Gardner v. Director, Office of Workers' Compensation Programs, s. 80-1021

• Decision Date: 11 February 1981
• Docket Number: Nos. 80-1021,80-1085,s. 80-1021
• Parties: Kenneth M. GARDNER, Sr., Petitioner, v. The DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondents, v. BATH IRON WORKS CORPORATION and Commercial Union Insurance Companies, Respondents. BATH IRON WORKS CORPORATION and Commercial Union Insurance Companies, Petitioners, v. The DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondents, v. Kenneth M. GARDNER, Sr., Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 1385

640 F.2d 1385

Kenneth M. GARDNER, Sr., Petitioner, v. The DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondents, v. BATH IRON WORKS CORPORATION and Commercial Union Insurance

Companies, Respondents.

BATH IRON WORKS CORPORATION and Commercial Union Insurance

Companies, Petitioners, v. The DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondents, v. Kenneth M. GARDNER, Sr., Respondents.

Nos. 80-1021, 80-1085.

United States Court of Appeals, First Circuit.

Argued June 3, 1980.

Decided Feb. 11, 1981.

Stephen Hessert, Gorham, Maine, with whom Norman & Hanson, Portland, Maine, was on brief, for Bath Iron Works Corp. and Commercial Union Ins. Companies.

Gilbert T. Renaut, 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 federal respondent.

Jonathan W. Reitman, Brunswick, Me., with whom McTeague, Higbee & Tierney, Brunswick, Me., were on brief, for claimant-petitioner.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and CAFFREY, District Judge. ^*

CAFFREY, District Judge.

These cross-appeals arise from a dispute between Kenneth Gardner and Bath Iron Works Corporation (hereinafter Bath) over Mr. Gardner's claim that he is entitled to disability compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (hereinafter the Act).

Mr. Gardner originally filed his claim for compensation under the Act in February 1975. He alleged that the conditions of his employment at Bath aggravated his preexisting bilateral venous insufficiency (difficulty with varicose veins) so as to render him disabled. That claim was contested by Bath and at an administrative hearing in December 1977 evidence was offered by both sides.

The evidence submitted to the Administrative Law Judge established that Mr. Gardner's difficulties with varicose veins had become manifest in the early 1940's while he was still on active duty in the armed forces. As a result of those difficulties he was hospitalized on two occasions during his tour of duty and received treatment in the form of injections. During that time period he was informed by a service physician that his vascular condition in his lower extremities would worsen with time.

In the time period between 1945 and 1960 his vascular condition continued to trouble him and in 1960 he was told to wear elastic stockings whenever he was on his feet.

In 1964 he started to work at Bath where his job involved continuous standing on concrete, steel or wood surfaces for forty hours a week. Although he continued to wear elastic stockings from 1964 to 1971, he was once again hospitalized in 1971 and surgery was performed to strip the veins in both of his legs. As a result of the surgery he was unable to work for four months. He returned to work in October 1971 and continued on the job despite difficulties with his legs until July 23, 1974. At that time he was advised by his physician to remain out of work until his condition improved. He did not return to work until September 9, 1974. Mr. Gardner maintains that he is entitled to be compensated for total disability between July 23, 1974 and September 9, 1974 and for a permanent partial disability thereafter.

After the hearing the Administrative Law Judge found that the circumstances of Mr. Gardner's employment aggravated his preexisting condition in such a way as to render him totally disabled from July 23 to September 9, 1974 and partially disabled thereafter. He ruled that the aggravation of a preexisting condition is compensable under the Act and awarded both permanent and temporary disability to Mr. Gardner.

Bath appealed the Administrative Law Judge's decision to the Benefits Review Board (hereinafter the Board) of the Department of Labor asking that it be set aside. Bath argued both that it contained errors of law and that the Administrative Law Judge had made findings of fact which were not supported by substantial evidence.

The Board ruled that there was sufficient evidence to support factual findings that Mr. Gardner's job situation aggravated his preexisting condition and that Mr. Gardner had been totally disabled thereby for the time period between July 23, 1974 and September 9, 1974. It affirmed the ruling that in Mr. Gardner's case the aggravation of a preexisting condition was compensable under the Act and upheld the award of temporary total disability. However the Board went on to rule that there was no evidence to support the Administrative Law Judge's finding that Mr. Gardner had a permanent partial disability after September 9, 1974 and reversed his ruling that Mr. Gardner was entitled to compensation for a permanent disability of 10%.

