Jones v. Aluminum Co. of America

• Decision Date: 09 April 2001
• Docket Number: 00-696A,BRB 00-696
• Parties: ESTHER JONES (widow of CHARLIE JONES), Claimant-Petitioner Cross-Respondent v. ALUMINUM COMPANY OF AMERICA, Self-Insured Employer-Respondent Cross-Petitioner
• Court: Longshore Complaints Court of Appeals

ESTHER JONES (widow of CHARLIE JONES) Claimant-Petitioner Cross-Respondent v. ALUMINUM COMPANY OF AMERICA, Self-Insured Employer-Respondent Cross-Petitioner

BRB Nos. 00-696, 00-696A

April 9, 2001

Appeal of the Decision and Order on Remand – Denying Survivor's Benefits of Richard K. Malamphy Administrative Law Judge, United States Department of Labor.

John D. Gibbons (Gardner, Middlebrooks, Fleming, Gibbons &amp Kittrell, P.C.), Mobile, Alabama, for claimant.

Gregory C. Buffalow and Kirkland E. Reid (Miller, Hamilton, Snider & Odom, L.L.C.), Mobile, Alabama, for self-insured employer.

Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Claimant appeals and employer cross-appeals the Decision and Order on Remand – Denying Survivor's Benefits (1995-LHC-2055) of Administrative Law Judge Richard K Malamphy rendered 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 law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

This is the second time this case has come before the Board. Decedent worked for employer from July 1972 until his illness and death in March 1980 due to carcinoma of the left lung with metastasis to the brain. From July 1972 through November 12, 1978, decedent worked as a millwright welder, and thereafter he worked as a general mechanic. Cl. Exs. 13, 20. His duties as a millwright welder required him to perform cutting, welding, fusing and heating operations to install, maintain, repair and service machinery at employer's plant.^[1]Emp. Ex. 12. As a general mechanic, a category to which all the maintenance-type workers were changed in 1978, decedent was required to "construct, install, maintain, repair, and service all types of equipment, machinery, structures, ducting, and piping systems." Emp. Ex. 11. Claimant contends decedent was exposed to asbestos at employer's facility and this exposure contributed to his death due to cancer. Claimant and her five children filed claims for death benefits. Cl. Exs. 2, 7; 33 U.S.C. §909.

In his first decision, the administrative law judge addressed only whether decedent's work for employer satisfied the Act's status requirement, and he found that decedent's job as a millwright welder and general mechanic did not satisfy the Section 2(3), 33 U.S.C. §902(3), status requirement. Specifically, he found that decedent's work maintaining Conveyor B did not constitute "maritime employment" because it was not an integral part of loading or unloading a vessel. Decision and Order at 7. The administrative law judge stated that when the bauxite spilled from Conveyor A to Conveyor B it came into possession of the ultimate user for manufacturing purposes; therefore, it was no longer in the unloading process and service to Conveyor B did not affect the unloading process. Accordingly, he denied benefits.

Claimant appealed, and the Board reversed the administrative law judge's decision. The Board held that decedent's repair work on Conveyors B and C satisfied the status requirement because the conveyors moved shipped, not stored, materials, and were part of the unloading process. Moreover, the Board held that claimant's work on the conveyor belts was a regular, non-discretionary, albeit infrequent, part of his job. Thus, the Board remanded the case for the administrative law judge to address the remaining issues. Jones v. Aluminum Co. of America, 31 BRBS 130 (1997).^[2]

On remand, the administrative law judge concluded that in 1994, claimant became aware of the possibility that decedent's death was work-related after she received Dr. Lorino's report stating that decedent's death could be due to asbestos exposure. Thus, he found that claimant's claim, filed in 1994, was timely pursuant to Section 13 of the Act, 33 U.S.C. §913. Decision and Order on Remand at 8. The administrative law judge also found by inference from the testimony of Messrs. House, Simon and Howard, that decedent was exposed to asbestos while working for employer. The administrative law judge invoked the Section 20(a), 33 U.S.C. §920(a), presumption, but found that employer presented sufficient evidence to rebut the Section 20(a) presumption in the form of Dr. Bass's report, which stated that asbestos alone was an unlikely cause of decedent's cancer and that the asbestosis diagnosis was unsubstantiated. Decision and Order on Remand at 11. Accordingly, because he found Dr. Lorino's opinion bordered on "speculation and conjecture, " the administrative law judge found that claimant did not establish that an asbestos-related disease caused or contributed to decedent's cancer and death, based on the record as a whole. Therefore, the administrative law judge denied benefits. Decision and Order on Remand at 12.

