Bath Iron Works Corp. v. White, No. 78-1002

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore COFFIN, Chief Judge, CAMPBELL and BOWNES; BOWNES
Citation584 F.2d 569
PartiesBATH 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.
Docket NumberNo. 78-1002
Decision Date03 October 1978

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.

Page 572

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.

Page 573

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...

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54 practice notes
  • Synovus Financial Corp. v. Board of Governors of Federal Reserve System, No. 89-1394
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 27, 1992
    ...FERC, 824 F.2d 417, 435 (5th Cir.1987); Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 477 (7th Cir.1984); Bath Iron Works Corp. v. White, 584 F.2d 569, 573 n. 2 (1st Cir.1978). 5 The majority, however, relies on Page 443 California Public Broadcasting Forum v. FCC, 752 F.2d 670 (D.C.Cir.1985......
  • Rosario-Torres v. Hernandez-Colon, ROSARIO-TORRES
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 12, 1989
    ...without initiating the particular attack in his own notice of appeal and the briefing thereon. See, e.g., Bath Iron Works Corp. v. White, 584 F.2d 569, 573 n. 2 (1st Cir.1978); see also 9 J. Moore, Moore's Federal Practice p 204.11 (2d ed. 6 Justice Story echoed and elaborated upon Chief Ju......
  • Office of Workers' Compensation, v. Greenwich Collieries, 93744
    • United States
    • United States Supreme Court
    • June 20, 1994
    ...("Doubts, including the factual, are to be resolved in favor of the employee or his dependent family"); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (CA1 1978) ("the judicial policy [is] that 'all doubtful questions are to be resolved in favor of the injured employee' . . . in order to......
  • Air America, Inc. v. Director, Office of Workers' Compensation Programs, No. 78-1318
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 2, 1979
    ...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)." Bath Iron Works Corp. v. White, 584 F.2d 569, 573-74 (1st Cir. 1978). On questions of law rather than fact, the degree of deference, if any, we are to afford the Review Board's view depe......
  • Request a trial to view additional results
54 cases
  • Synovus Financial Corp. v. Board of Governors of Federal Reserve System, No. 89-1394
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 27, 1992
    ...FERC, 824 F.2d 417, 435 (5th Cir.1987); Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 477 (7th Cir.1984); Bath Iron Works Corp. v. White, 584 F.2d 569, 573 n. 2 (1st Cir.1978). 5 The majority, however, relies on Page 443 California Public Broadcasting Forum v. FCC, 752 F.2d 670 (D.C.Cir.1985......
  • Rosario-Torres v. Hernandez-Colon, ROSARIO-TORRES
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 12, 1989
    ...without initiating the particular attack in his own notice of appeal and the briefing thereon. See, e.g., Bath Iron Works Corp. v. White, 584 F.2d 569, 573 n. 2 (1st Cir.1978); see also 9 J. Moore, Moore's Federal Practice p 204.11 (2d ed. 6 Justice Story echoed and elaborated upon Chief Ju......
  • Office of Workers' Compensation, v. Greenwich Collieries, 93744
    • United States
    • United States Supreme Court
    • June 20, 1994
    ...("Doubts, including the factual, are to be resolved in favor of the employee or his dependent family"); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (CA1 1978) ("the judicial policy [is] that 'all doubtful questions are to be resolved in favor of the injured employee' . . . in order to......
  • Air America, Inc. v. Director, Office of Workers' Compensation Programs, No. 78-1318
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 2, 1979
    ...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)." Bath Iron Works Corp. v. White, 584 F.2d 569, 573-74 (1st Cir. 1978). On questions of law rather than fact, the degree of deference, if any, we are to afford the Review Board's view depe......
  • Request a trial to view additional results

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