Cordero v. Triple A Mach. Shop

• Decision Date: 29 August 1978
• Docket Number: No. 76-3206,76-3206
• Parties: Octavio CORDERO and Director Office of Workers' Compensation Programs, United States Department of Labor, Respondents, v. TRIPLE A MACHINE SHOP and Mission Equities Insurance Group, Petitioners.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1331

580 F.2d 1331

Octavio CORDERO and Director Office of Workers' Compensation

Programs, United States Department of Labor, Respondents, v. TRIPLE A MACHINE SHOP and Mission Equities Insurance Group,

Petitioners.

No. 76-3206.

United States Court of Appeals,

Ninth Circuit.

Aug. 29, 1978.

Gerald A. Falbo of Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., for petitioners.

Octavio A. Cordero, pro se.

Timothy S. Gibbons, San Francisco, Cal., for respondents; Alfred G. Albert, Acting Sol., Harry L. Sheinfeld, Atty., Laurie M. Streeter, Washington, D. C., on brief.

On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.

Before CHAMBERS, KILKENNY and HUG, Circuit Judges.

KILKENNY, Circuit Judge:

This is a petition for review of an order of the Benefits Review Board, United States Department of Labor, filed by Triple A Machine Shop, employer, and Mission Equities Insurance Group, insurance carrier. The insurance policy was issued pursuant to

the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901, Et seq.

BACKGROUND

Respondent Cordero (claimant), a 55-year old welder, had worked in that capacity with various employers for over 30 years. He had had a chronic cough since the late sixties and a shortness of breath since 1970. For several years he had worked sporadically for Triple A in its ship repair shop. He renewed his work for this company in May, 1972, and continued into August of the same year, when he was laid off for lack of work. Triple A recalled him on October 16, 1972, but he was suffering from a chest cold and unable to return on that day. He did, however, return to work on October 17th and worked through October 19th when he was unable to work. He has not been gainfully employed since that time, although he has done some work around the house.

Subsequently, claimant sought recovery under the Act for total disability. A formal hearing was held before an Administrative Law Judge (ALJ) to resolve questions concerning the nature and origin of the claimant's pulmonary condition. Petitioners contend that: (1) claimant was not totally and permanently disabled; (2) if claimant was found to be totally and permanently disabled liability should not rest totally on petitioners, but rather be apportioned among all of claimant's previous employers; and (3) if claimant was found to be totally and permanently disabled and petitioners' liability was not reduced by apportionment, § 8(f) of the Act, 33 U.S.C. § 908(f), limited petitioners' responsibility to 104 weeks of benefits because claimant was partially permanently disabled when he began working for petitioner Triple A. The balance of claimant's disability would be paid from a special fund pursuant to § 44 of the Act, 33 U.S.C. § 944.

In November, 1975, the ALJ found that claimant was permanently and totally disabled as a result of a pulmonary impairment which had been, at least, aggravated by his employment as a welder with the petitioner, Triple A, and, therefore, was entitled to benefits under the Act. Moreover, the ALJ held that petitioners' liability was not reduced by either an apportionment among claimant's previous employers or application of § 8(f) of the Act. Petitioners appealed to the Benefits Review Board of the United States Department of Labor (Board). The Board affirmed the decision of the ALJ.

SCOPE OF REVIEW

It is well settled that the Board's findings may not be disturbed unless they are unsupported by "substantial evidence on the record considered as a whole.", Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968); O'Leary v. Brown-Pacific-Maxon, Inc.,340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 483 (1951), or as stated in Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 478, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), are "forbidden by the law." The reviewing court's function is exhausted when it appears that there is warrant in the evidence and a "reasonable legal basis" for the Board's award. Cardillo, supra, at 479, 67 S.Ct. 801; Walker v. Rothschild Int'l. Stevedoring Co., 526 F.2d 1137 (CA9 1975); Nardella v. Campbell Machine, Inc., 525 F.2d 46 (CA9 1975).

ISSUES

I.

Did the Board correctly affirm the ALJ's finding that claimant was permanently totally disabled by a pulmonary impairment arising out of his employment with Triple A?

