Lewis v. Todd Pacific Shipyards Corp.
| Decision Date | 12 September 1996 |
| Docket Number | BRB 93-0661 |
| Parties | HUEY C. LEWIS Claimant-Respondent v. TODD PACIFIC SHIPYARDS CORPORATION and AETNA CASUALTY AND SURETY COMPANY Employer/Carrier-Petitioners DUWAMISH SHIPYARDS and INDUSTRIAL INDEMNITY INSURANCE COMPANY Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Awarding Benefits, Amended Decision and Order Awarding Benefits, Order Awarding Attorney Fees and Costs and Denying Motion To Set Aside Decision and Reopen Record, and Order Denying Reconsideration and Awarding Additional Attorneys Fees of Henry B. Lasky, Administrative Law Judge, United States Department of Labor.
Joel J. Delman (Levinson, Friedman, Vhugen, Duggan & Bland) Seattle, Washington, for claimant.
Thomas G. Hall (Hall & Keehn), Seattle, Washington, for Todd Pacific Shipyards Corporation and Aetna Casualty and Surety Company.
Robert L. Brousseau (Brousseau, Jankovich & Ormiston), Seattle Washington, for Duwamish Shipyards and Industrial Indemnity Insurance Company.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN, Administrative Appeals Judges.
DECISION and ORDER
Todd Pacific Shipyards Corporation (Todd) appeals the Order Awarding Benefits, Amended Decision and Order Awarding Benefits, Order Awarding Attorney Fees and Costs and Denying Motion To Set Aside Decision and Reopen Record, and Order Denying Reconsideration and Awarding Additional Attorneys Fees (91-LHC-1552) of Administrative Law Judge Henry B. Lasky 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 findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant, a general laborer, worked the last ten to fifteen years prior to his retirement in 1984 in the Seattle shipyards. He worked intermittently for Todd between 1974 and 1983, where he was exposed to asbestos, but his last maritime employment was with Duwamish Shipyards (Duwamish), where he worked from July 10, 1984, until July 19, 1984. Claimant, who suffered from numerous pre-existing physical maladies, including bronchopulmonary respiratory disease, heart disease, alcoholism, asthma and seizures, filed a claim under the Act on September 22, 1988, for asbestosis, and an amended claim on January 25, 1990, for occupational lung disease, against both employers. No benefits were voluntarily paid.
In his Decision and Order dated September 14, 1992, the administrative law judge found that the claim was timely filed under Sections 12 and 13 of the Act, 33 U.S.C. §§912, 913, and that Todd was liable as the responsible employer. He awarded benefits based on a 25 percent whole person impairment commencing January 27, 1992, pursuant to Section 8(c)(23), 33 U.S.C. §908(c)(23)(1988). In addition, the administrative law judge granted employer relief under Section 8(f) of the Act, 33 U.S.C. §908(f), and found that the compensation owed was subject to a credit for payments previously made and any other credit to which employer is entitled. In an amended Decision and Order dated September 25, 1992, the language pertaining to the credit was modified to clarify that the credit to which employer is entitled under the Act includes that recognized under Section 33(f), 33 U.S.C. §933(f), if applicable. In subsequent orders, the administrative law judge denied employer's September 29, 1992, Motion to Set Aside the Decision and Order and the amended Decision and Order and To Reopen the Record For Consideration of New Issues and Admission of New Evidence, in which Todd attempted to raise for the first time the Section 33(g)(1), 33 U.S.C. §933(g)(1)(1988), bar, in light of the United States Supreme Court's decision in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS 49 (CRT)(1992).
On appeal, Todd argues that the administrative law judge erred in concluding that claimant gave timely notice and filed a timely claim, in determining that it is liable as the responsible employer, and in refusing to reopen the record and entertain its arguments relating to Section 33(g)(1) in light of Cowart. Claimant responds, urging affirmance. Duwamish responds, urging that the administrative law judge's finding that Todd is the responsible employer be affirmed, but otherwise expressing agreement with Todd's contentions. Todd has filed two reply briefs. Claimant has submitted a statement of additional authorities relating to the applicability of the Section 33(g) bar, citing Glenn v. Todd Pacific Shipyards Corp., 27 BRBS 112 (1993).