Claimant appeals this decision. She contends the administrative law judge erred in finding that employer rebutted the Section 20(a) presumption. Employer responds, urging affirmance.^[3] BRB No. 00-696. Employer also filed a protective cross-appeal contending the administrative law judge erred in finding the claim timely filed and in determining that decedent sustained an injury on a maritime situs. Employer also asserts that the Board's prior decision on the status issue should be reconciled with the Supreme Court's decision in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), as that case requires a Jones Act seaman to have a "substantial" connection to a vessel and not just spend "at least some of his time" in the service of the vessel. Thus, it argues that decedent was not a maritime employee. Claimant responds to these arguments, urging the Board to reject them. BRB No. 00-696A.

Section 20(a)

Claimant contends the administrative law judge erred in finding the Section 20(a) presumption rebutted. She asserts that Dr. Bass's report is insufficient to sever the connection between decedent's work-related exposure to asbestos and his death. In determining whether a death is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked only after the claimant establishes a prima facie case, i.e., the claimant demonstrates that the decedent suffered a harm and that the accident occurred, or conditions existed, at work which could have caused that harm. See U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5^th Cir. 1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981). Once the claimant establishes a prima facie case, Section 20(a) applies to relate the death to the employment, and the employer can rebut this presumption by producing substantial evidence that the decedent's death was not related to the employment. Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22(CRT) (11^th Cir. 1990); O'Kelley v. Dep't of the Army/NAF, 34 BRBS 39 (2000); see also American Grain Trimmers v. Director, OWCP [Janich], 181 F.3d 810, 33 BRBS 71(CRT) (7^th Cir. 1999) (en banc), cert. denied, 120 S.Ct. 1239 (2000); Gooden, 135 F.3d 1066, 32 BRBS 59(CRT). If the employer rebuts the presumption, it no longer controls and the issue of causation must be resolved on the evidence of record as a whole, with the claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4^th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994). Under the aggravation rule, if a work-related injury contributes to, combines with or aggravates a pre-existing condition, the entire resultant condition is compensable. Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5^th Cir. 1986) (en banc). Thus, application of Section 20(a) presumes that the work injury aggravated or contributed to the pre-existing condition, and the employer must present evidence addressing aggravation or contribution in order to rebut it. See Hensley v. Washington Metropolitan Area Transit Authority, 655 F.2d 264, 13 BRBS 182 (D.C. Cir. 1981), cert. denied, 456 U.S. 904 (1982).

It is undisputed, and the administrative law judge found, that decedent died of lung cancer with metastasis to the brain, thereby establishing a harm. Konno v. Young Bros., Ltd., 28 BRBS 57 (1994). The administrative law judge also found, "by inference, " that decedent was exposed to asbestos while working for employer. Three former co-workers testified that they saw decedent either remove bits of insulation when necessary to do the job or they saw him in the area where insulators were removing insulation causing dust. The testimony reveals that the insulation contained asbestos. Jt. Ex. 1 at 12-13, 17, 20, 31; Jt. Ex. 2 at 18, 20-21, 33, 49-51; Tr. at 89, 91-93, 95, 100-101. Dr. Lorino, Board-certified in internal medicine and pulmonary medicine, reported in February 1994 that decedent's previous exposure to asbestos could have contributed to his lung cancer and death. Cl. Exs. 15, 23. He testified that every exposure to asbestos is significant and cannot be excluded. Cl. Ex. 24 at 13, 16. The administrative law judge thus found that the Section 20(a) presumption was invoked.

In order to rebut the Section 20(a) presumption, an employer must present substantial evidence which severs the causal nexus. American Grain Trimmers, 181 F.3d 810, 33 BRBS 71(CRT); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). The United States...