Dr. Cosentino, a specialist in chest diseases, testified that he first saw the claimant on November 22, 1972, on a referral from another doctor, because of a positive tuberculin skin test. Dr. Cosentino's examination convinced him that claimant had never had tuberculosis and that his then chest involvement was in no way related to tubercle bacilli in his body. The claimant's history disclosed that he had had some coughing and wheezing dating back ten or Petitioners' witness, Dr. Collins, an internist, after examining the claimant and reviewing the medical reports concluded that claimant suffered from chronic bronchitis and chronic obstructive lung disease. He felt that the claimant's bronchitis developed as a result of long standing cigarette smoking and prior infections. He conceded that exposure to fumes and odors of nitrogen in the course of his employment might cause temporary exacerbation of claimant's symptoms. Nevertheless, he said that the severe condition resulting in total disability developed during the period when claimant was not employed, and that the limited October, 1972, exposure could not lead to the claimant's substantial disability. Dr. Collins highlighted the physical work, as shown by the record, which claimant did around his home in replacing the roof and installing wallboard. It was his opinion that claimant's condition would have, under his work program, progressed substantially as it did, regardless of the claimant's activities or work. However, in the final analysis, he opined that inhaling welding fumes contributed, to some extent, to the permanent irritation or damage, but felt that this irritation was temporary and would abate.

fifteen years, but no evidence of allergies. After conducting rather elaborate tests, the doctor decided that claimant was suffering from obstructed airways and concluded that his condition was caused by cigarette smoking and exposure to oxides of nitrogen (welding fumes). As part of his examination, the doctor found that the claimant had a fiberous reaction in the small airways of the lung which was at one time reversible, but at the time of the examination, however, had reached what the doctor described as a plateau. Additionally, the doctor said that any type of physical exertion accelerates this condition and determined that the claimant's ability to work even in a sedentary job was now restricted to isolated days. The doctor also testified that claimant was permanently steroid dependent. On cross-examination, the doctor pointed out that there certainly was an acute aggravation of the claimant's condition in his last employment. However, he could not specifically put a percentage on the amount of the claimant's permanent condition which resulted from the inhalation of welding fumes. His final conclusion was that the basic cause of claimant's illness was cigarette smoking with exposure to welding fumes as an aggravating factor. Consequently, it was his opinion that the aggravation caused by the fumes during the last period of employment was a major factor in the claimant's permanent total disability. ¹

Paul L. DeSilva, another doctor called by the petitioners, examined the claimant and expressed the opinion that many things other than his exposure to welding fumes affected the claimant's upper respiratory condition. He believed that the three subsequent days of work during October might have, at most, increased the claimant's respiratory tract problem for a few weeks.

Under the provisions of the Act, disability is an economic concept based upon a medical foundation. Duluth, M. & I.R. Ry. v. U. S. Dept. of Labor, 553 F.2d 1144, 1149 (CA8 1977); Nardella v. Campbell Machine, Inc.,supra, at 49. The degree of disability cannot be measured by physical condition alone, but consideration must be given to the claimant's industrial history and the availability of the type of work he can do. Atlantic & Gulf Stevedores v. Director, etc., 542 F.2d 602 (CA3 1976).

The problem before us is succinctly stated in Independent Stevedore Co. v. O'Leary, 357 F.2d 812, 815 (CA9 1966), where the court said:

"If an employee is incapacitated from earning wages by an employment injury which accelerates a condition which would ultimately have become incapacitating Consequently, we must weigh the evidence to consider if it substantially supports the conclusion that the fumes aggravated claimant's disability. The doctor testifying on behalf of claimant concluded that the fumes inhaled during the three day employment period aggravated his disability. The petitioners' doctor was unable to put "a value on the amount of injury which resulted from the last three days." and admitted that he really could not determine if welding fumes or smoking caused claimant's admitted medical problem. ² Accordingly, even under the testimony of petitioners' doctor, the claimant should be viewed as suffering from a permanent total disability caused by a pulmonary impairment arising out of his employment as a welder.

in any manner, the employee is incapacitated 'because of' the employment injury, and the resulting 'disability' is compensible under the Act."

We have here a pure question of fact which was resolved against the petitioners by the ALJ and the Board. Where the ALJ relies on witness credibility in reaching his decision, our court will interfere only where the credibility determinations conflict with the clear preponderance of the evidence. NLRB v. Hospital & Institutional Workers, 577 F.2d 649 (CA9 1978); NLRB v. Western...