Mr. Gardner seeks review of the Board's decision insofar as it reversed the decision of the Administrative Law Judge as to his permanent partial disability. Bath and it's insurance carrier appeal from the Board's decision to the extent that it upheld the Administrative Law Judge. For the reasons set forth below we affirm the decision of the Board.

Temporary Total Disability

After an evidentiary hearing the Administrative Law Judge found that the conditions of Mr. Gardner's employment presented a zone of special danger to someone with his leg problems and that the injury for which he sought to recover compensation for the time period between July 23, 1974 to September 7, 1974 arose naturally out of and in the course of his employment within the meaning of the Act. He ruled that the aggravation of a preexisting condition may be compensable under the Act. ¹

On appeal to the Board, Bath contended that the findings of the Administrative Law Judge were not supported by substantial evidence and that his decision contained errors of law. While Bath conceded that an employee filing a claim under the Act is entitled to a presumption that his claim comes within the provision of the Act, ² it argued that it had rebutted that presumption by presenting substantial evidence that Mr. Gardner's condition resulted from the normal progression of his disease and was unrelated to the circumstances of his employment. It argued that after the presumption was rebutted there was no evidence upon which the Administrative Law Judge could find that Mr. Gardner's job situation had any impact on the progress of his pre-existing disease. At best, Bath contended, the evidence established that the conditions of Mr. Gardner's employment caused the symptoms incident to the disease process to manifest themselves temporarily and that such a flare-up of symptoms would not constitute an aggravation of the underlying preexisting condition.

Bath's final argument was that even if there was evidence upon which the Administrative Law Judge could base a finding that the conditions of Mr. Gardner's employment aggravated the underlying disease itself, such an aggravation would not constitute a compensable injury within the meaning of the Act since it is neither an "accidental injury" nor an "occupational disease." Bath based its argument on the provisions of 33 U.S.C. § 903(a) and § 902(2). 33 U.S.C. § 903(a) provides:

Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury.

Injury is defined in § 902(2) as:

(A)ccidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as arises naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.

Bath maintained that in order for an injury to be "accidental" it must have either an unexpected cause or an unexpected result and that either the cause or the result must be traceable to a definite time.

Bath further argued that an "occupational disease" is a disease which results from an increased risk to which the worker as distinguished from the general public has been subjected by reason of his employment. Bath contended that because the act of standing on one's feet is not peculiar to Mr. Gardner's employment situation, but is a condition common to all persons, his condition cannot be considered an "occupational disease."

The Board ruled that there was substantial evidence to support a finding that Mr. Gardner's preexisting venous insufficiency had been aggravated by his job situation. It further ruled that the injury in Mr. Gardner's case was "accidental" within the meaning of the Act. In so ruling the Board relied upon the decision of the Court of Appeals for the Fifth Circuit in Glens Falls Indemnity Co. v. Henderson, 212 F.2d 617 (1954).

Our review of the Board's decision is very limited in scope. Our consideration is limited to errors of law, including the issue of whether or not the Board properly applied the substantial evidence rule in reviewing the factual findings of the Administrative Law Judge. Air America v. Director, Office of Workers' Compensation Programs, 597 F.2d 773, 776-77 (1st Cir. 1979), Bath Iron Works Corp. v. White, 584 F.2d 569, 573-74 (1st Cir. 1978).

We rule that the Board properly applied the substantial evidence rule to the Administrative Law Judge's implied finding that Mr. Gardner's job situation aggravated his preexisting venous insufficiency. In so ruling we need not consider Bath's argument that it rebutted the presumption set forth in Section 920(a) because there was ample evidence presented at the hearing upon which the Administrative Law Judge could find that Mr. Gardner's preexisting condition was aggravated by the conditions of his employment.

Documentary exhibits authored by Mr. Gardner's attending physician, Dr. Wilfred A. Cloutier, tended to establish that Mr. Gardner's job situation had severely aggravated his condition and Dr. Raymond...