Bunge Corp. & CIGNA v. Carlisle et al

• Decision Date: 19 September 2000
• Docket Number: No. 99-3853,99-3853
• Citation: 227 F.3d 934
• Parties: (7th Cir. 2000) Bunge Corporation and CIGNA Property and Casualty, Petitioners, v. Mark Carlisle and T. Michael Kerr, Deputy Assistant Secretary of the Office of Worker Compensation Programs, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 934

227 F.3d 934 (7th Cir. 2000)

Bunge Corporation and CIGNA Property and Casualty, Petitioners, v. Mark Carlisle and T. Michael Kerr, Deputy Assistant Secretary of the Office of Worker Compensation Programs, Respondents.

No. 99-3853

In the United States Court of Appeals For the Seventh Circuit

Argued May 12, 2000

Decided September 19, 2000

Petition For Review of an Order of the Benefits Review Board BRB No. 98-1604. [Copyrighted Material Omitted] Before Ripple, Manion, and Williams, Circuit Judges.

Williams, Circuit Judge.

Respondent Mark Carlisle worked for the Bunge Corporation from 1981 to 1996. From 1986 until he left Bunge, Carlisle worked as a river operator. Upon leaving Bunge, Carlisle filed a workers' compensation claim with Bunge and its insurer, CIGNA Property and Casualty, pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. sec. 901 et seq. The LHWCA is a federal program created to compensate maritime employees for on-the-job injuries leading to death or disability. An administrative law judge ("ALJ") awarded Carlisle temporary total disability benefits from March 18, 1996, until June 13, 1997, at which time the ALJ awarded Carlisle permanent total disability benefits. On appeal, the United States Department of Labor Benefits Review Board ("BRB") affirmed the ALJ's decision. Bunge and CIGNA (collectively "Petitioners") now petition the court for review. Bunge asserts that: (1) Carlisle's claim for benefits was not timely filed; (2) Carlisle was not permanently disabled; and (3) Bunge met its burden to identify suitable alternative employment options for Carlisle. Because we find that the ALJ's decision was consistent with governing law and supported by substantial evidence, we affirm.

I

For ten of the fifteen years Mark Carlisle spent at Bunge, he worked as a river operator. As a river operator, Carlisle spent a lot of his time unloading barges, which contained various beans and grains. To unload the barges, Carlisle was required to lift heavy barge doors and to operate a joystick designed to control and direct the simultaneous movement of two huge "tugger" buckets that lift the beans and grains from the barges. On the job, Carlisle would usually have to operate joysticks for three to four hours per day, but occasionally, this would increase to eight hours per day for several weeks at a time. Bunge admits that operating the joystick involved repetitive motion of Carlisle's hand and arm.

In March 1996, Carlisle informed his supervisor at Bunge that his arms were hurting. Initially, he went to his family doctor, Dr. Gordon Jones ("Jones"), and reported that he felt pain, weakness, and loss of grip strength while performing certain work activities. Jones told Carlisle he had epicondylitis, advised him to wear his arm in a splint, and prescribed medicine for the pain. In April 1996, Carlisle saw the company physician, Dr. Gordon Eller ("Eller"). Eller twice conducted diagnostic studies of Carlisle's condition and ultimately concluded that Carlisle suffered from bilateral carpal tunnel syndrome and ulnar nerve fracture neuritis. Eller did not attribute Carlisle's condition to his work. Rather, he opined that Carlisle's condition was the result of a more gradual disease process. Eller recommended that Carlisle either have surgery to try and repair the damage or find alternative work.

On the advice of counsel, Carlisle later saw another physician, Dr. McGinty ("McGinty"), who made a similar diagnosis--carpal tunnel and cubital tunnel syndromes-- but did not recommend surgery.¹ Unlike Eller, McGinty did attribute Carlisle's condition to the nature of his work. McGinty concluded that Carlisle's condition resulted from the "repetitive and arduous use of his wrists and arms" on the job and predicted that surgery would not likely improve Carlisle's injuries. Carlisle took McGinty's advice and decided not to have surgery.

