Bath Iron Works Corp. v. White

• Decision Date: 03 October 1978
• Docket Number: No. 78-1002,78-1002
• Citation: 584 F.2d 569
• Parties: BATH IRON WORKS CORPORATION and Commercial Union Companies, Petitioners, v. Russell E. WHITE, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 569

584 F.2d 569

BATH IRON WORKS CORPORATION and Commercial Union Companies Petitioners, v. Russell E. WHITE, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 78-1002.

United States Court of Appeals First Circuit.

Argued May 4, 1978.

Decided Oct. 3, 1978.

Robert F. Hanson, Portland, Me., with whom Stephen Hessert and Norman & Hanson, Portland, Me., were on brief, for petitioners.

Joshua T. Gillelan, II, 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.

Patrick N. McTeague, Brunswick, Me., with whom McTeague, Higbee & Tierney, Brunswick, Me., was on brief, for claimant-respondent.

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

BOWNES, Circuit Judge.

The Benefits Review Board of the Department of Labor, affirming in part the decision of the administrative law judge, ordered Bath Iron Works Corp. and its insurance carrier, Commercial Union Insurance Co. (Bath), to pay claimant, Russell E. White, a Bath employee, permanent partial disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §§ 901 Et seq. (Supp. V 1975). On this petition for review, Bath seeks to have the compensation award set aside, arguing (1) that the evidence fails to support the administrative finding that White has an occupational injury, and (2) that the Board erred in concluding that White's asbestosis ¹ resulted in a compensable disability. We affirm the decision of the Board.

Except for brief periods, claimant White worked for Bath as a flangecoverer and pipecoverer from 1939 to 1967. This work resulted in White's extensive exposure to asbestos dust. In July, 1966, White was tested for asbestosis, and the probable presence of that disease in his lungs was diagnosed. Claimant's union informed Bath that White should be transferred to an asbestos free environment. White was not transferred until February, 1967, at which time he was assigned to the machine shop. His duties in the machine shop, however, continued to subject him to substantial exposure to asbestos dust until sometime in September of 1974. White did not have the experience or skill to qualify for the top rated pay as a machinist and his classification was changed from that of a skilled laborer in pipecovering to that of a semi-skilled laborer in the machine shop. This transfer normally would have resulted in a nineteen percent cut in pay, but Bath continued to pay White at his prior rate as a pipecoverer. Since 1967, White had worked in the machine shop, except for a period between September, 1974, and December, 1975, when he was disabled by an occupationally unrelated vascular condition.

White filed a claim for benefits under the Act for permanent partial disability from the date of his transfer in February, 1967, to September, 1974, and for permanent total disability thereafter, alleging that he was disabled by pulmonary and vascular conditions related to his employment. After a hearing, the administrative law judge found that White's occupational exposure to asbestos had aggravated a pre-existing pulmonary condition, and awarded compensation for a thirty percent permanent partial disability from February, 1967. ² On review, the Board upheld the administrative law judge's finding that White suffered from an occupational disease, asbestosis. The Board concluded that, regardless of whether White's exposure to asbestos had aggravated other nonoccupational pulmonary problems, the fact that his asbestosis had resulted in his inability to continue employment as a skilled pipecoverer and had required his transfer to a semi-skilled position constituted a compensable disability of nineteen percent, reflecting the decrease in White's earning capacity which attended his transfer. Before turning to the propriety of the Board's decision, we briefly review the medical evidence upon which it is based.

White's primary physical complaints involve chest pains and shortness of breath. Medical evidence in the record indicates that White suffers from heart and vascular ailments, unrelated to asbestos exposure, which resulted in a period of hospitalization and disability in 1974-75. It also reveals that he suffers from longstanding chronic obstructive lung disease, consisting of a combination of chronic bronchitis, emphysema and healed tuberculosis. Medical experts testifying at the hearing concluded that there was no relationship between White's pulmonary condition and his vascular maladies, and further that the chronic obstructive lung disease, which was estimated to have produced a twenty to thirty percent impairment of lung functions, was not caused by asbestosis. Most of the medical testimony focused on the question of whether White's preexisting lung condition had been aggravated by asbestosis. Dr. Lord, a pulmonary specialist, testified that he did not believe that asbestosis contributed to the diagnosed degree of lung impairment. He stated, however, that there was uncertainty in separating asbestosis from chronic obstructive lung disease as causal factors in White's shortness of breath.

In addition to the testing which White underwent in 1966, the medical testimony clearly supports the finding that White has had asbestosis since 1966. Dr. Lord so concluded and testified that it was the result of White's occupational exposure. Dr. Lord further related that White's asbestosis should have resulted in his exclusion from all work involving exposure to asbestos, because further exposure after 1966 would have been "foolhardy," involving a "great risk" of "increasing the severity of pulmonary disability."

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'Keefe 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 bear it. Swinton v. J. Frank Kelly, Inc., 180 U.S.App.D.C. 216, 222-26, 554 F.2d 1075, 1081-85, Cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); See Wheatley v. Adler, 132 U.S.App.D.C. 177, 182-84, 407 F.2d 307, 312-14 (1968).

In challenging the Board's compensation award, Bath does not and, in the face of this record, cannot properly dispute the sufficiency of the findings that White contracted asbestosis from his employment and that the disease rendered continuing employment involving asbestos exposure extremely hazardous. Rather, Bath raises two principal contentions. First, it argues that substantial evidence was lacking to support the administrative law judge's conclusion that asbestosis aggravated White's pre-existing pulmonary condition. Given the deference which must be afforded the administrative law judge's findings and inferences, it may be doubted whether Bath could prevail on this claim. However, like the Board, we believe that this issue need not be reached because White is entitled to compensation because of his asbestosis without more.

To establish the right to disability benefits, an employee must show, aided in certain contexts by the...