Hensley v. Washington Metropolitan Area Transit Authority

Decision Date17 March 1981
Docket NumberNo. 79-2552,79-2552
PartiesWilliam David HENSLEY, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Carolyn McKenney, Washington, D.C., with whom Joseph H. Koonz, Jr. and Roger C. Johnson, Washington, D.C., were on the brief for petitioner.

Richard W. Turner, Washington, D.C., with whom Daniel V. S. McEvily, Washington, D.C., was on the brief, for respondent.

Before MacKINNON and WALD, Circuit Judges, and JUNE L. GREEN *, United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting Opinion filed by Circuit Judge MacKINNON:

WALD, Circuit Judge:

Petitioner William Hensley appeals a decision and order of the Benefits Review Board of the United States Department of Labor which upheld a denial of his compensation claim brought under the Longshoremen's and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. § 901 et seq. 1 Hensley claims a temporary, total disability due to psoriasis which, he alleges, was aggravated by his employment as a bus driver for the Washington Metropolitan Area Transit Authority ("WMATA"). An Administrative Law Judge found that the aggravation of Hensley's pre-existing psoriatic condition was not work related. Appendix ("App.") at 16-19. The Benefits Review Board, in a 2-1 decision, affirmed the finding of the Administrative Law Judge, holding that there was substantial evidence to support his decision. App. at 1-15. Because the Benefits Review Board and the Administrative Law Judge erred in evaluating the evidence before them, and therefore failed properly to apply the statutory presumption favoring the claimant in a case where no substantial evidence was presented to contradict his claim, the decision is reversed.

I. THE FACTS

Petitioner Hensley, husband and father of seven children, has been a bus driver for the past 33 years, employed for that entire period by respondent WMATA or its predecessor, D.C. Transit Authority. Since 1968 Hensley has been plagued by general psoriasis. Until August, 1977, however, his condition was well controlled by medication, and he never missed a day of work due to his skin condition. App. at 103. Hensley testified before the Administrative Law Judge that during June and July of 1977, his bus route came under construction, making the ride extremely rough. 2 App. at 103-04. He further stated that the particular bus assigned to his route had very poor suspension, an uncomfortable driver's seat, and a steering ratio requiring far greater effort for turns than other buses used by WMATA; all of this was acknowledged to be true by the Board. Id. at 3 n.3; 104-06. Hensley testified that he was therefore exposed to severe bouncing at certain points of contact, especially his left hand, the small of his back, the underside of his thighs, and his feet. Id. at 106-08.

(D)uring the course of this time my skin began to dry out and peel and crack; and it was very hard for me in other words, it would hurt to hold the steering wheel. And I was trying to drive with a thumb and finger proposition (sic). But when I would grip the wheel and be out there on the job for a while, then it would crack open and bleed from the work, from doing the job, from holding the steering wheel; it would actually crack open and my hand would bleed.

Id. at 108.

On August 15, 1977, Hensley ceased work on the advice of his treating physician, Dr. Donald Mitchell. Dr. Mitchell found petitioner to be in severe pain and unable to use his hands and feet; his psoriasis was extensive with pustular lesions on the palms and the soles of his feet. App. at 30-3. Hensley was started on medication and he returned to work on August 23, 1977, despite advice from Dr. Mitchell that his condition would worsen if he began driving again. Id. at 49. But on September 5, 1977, Hensley was forced to stop work again due to the condition of his hands and feet, and he remained off work until November, 1978. Once Hensley stopped working, his condition stabilized. Id. at 111.

II. THE LAW

This court's role in reviewing determinations of the Benefits Review Board under the Longshoremen's Act is limited. We examine the record only to assure that the Board's orders rest on substantial evidence on the record as a whole, and that the Board's underlying standards for granting or denying compensation are in accord with the law. See Wheatley v. Adler, 407 F.2d 307, 310 (D.C.Cir.1968) (en banc). We have not hesitated, however, to reverse the Board's orders when they fail properly to apply the Act's presumption favoring claimants in disputed cases. See, e. g., Riley v. U. S. Industries/Federal Sheet Metal, Inc., 627 F.2d 455 (D.C.Cir.1980), cert. granted, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1981); Swinton v. Kelly, 554 F.2d 1075 (D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Wheatley v. Adler, supra.