Although Carlisle stopped working in April 1996, he did not file a notice of injury until June 25, 1997 or a claim for workers' compensation until July 30, 1997. Petitioners opposed the claim arguing that Carlisle failed to file his claim within the statute of limitations under Sections 12 and 13 of the LHWCA and that, alternatively, Carlisle was not entitled to permanent total disability benefits. After a hearing, the ALJ concluded that (1) Carlisle's disease was an occupational disease, which entitled him to a two-year statute of limitations; (2) Carlisle's condition had reached maximum medical improvement and therefore he was permanently disabled; and (3) Carlisle was totally disabled since Petitioners failed to meet their burden of finding that suitable alternative employment existed for Carlisle. Now, Bunge and CIGNA petition this court for review.

II

We review the ALJ decision to determine whether it was "rational, supported by substantial evidence, and consistent with governing law." Freeman United Coal Co. v. Hunter, 82 F.3d 764, 767 (7th Cir. 1996). Here, "substantial evidence" means more than a scintilla, but not necessarily a preponderance. Id. It differs from the preponderance of evidence standard in that it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," rather than evidence showing that "it is more likely than not that the evidence establishes the proposition in question." American Grain Trimmers v. Office of Workers' Compensation Programs, 181 F.3d 810, 817 (7th Cir. 1999) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Our job on review of an ALJ decision to grant or deny workers' compensation benefits is simply to consider whether the ALJ looked at all relevant medical evidence, substituted his or her judgment for that of a qualified expert, or disregarded the opinion of a qualified expert absent evidence to the contrary or a legal basis for doing so. See Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1392 (7th Cir. 1994). After examining the ALJ's findings, we must look to the BRB's decision to confirm that the BRB appropriately reviewed the ALJ's determination and committed no legal error. As in most other instances, any question of law is reviewed de novo. Shelton v. Old Ben Coal Co., 933 F.2d 504, 506 (7th Cir. 1991).

A. Occupational Disease/Statute of Limitations

Petitioners contend that Carlisle did not file his claim for disability benefits within the appropriate statute of limitations ("SOL") period. Ordinarily, the SOL for bringing a claim under the LHWCA is one year. See 33 U.S.C. sec. 913(a). However, the ALJ found that because Carlisle's condition was an occupational disease, he was entitled to an extended two-year SOL, whereby a claim is timely

if filed within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability, or within one year of the date of the last payment of compensation, whichever is later.

33 U.S.C. sec. 913(b)(2).

Petitioners argue that the ALJ erred in classifying Carlisle's condition as an occupational disease. On March 19, 1996, Carlisle reported pain in his arm to his supervisors at Bunge. Dr. Eller examined Carlisle on April 11, 1996. He diagnosed Carlisle's condition and advised him to have surgery. However, it was not until June 13, 1997, that Dr. McGinty informed Carlisle that his condition was directly related to his work as a river operator. Carlisle filed his formal claim for compensation on July 30, 1997, which is within two years after even the earliest possible date (April 11, 1996) he could be said to have known (constructively or otherwise) about the connection between his job and his condition. Therefore, the question for the court is whether the ALJ properly classified Carlisle's condition as an occupational disease.

Congress has not explicitly defined occupational disease for LHWCA purposes. In its decision and order awarding benefits, the ALJ defined "occupational disease" as "any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally." Accord 1B A. Larsen, The Law of Workmen's Compensation, sec. 41.00, at 7- 353. Other courts have adopted this definition as well. See LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157, 160 (5th Cir. 1997) (citing Larsen's definition of occupational disease); Gencarelle v. General Dynamics Corp., 892 F.2d 173, 176 (2nd Cir. 1989) (classifying the Larsen definition as "the generally accepted definition of an occupational disease").² Two specific characteristics of an occupational disease are (1) an inherent hazard from continued exposure to conditions of a particular employment and (2) a gradual, rather than sudden onset. See 1B A. Larsen, Workman's Compensation Law, sec. 41.31 (1992).

Petitioners argue that Carlisle's condition cannot be classified as an occupational disease because the harmful conditions of his employment are not present in a "peculiar or increased degree by comparison with employment generally." However, the ALJ found otherwise. The ALJ reasoned that because both Ellers and McGinty believed Carlisle's condition to be caused by "repetitive hand and arm movements which require flexion and extension of the hands, wrists, and arms," he found persuasive McGinty's conclusion that Carlisle's condition was caused by the repetitive joystick work he had to perform as a river operator. The ALJ explained:

The duties involving repetitive hand and arm movements are peculiar to Claimant's job as River Operator, a job which he performed since August of 1986. There is no evidence of record that Claimant engaged in any other activities which required sustained repetitive movements nor is there any evidence that Claimant's condition could develop in the...