Karen McAllister v. Lockheed Shipbuilding
| Decision Date | 19 August 2005 |
| Docket Number | BRB 04-0887 |
| Parties | KAREN McALLISTER (widow of JAMES McALLISTER), Claimant-Respondent v. LOCKHEED SHIPBUILDING and WAUSAU INSURANCE COMPANY, Employer/Carrier- Petitioners ALBINA ENGINE AND MACHINE and FIREMAN’S FUND INSURANCE COMPANY, Employer/Carrier- Respondents WILLAMETTE IRON AND STEEL COMPANY and SAIF CORPORATION, Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Awarding Benefits of Paul A. Mapes Administrative Law Judge, United States Department of Labor.
Peter W. Preston and Meagan A. Flynn (Preston, Bunnell & Stone, L.L.P.), Portland, Oregon, for claimant.
Russell A. Metz (Metz & Associates, P.S.), Seattle, Washington, for Lockheed Shipbuilding and Wausau Insurance Company.
Dennis R. VavRosky (VavRosky, MacColl & Olson, P.C.), Portland, Oregon, for Albina Engine & Machine and Fireman’s Fund Insurance Company.
Norman Cole and Jill Gragg (SAIF Corporation), Salem, Oregon, for Willamette Iron & Steel and SAIF Corporation.
Barry H. Joyner (Howard M. Radzely, Solicitor of Labor; Donald S. Shire, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Lockheed Shipbuilding (employer) appeals the Decision and Order Awarding Benefits (2003-LHC-2540) of Administrative Law Judge Paul A. Mapes rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 etseq. (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). The Board heard oral argument in this case on June 30, 2005, in Portland Oregon.
Decedent worked as a carpenter for three shipyards between 1956 and 1960. [1] In 1956, he worked for both Albina Engine and WISCO. In 1957, he began working for employer. In 1960, decedent worked for a steel company and then he became a self-employed roofer. He did not work in covered employment after 1960. In April 2002, Dr. Zbinden examined decedent, who had been experiencing shortness of breath. Dr. Zbinden suspected an asbestos-related disease. Cl. Exs. 10, 13. Decedent died on September 22, 2002, of left pleural mesothelioma. Cl. Exs. 11-12. Claimant, decedent’s widow, filed this claim for death benefits pursuant to Section 9 of the Act, 33 U.S.C. §909.
The parties stipulated that decedent’s mesothelioma was caused by exposure to asbestos and that if Dr. Brady, the Board-certified pathologist who performed the autopsy, was called to testify, he would state that any level of exposure to asbestos can potentially cause mesothelioma. The only disputed issues for the administrative law judge to address were the identity of the responsible employer and average weekly wage. Decision and Order at 3. The administrative law judge found that the only evidence sufficiently probative to establish exposure at employer’s shipyard and warrant invocation of the Section 20(a), 33 U.S.C. §920(a), presumption, was the deposition of Mr. Norgaard taken in an unrelated case that established the presence of asbestos at employer’s facility at the time decedent was employed there. The administrative law judge, therefore, invoked the “presumptions (1) that [decedent] was exposed to asbestos while working at the Puget Sound-Lockheed shipyard between 1957 and 1960, and (2) that there was a causal relationship between [decedent’s] mesothelioma and that employment.” Decision and Order at 6. Because employer did not present evidence to rebut the Section 20(a) presumption, the administrative law judge found it to be the responsible employer. [2] Id. He awarded claimant benefits pursuant to Section 9 of the Act. Employer appeals the decision, and claimant, Albina Engine, WISCO, and the Director, Office of Workers’ Compensation Programs (Director), respond, urging affirmance of the administrative law judge’s findings and award.
The sole issue raised by employer on appeal is a challenge to the finding that it is the responsible employer. In this regard, employer first argues that the administrative law judge erred in finding that claimant is entitled to invocation of the Section 20(a) presumption. We agree with employer that the basis for the administrative law judge’s finding that the Section 20(a) presumption is invoked cannot stand; however, as set forth below, we reject employer’s reasoning. Moreover, it is clear from the administrative law judge’s decision and the briefs in this case that all parties erroneously conflate the issues of responsible employer and causation. Therefore, we begin our decision with a discussion of the case precedent governing these issues.