The Act provides that compensation shall be payable when an employee covered under the Act suffers an "injury," defined as "accidental injury ... arising out of and in the course of employment ...." 33 U.S.C. § 902(2). Section 20 of the Act further provides that "(i)n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary (a) That the claim comes within the provisions of this chapter." 33 U.S.C. § 920 (emphasis supplied). The Section 20 presumption is but one indication of the "humanitarian nature" of the Act generally, O'Keefe v. Smith, Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965), and the "beneficent purposes" which underlie it. Friend v. Britton, 220 F.2d 820, 821 (D.C.Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955).

The presumption operates in favor of the claimant unless and until "substantial evidence" is presented by the respondent showing that the claimant's malady did not arise out of and in the course of his employment. At that point, the presumption "falls out of the case." Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935); Swinton v. Kelly, supra, 554 F.2d at 1082 n.35; Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404, 407 (4th Cir., 1979); St. Louis Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 551 F.2d 1119, 1124 (8th Cir., 1977); Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n.6 (1st Cir., 1969). This circuit has not decided whether, once the presumptive "bubble" bursts and falls out of the case, the ultimate burden of persuasion as to work-relatedness rests with the employer or employee. Cf. Parsons Corp. of California v. Director, Office of Workers' Compensation Programs, 619 F.2d 38, 41 (9th Cir., 1980) ("Even after the substantial evidence is produced to rebut the statutory presumption, the employer still bears the ultimate burden of persuasion."). But many courts, including our own, have decided that the beneficient purposes and humanitarian nature of the Act must be borne in mind when deciding whether the employer has presented "substantial" evidence; thus doubtful questions, including factual ones like work-relatedness, must be resolved in favor of claimants. Wheatley v. Adler, supra, 407 F.2d at 313-14 ("We have frequently pointed out that since the statute 'should be construed liberally' in favor of employees and their dependents, it is 'in their favor (that) doubts, including the factual, are to be resolved.' This approach has ... characterized our application of the substantial evidence test in these cases." (emphasis supplied)). See also Swinton v. Kelly, supra, 554 F.2d at 1084-85 (citing numerous cases); Ryan-Walsh Stevedoring Co., v. Trainer, 601 F.2d 1306, 1316 (5th Cir. 1979); Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794 (5th Cir., 1978); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir., 1978); Young & Co. v. Shea, 397 F.2d 185, 188, rehearing en banc denied, 404 F.2d 1059, 1061 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969) ("The policy of the Act that all doubtful questions are to be resolved in favor of the (claimant) is to be considered in determining whether there was substantial evidence before the Commissioner." 404 F.2d at 1061). Applying this approach, this court has often found it necessary to reverse orders which are based on evidence too insubstantial to override the statutory presumption; we "will not sustain the administrative findings merely because they are substantiated by some isolated evidence." Friend v. Britton, supra, 220 F.2d at 821. See, e. g., Swinton v. Kelly, supra, 554 F.2d at 1085 n.61 (collected cases decided in this circuit). On the contrary, in order to overcome the presumption, the employer's "substantial evidence" must be "specific and comprehensive enough to sever the potential connection" between the disability and the work environment. Id. at 1083 (emphasis supplied); Parsons Corp. of California v. Director, Office of Workers' Compensation Programs, supra, 619 F.2d at 41.

III. THE LAW APPLIED IN THIS CASE

It is uncontested that Hensley's severely aggravated psoriasis condition is an "injury," as that term is used in the Act; further, under the well recognized "aggravation rule" it is indisputable that "an aggravation of a pre-existing condition may constitute a compensable accidental injury under the Act (.)" Wheatley v. Adler, supra, 407 F.2d at 312. See Director, Office of Workers' Compensation Programs v. Brandt Airflex Corp., 645 F.2d 1053, at 1057 (D.C.Cir.1981); Friend v. Britton, supra, 220 F.2d at 823; Robinson v. Bradshaw, 206 F.2d 435, 437 (D.C.Cir.) cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953); Ridgley v. Ceres, Inc., 594 F.2d 1175, 1177 (8th Cir. 1979)...

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