Fineman v. Newport News Shipbuilding and Dry Dock Co.
| Decision Date | 22 July 1993 |
| Docket Number | BRB 91-1623,91-1623A |
| Parties | ESTELLE FINEMAN (Widow of CHARLES FINEMAN), Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Self-Insured Employer-Petitioner Cross-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Cross-Petitioner |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order and the Decision and Order on Reconsideration of Richard K. Malamphy, Administrative Law Judge, United States Department of Labor.
Gary R. West (Patten, Wornom & Watkins), Newport News Virginia, for claimant.
Antje E. Huck, Newport News, Virginia, for employer.
Karen B. Kracov (Thomas S.Williamson, Jr., Solicitor of Labor; Carol DeDeo, Associate Solicitor; Janet R. Dunlop, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: SMITH, DOLDER and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order and the Director, Office of Workers' Compensation Programs (the Director) cross-appeals the Decision and Order and the Decision and Order on Reconsideration (89-LHC-2309) of Administrative Law Judge Richard K. Malamphy awarding benefits 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. (the Act). 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 applicable law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
The facts of this case are undisputed. Decedent worked as a shipfitter for employer from 1952 until his retirement in 1977, and during the course of his employment, he was exposed to asbestos. On or about December 25, 1986, decedent was diagnosed with asbestosis, and on October 11, 1988, Dr. Scheinberg determined decedent had an 18 percent impairment to the whole person. Emp. Ex. 2. Decedent and employer agreed that he was entitled to permanent partial disability benefits pursuant to Section 8(c)(23) of the Act, 33 U.S.C. §908(c)(23) (1988), based on an average weekly wage of $302.66, at a rate of $36.32 per week, from December 25, 1986 and continuing. Id. On March 30, 1989, employer filed an application for Section 8(f), 33 U.S.C. §908(f), relief with the district director.[1] Decedent died on August 15, 1989. According to Dr. Childs, who completed the death certificate, the primary cause of death was a cerebellar hemorrhage. Interstitial lung disease and asbestosis were listed as "other significant conditions." Cl. Ex. 7; Emp. Ex. 6. Therefore, claimant, decedent's widow, filed a claim for death benefits pursuant to Section 9 of the Act, 33 U.S.C. §909 (1988).
A hearing was held on February 6, 1991, wherein claimant's entitlement to death benefits and employer's entitlement to Section 8(f) relief were at issue. Decision and Order at 5. The administrative law judge invoked the Section 20(a), 33 U.S.C. §920(a), presumption linking decedent's injury and death to his employment, and he found that decedent's death was "hastened by his underlying lung impairment." Decision and Order at 6. Therefore, he awarded claimant death benefits. Id. Additionally, he awarded claimant permanent partial disability benefits for decedent's 18 percent impairment at the rate of $27.24 per week from August 15, 1989, and funeral expenses of $3, 000. 33 U.S.C. §908(c)(23), 909(a)(1988). He also found that employer is entitled to relief from continuing liability for compensation under Section 8(f). Decision and Order at 7.
On reconsideration, the administrative law judge amended his decision to reflect claimant's entitlement to permanent partial disability benefits at a rate of $36.32 per week for 104 weeks from December 25, 1986. He ordered the Special Fund to assume payments of any remaining permanent partial disability compensation at the expiration of 104 weeks, and death benefits beginning August 15, 1989. Further, the administrative law judge ordered the Special Fund to pay decedent's funeral expenses. Decision and Order on Recon. at 2. Employer appeals the administrative law judge's award of death benefits, and claimant responds, urging affirmance. The Director appeals the award of Section 8(f) relief and the order to pay funeral expenses out of the Special Fund.[2] Employer has not responded to the Director's appeal.