In determining whether an injury or death is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked only after she establishes a prima facie case. To establish a prima facie case, the claimant must show that the decedent sustained a harm and that conditions existed or an accident occurred at work which could have caused the harm. Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1 st Cir. 2004); Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT) (9 th Cir. 1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981); see also U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982). The causation determination is made without reference to a particular covered employer. That is, the Section 20(a) presumption is not invoked against a particular employer; instead, the evidence of record must be considered to determine if the evidence is sufficient to invoke the Section 20(a) presumption on behalf of a claimant. Zeringue v. McDermott, Inc., 32 BRBS 275 (1998); [3] Lins v. Ingalls Shipbuilding, Inc., 26 BRBS 62 (1992). In this case, claimant must establish that decedent was exposed to asbestos during the period of his shipyard employment as a whole in order to invoke the Section 20(a) presumption that his condition was related to that employment.
If the claimant establishes her prima facie case, Section 20(a) applies to relate decedent’s mesothelioma to decedent’s exposure to asbestos. In a multiple employer case, any of the employers can rebut the presumption by producing substantial evidence that decedent’s death was not related to or hastened by his employment exposure. Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT) (9 th Cir. 1999); see also American Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7 th Cir. 1999) (en banc), cert. denied, 528 U.S. 1187 (2000); Fineman v. Ingalls Shipbuilding, Inc., 27 BRBS 104 (1993). If any of the employers rebuts the presumption, the presumption 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).
Once causation is found, and the death is found to be work-related, then the employers in the case must establish which of them is liable for benefits. Pursuant to Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2 d Cir.), cert. denied, 350 U.S. 913 (1955), the responsible employer in an occupational disease case is the last covered employer to expose the employee to injurious stimuli prior to the date he becomes aware that he is suffering from an occupational disease arising out of his employment. Port of Portland v. Director, OWCP, 932 F.2d 836, 24 BRBS 137(CRT) (9 th Cir. 1991); Todd Pacific Shipyards Corp. v. Director, OWCP [Picinich], 914 F.2d 1317, 24 BRBS 36(CRT) (9 th Cir. 1990); Lustig v. United States Department of Labor, 881 F.2d 593, 22 BRBS 159(CRT) (9 th Cir. 1989); Kelaita v. Director, OWCP, 799 F.2d 1308 (9 th Cir. 1986); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 16 BRBS 13(CRT) (9 th Cir. 1983), cert. denied, 466 U.S. 937 (1984); Zeringue, 32 BRBS 275. Claimant does not bear the burden of proving the responsible employer; rather, each employer bears the burden of establishing it is not the responsible employer. General Ship Service v. Director, OWCP, 938 F.2d 960, 25 BRBS 22(CRT) (9 th Cir. 1991); Susoeff v. San Francisco Stevedoring Co., 19 BRBS 149 (1986); [4] see also Cooper/T. Smith Stevedoring Co., Inc. v. Liuzza, 293 F.3d 741, 36 BRBS 18(CRT) (5 th Cir. 2002); Ramey, 134 F.3d 954, 31 BRBS 206(CRT); Avondale Industries, Inc. v. Director, OWCP [Cuevas], 977 F.2d 186, 26 BRBS 111(CRT) (5 th Cir. 1992). In order to establish that it is not the responsible employer, an employer must demonstrate either that the employee was not exposed to injurious stimuli in sufficient quantities at its facility to have the potential to cause his disease or that the employee was exposed to injurious stimuli while working for a subsequent covered employer. Liuzza, 293 F.3d 741, 36 BRBS 18(CRT); Picinich, 914 F.2d 1317, 24 BRBS 36(CRT); Lustig, 881 F.2d 593, 22 BRBS 159(CRT); Black, 717 F.2d 1280, 16 BRBS 13(CRT).
In the instant case, the administrative law judge erred by applying the Section 20(a) presumption against a particular employer. Decision and Order at 5-6; see Zeringue, 32 BRBS 275. Specifically, the administrative law judge invoked the presumption against employer solely on the basis of Mr....
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