Todd first argues that the administrative law judge erred in finding that the September 22, 1988, notice and claim were timely under Sections 12 and 13. Section 13(b)(2) provides that in the case of an occupational disease that does not immediately result in disability or death, the statute of limitations does not begin to run until the employee is aware or should have been aware of the relationship between his employment, the disease, and the disability. 33 U.S.C. §913(b)(2); Martin v. Kaiser Company, Inc., 24 BRBS 112 (1990). Section 12(a) of the Act requires a notice of injury, in a case involving an occupational disease, to be filed "within one year after the employee . . . becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the . . . disability." 33 U.S.C. §912(a) (1988). Thus, in an occupational disease case, the filing period does not begin to run under Sections 12 and 13 until claimant is actually disabled, or in the case of a voluntarily retired employee, until a permanent impairment exists. See Curit v. Bath Iron Works Corp., 22 BRBS 100 (1988); Lindsay v. Bethlehem Steel Corp., 18 BRBS 20 (1986); 20 C.F.R. §§702.212(b), 702.222. Section 20(b), 33 U.S.C. §920(b), provides claimant with a presumption, applicable to both Sections 12 and 13, placing the burden of proof on employer to produce substantial evidence that the claim was not timely filed or notice timely given. Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989).
We affirm the administrative law judge's finding that the September 22, 1988, notice and claim were timely. Employer argues that claimant was aware or should have been aware that he was disabled due to a work-related lung condition at various dates between 1983 and 1986. The administrative law judge, however, rationally found, based on the record before him, that although claimant had been advised by a physician in 1983 of the "possibility" that he had work-related lung disease, [1] he was not aware nor should he have been aware at any time prior to the fall of 1988, when Dr. Barnhart diagnosed work-related asbestosis or "asbestos-related pleural disease, " that he had an employment-related lung condition. In so concluding, the administrative law judge specifically noted that all of claimant's symptoms were consistent with his pre-existing non-work-related chronic diseases, that the medical opinions regarding the cause of claimant's respiratory problems prior to Dr. Barnhart's definitive diagnosis were inconclusive, and that at least one physician had informed claimant that his condition was not work-related. Finally, the administrative law judge determined that there was no indication that claimant had any permanent impairment, as is required to commence the time limitations of Sections 12 or 13 where the claim involves a voluntary retiree, until Dr. Barnhardt's rating on January 23, 1992. Cx. 15 at 285, 286. See Decision and Order at 12; Lombardi v. General Dynamics Corp., 22 BRBS 323 (1989). The administrative law judge's findings that claimant did not become aware that he had an occupational lung disease prior to Dr. Barnhardt's fall 1988 diagnosis and had no evidence of permanent impairment necessary to commence the Sections 12 and 13 statute of limitations until January 23, 1992, are rational, in accordance with applicable law, and supported by substantial evidence in the record. We therefore affirm the administrative law judge's determination that the September 28, 1988, notice and claim were timely under Sections 12 and 13. See generally Love v. Owens-Corning Fiberglass Co., 27 BRBS 148 (1993).
Todd next challenges the administrative law judge's determination that it is the responsible employer. The standard for determining the responsible employer was enunciated in Travelers Insurance Co. v. Cardillo 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913 (1955), which held that the last employer to expose the employee to injurious stimuli prior to his awareness of his occupational disease is liable for compensation. Employer bears the burden of demonstrating it is not the responsible employer, which it can do by establishing that claimant was exposed to injurious stimuli while performing work covered under the Act for a subsequent employer. General Ship Service v. Director, OWCP, 938 F.2d 960, 25 BRBS 22 (CRT) (9th Cir. 1991); Maes v. Barrett & Hilp, 27 BRBS 128, 131 (1993).
The administrative law judge found that Todd is liable as the responsible employer because Todd failed to establish that claimant received subsequent exposure while working for Duwamish in 1984. Todd argues that the testimony of Mr Meberg, which the administrative law judge relied upon in finding that claimant was not exposed to asbestos while working for Duwamish in 1984, does not provide substantial evidence to support this finding, because Mr. Meberg conceded that he did not know whether asbestos was present on the Silas Bent, the vessel claimant worked upon during his employment at...
To continue reading
Request your trial