B. B. v. Dyncorp and Ins. Co. of State of Pennsylvania
| Decision Date | 30 January 2009 |
| Docket Number | BRB 08-0550 |
| Parties | B. B. Claimant-Respondent v. DYNCORP and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA/ AIG WORLDSOURCE Employer/Carrier-Petitioner DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Decision and Order Granting Benefits and Denying Relief Under Section 8(f) of the Longshore Act and the Decision and Order Denying Employer’s Motion for Reconsideration of Richard K. Malamphy, Administrative Law Judge, and the Amended Supplemental Compensation Order of Charles D. Lee, District Director, United States Department of Labor.
Joshua T. Gillelan II (Longshore Claimants’ National Law Center), Washington, D.C., and Denty Cheatham (Cheatham Palermo & Garrett), Nashville, Tennessee, for claimant.
Roger A. Levy (Laughlin, Falbo, Levy & Moresi), San Francisco California, for employer/carrier.
Kathleen H. Kim (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting Associate Solicitor; Mark A Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
Employer appeals the Decision and Order Granting Benefits and Denying Relief Under Section 8(f) of the Longshore Act and the Decision and Order Denying Employer’s Motion for Reconsideration (2004-LHC-02359) of Administrative Law Judge Richard K. Malamphy and claimant appeals the Amended Supplemental Compensation Order (Case No. 02-131801) of District Director Charles D. Lee rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (the Act). [1] We must affirm the administrative law judge’s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The determinations of the district director must be affirmed unless he has been shown to have abused his discretion, or his findings are arbitrary, capricious or not in accordance with law. Durham v. Embassy Dairy, 40 BRBS 15 (2006).
Claimant worked for employer in Bosnia beginning in January 2000 as a helicopter mechanic responsible for repairing rotor blades. Employer’s blade shop was poorly ventilated, and claimant was exposed to chemical vapors. Employer did not provide claimant with protective eyewear or respiratory equipment, and claimant’s eyes would become irritated and water. In April 2002, claimant’s vision was reduced to distinguishing shapes and he lost color vision. His visual acuity was initially measured at 20/400 in each eye. Claimant was diagnosed with atrophic maculopathy with reduced cone function and pigmentary dystrophy. Claimant sought benefits for permanent total disability, 33 U.S.C. §908(a), from his last day of employment on April 19, 2002. The parties agreed that claimant is permanently totally disabled and that he would be entitled to benefits under the Act at the maximum compensation rate. Employer contested the cause of claimant’s eye condition, and it submitted an application for Section 8(f) relief, 33 U.S.C. §908(f).
In his decision, the administrative law judge found claimant entitled to the Section 20(a) presumption, 33 U.S.C. §920(a), based on his severe eye impairment and the opinions of Drs. Roberts and Meggs that claimant’s vision loss is attributable to his working conditions of chemical exposure and poor ventilation. The administrative law judge found that the opinions of Drs. Becker and Goldberg are sufficient to rebut the presumption. The administrative law judge credited the opinion of Dr. Goldberg that claimant has a genetic eye disorder. However, the administrative law judge credited the opinions of Drs. Roberts and Meggs to conclude that claimant’s working conditions aggravated his underlying genetic eye impairment. The administrative law judge next addressed employer’s application for Section 8(f) relief. The administrative law judge found the medical records establish positive signs of an eye disorder sufficient to establish a pre-existing disability. However, the administrative law judge found that significant vision loss was not apparent to claimant or employer prior to April 2002. Accordingly, the administrative law judge found that claimant’s pre-existing disability was not manifest, and he denied the application for Section 8(f) relief. The administrative law judge ordered employer to pay claimant benefits for permanent total disability at the maximum compensation rate.
Subsequent to the administrative law judge’s decision, claimant applied for a supplemental order declaring employer in default pursuant to Section 18(a) of the Act, 33 U.S.C. §918(a). Claimant alleged that employer delayed benefit payments as of June 3, 2008, and that employer used an inappropriate maximum compensation rate. The district director stated that employer did not make timely payments from June 3 to July 8, 2008, but that employer had voluntarily paid claimant the additional compensation due under Section 14(f) of the Act, 33 U.S.C. §914(f). The district director rejected claimant’s contention that employer improperly calculated the maximum compensation rate, and he therefore rejected claimant’s request for a default order.
On appeal, employer challenges the administrative law judge’s finding that claimant’s genetic eye disorder was aggravated by his working conditions. BRB No. 08-0550. Claimant responds, urging affirmance. Employer also appeals the denial of Section 8(f) relief. The Director, Office of Workers’ Compensation Programs responds, urging affirmance. Claimant appeals the district director’s denial of a default order under Section 18. [2] BRB No. 08-0875. Employer responds, urging affirmance.
Employer contends the administrative law judge erred by invoking the Section 20(a) presumption. Specifically, employer argues claimant presented no credible evidence that his working conditions could have caused or aggravated his eye impairment. The aggravation rule provides that employer is liable for the totality of the claimant’s disability if the work injury aggravates a pre-existing condition. See Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968). In order to be entitled to the Section 20(a) presumption, claimant must establish a prima facie case by showing that he suffered a harm and that either a work-related accident occurred or that working conditions existed which could have caused or aggravated the harm. Claimant is not required to affirmatively prove that his working conditions in fact caused or aggravated the harm; rather, claimant need only establish that the working conditions could have caused or aggravated the harm alleged. See Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004); Damiano v. Global Terminal & Container Service., 32 BRBS 261 (1998); see generally U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982).
It is uncontested that claimant suffered a harm, i.e., loss of central vision acuity to 20/400 in each eye and color blindness. In finding the Section 20(a) presumption invoked, the administrative law judge credited the testimony of claimant and his co-workers, Warren Griggs and Roland Hill, that claimant was exposed to chemical solvents in a poorly ventilated workplace. Tr. at 71-72, 84-92, 199-200, 232-234; see also CXs T at 19-20, U at 19, 41. The administrative law judge also credited the testimony of Dr. Roberts and Dr. Meggs. Dr. Roberts opined that claimant’s working conditions led to the induction of, or the acceleration of, the damage to his eyes. Tr. at 328; CX R at 6. Dr. Meggs opined that claimant has organic solvent induced macula atrophy with cone dysfunction. Tr. at 444, 476; CXs S at 5, Z at 48-49. As substantial evidence supports the administrative law judge’s finding claimant established that his working conditions with employer could have caused or aggravated claimant’s eye injury, we affirm the administrative law judge’s finding claimant established his prima facie case, and his consequent invocation of the Section 20(a) presumption that claimant’s eye injury is related to his working conditions. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT) (9th Cir. 1998); Richardson v. Newport News Shipbuilding & Dry Dock Co., 39 BRBS 74 (2005).
Employer next challenges the administrative law judge’s finding, based on the record as a whole, that claimant’s eye condition is related to his working conditions. Where, as here, the administrative law judge finds that the Section 20(a) presumption is invoked and rebutted, then all relevant evidence must be weighed to determine if a causal relationship has been established, with claimant bearing the burden of persuasion. See Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994); Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).
In weighing the evidence as a whole, the administrative law judge relied on the opinion of Dr. Goldberg that claimant has a genetic eye disorder. However, he also credited the opinions of Drs. Roberts and Meggs, who disagreed with Dr Goldberg’s opinion that claimant’s exposure to solvents could not have contributed to his eye disorder. In this regard, these doctors found it significant that claimant has cone dysfunction with normal rod dysfunction, a...
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