muscle spasm." He resumed his flying duties on February 12, on which day he also passed his semi-annual flight physical.

Claimant continued to fly for Air America through May 31, 1974, although during this period he received frequent medical attention and his symptoms persisted. His symptoms during this period included numbness in his legs, feet, and hands, lack of control in his feet, weakness and sluggish reflexes in his lower limbs, and lack of coordination. The airplane claimant operated had some foot controls, but during his last few months he served as co-pilot, with the pilot doing most of the flying. At no time, despite repeated consultation with Air America physicians, was claimant restricted in his flying duties because of medical disability, although his flying time apparently was reduced to accommodate his frequent medical appointments.

Claimant left Air America on June 2, 1974, in part because of his desire not to be stationed in Saigon and in part because of his desire to obtain medical treatment in the United States. Claimant was 53 years old at the time.

After returning to the United States, claimant's symptoms persisted, and he continued to seek medical diagnosis and treatment. His illness was diagnosed as tropical sprue in October 1975. That disease entails a malabsorption of food and consequent nutritional deficiencies, which can cause symptoms such as claimant's. While claimant received treatment, he experienced continuing symptoms including numbness and dragging of feet, although there was some improvement. One physician stated that, as of late 1976 and early 1977, claimant had "no loss of ability to orient himself or sense position," which sometimes results from tropical sprue, but did have "a loss in sensation to differentiate clearly pin prick and bluntness." The doctor stated further, "(t)here is no way of definitely telling how far improvement will go with continued B-12 therapy, but some improvement can be expected."

The ALJ found with regard to claimant's symptoms the following:

"At the time of the hearing the claimant's symptoms were: a tendency to drag his feet, his ankles sometimes turned, numbness in his feet, especially his toes, sometimes worse than others, cramps in the calves of his legs, especially the right leg, ringing in his ears, easy bruising on the backs of his hands and splinter hemorrhages that came and went. When he had the splinter hemorrhages he could still use his hands and feet but the areas under the nails became tender and numb. The ringing in his ears came and went and did not seem to cause him any difficulty. The cramps in the calves of his legs were less frequent and his fatigue factor had improved considerably with the tetracycline and folic acid. He had a hearing loss, as do most pilots. His diarrhea and gas problems have diminished and largely disappeared. No doctor has told the claimant that there is no more that can be done for him and no doctor has told him that his condition is permanent."

Claimant claimed a temporary total disability from January 7-11, 1974 and a permanent total disability at all times after January 29, 1974. The ALJ found instead that he was totally disabled only during the two brief periods in early 1974 when he took sick leave, and that after February 19, 1974 he had a temporary partial disability:

"I find the claimant's wage earning capacity has diminished by approximately 35 percent following the illness and the periods of temporary total disability. With some numbness in his hands and feet the claimant would have difficulty maneuvering the controls of an aircraft. If he were to seek work elsewhere on the open market as a pilot his disability would probably become obvious and adversely affect his capability to find and perform such work. The claimant still had some of these residuals from the illness at the time of the hearing and improvement was expected to be gradual. Thus, I conclude that the claimant's temporary partial disability existed from February 19, 1974 to the present and continuing, but for a period not to exceed five years, because the Act limits temporary partial disability to a maximum of five years. Section 8(e) of the Act."

The ALJ did not explain how he arrived at the 35% Figure.

The Benefits Review Board, upon cross-petitions for review, affirmed the ALJ's finding of temporary total disability during the January 7-11 and January 29-February 11 periods, and agreed with the ALJ's temporary 35% Partial disability finding up to June 2, 1974. The Review Board reversed the ALJ's finding of temporary partial disability subsequent to that date and instead found claimant to have a permanent total disability thereafter. The Board did not dispute the ALJ's findings as to the nature of the symptoms. The basis for the Board's conclusion that the disability was total was that the symptoms found by the ALJ made him totally disabled from employment as a pilot, and that the Company failed to show the availability of suitable alternate employment. The Board determined claimant's disability to be permanent because of the absence of any medical prognosis of eventual recovery.

The Company challenges the Board's order on the ground that the evidence does not support a finding of any disability. In passing on this and related questions, we must take into account the two-level administrative process which carves out for an ALJ a stronger role than is often true in administrative proceedings. Under the Act, findings of fact of an ALJ are not open for de novo consideration by the Benefits Review Board. Rather, the Board reviews the ALJ's findings only to see if they are "supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.301; Offshore Food Service, Inc. v. Murillo, 1 Benefits Review Bd. Serv. (MB) 9, 10 (1974), Aff'd, 524 F.2d 967 (5th Cir. 1975). The Review Board's order is then appealable to a court of appeals, 33 U.S.C. § 921(c), which exercises the same limited standard of review.

We recently outlined the principles governing our review function as follows:

"At the outset, we note that the scope of our review of the Board's decision is narrow. Administrative findings of fact are to be accepted unless they are unsupported by substantial evidence in the record considered as a whole. O'Keeffe v. Smith Associates, 380 U.S. 359, 363, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 483 (1951); 33 U.S.C. § 921(b)(3) (Supp. V 1975). Moreover, that the facts permit diverse inferences is immaterial; if supported by the evidence, the inferences drawn by the administrative law judge are conclusive. O'Keeffe v. Smith Associates, supra; Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). When a decision of the Board is before the court of appeals, review is limited to errors of law, including the question of whether the Board adhered to the substantial evidence standard in its review of factual findings. Presley v. Tinsley Maintenance Service, supra; Potenza v. United Terminals, Inc., 524 F.2d 1136, 1137 (2d Cir. 1975). And even when the issue involves the 'application of a broad statutory term or phrase to a specific set of facts,' the Board's decision will be affirmed so long as it has a 'reasonable legal basis.' Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 478-79, 67 S.Ct. 801, 91 L.Ed. 1028 (1947).

"Finally, we also bear in mind the humanitarian nature of the Act, manifest by the statutory requirement that 'it . . . be presumed, in the absence of substantial evidence to the contrary, (t)hat the claim comes within the provisions of' the Act, 33 U.S.C. § 920(a); and by the judicial policy that 'all doubtful questions are to be resolved in favor of the injured employee,' Young & Co. v. Shea, 397 F.2d 185, 188 (5th Cir. 1968), Cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969), in order to place the burden of possible error on the employer who is better able to...