Employer contends the award of death benefits should be reversed because decedent's death was not caused by work-related asbestosis but was instead caused by a non-occupational stroke. Claimant responds, stating that the administrative law judge's finding that decedent's death was hastened by asbestosis is supported by substantial evidence and that controlling law for this principle is found in Woodside v. Bethlehem Steel Corp., 14 BRBS 601 (1982) (Ramsey, C.J., dissenting). Employer, however, urges the Board to adopt Judge Ramsey's dissent in Woodside, lest any "small" degree of asbestosis result in an employer's liability for death benefits, regardless of the actual cause of an employee's death.
Section 9 of the Act provides for death benefits to certain survivors "if the injury causes death." 33 U.S.C. §909 (1988). The Board previously has addressed the scope of Section 9 where the immediate cause of death was not work-related. See Woodside, 14 BRBS at 601. In that case, decedent Woodside retired from employment in 1968. He was diagnosed with tuberculosis, pneumonia, chronic obstructive pulmonary disease (COPD), and chronic anemia in July 1973, and in December 1973, he was diagnosed with renal cancer. Woodside died on September 3, 1977 due to renal cell carcinoma, pneumonitis, and congestive heart failure. Woodside, 14 BRBS at 601. Claimant, Woodside's widow, alleged that Woodside's COPD was employment-related and that it hastened Woodside's death which was caused primarily by renal cancer. The administrative law judge denied benefits, finding that neither Woodside's lung disease nor his death was work-related. Id. at 602. The Board vacated the decision, holding that the administrative law judge failed to invoke the Section 20(a) presumption given the undisputed fact that Woodside was exposed to substances at work which could have caused his lung problems. The Board remanded the case for the administrative law judge to consider whether employer rebutted the presumption. Id. Further, the Board held that if employer did not rebut the presumption, then causation is established and the administrative law judge must next consider whether Woodside's COPD caused his death. Id. at 603.
Citing Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)(en banc), Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966), and Avignone Freres, Inc. v. Cardillo, 117 F.2d 385 (D.C. Cir. 1940), the Board in Woodside noted:
[I]t is well-established that, if an injury aggravates, exacerbates, accelerates, contributes to, or combines with a previous infirmity, disease, or underlying condition, the resultant condition is compensable.... This rule is consistent with the maxim that "to hasten death is to cause it."
Woodside, 14 BRBS at 603. The Board then concluded:
Although Judge Ramsey agreed with the Board's decision to remand the case for the administrative law judge to determine whether employer rebutted the Section 20(a) presumption, he disagreed with the majority's application of the maxim "to hasten death is to cause it." He stated he would apply this rule only in cases "where there is some direct connection between the occupational disease or injury which allegedly hastened the death and the non-work-related disease or injury which was the immediate cause of death." Woodside, 14 BRBS at 603. Judge Ramsey determined that no such relationship existed in Woodside, and that he did "not believe it was the intent of Congress to compensate widows where the only effect of decedent's work injury was to shorten decedent's life by mere seconds." Id. at 604.
In the instant case, decedent was diagnosed with work-related asbestosis and pulmonary fibrosis in December 1986. Cl. Ex. 6 at K. In August 1989, while watching television, decedent suddenly developed a severe left-sided headache, became diaphoretic, and experienced marked shortness of breath. Decision and Order at 4. He was taken to the hospital and diagnosed with intracranial bleeding, a cerebellar hemorrhage, COPD and hypertension. Cl. Ex. 6 at A. Decedent lapsed into a coma following surgery, and his doctors indicated the prognosis was poor because he had suffered an irreversible brain stem injury. The respirator was removed, and decedent later died. Id. at B-C. According to the death certificate, the immediate cause of death was a cerebellar hemorrhage, an underlying cause was hydrocephalus, and "other significant conditions contributing to death but not resulting in the underlying cause" were interstitial lung disease and asbestosis. Cl. Ex. 7; Emp. Ex. 6.
Dr Shaw, a doctor who treated decedent, was deposed by the parties. He noted that marked shortness of breath is not a normal symptom of a stroke victim but generally occurs in those patients who also have an underlying lung disease. Cl. Ex. 10 at 6-7. While he acknowledged that decedent's major medical problem was the...
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