Maes v. Barrett & Hilp
| Decision Date | 12 August 1993 |
| Docket Number | BRB 90-881,90-881A |
| Court | Longshore Complaints Court of Appeals |
| Parties | SENAIDA MAES (Widow of JOSEPH MAES), Claimant-Respondent Cross-Petitioner v. BARRETT & HILP and LUMBERMAN'S MUTUAL CASUALTY COMPANY, Employer/Carrier-Petitioner Cross-Respondent |
Appeals of the Decision and Order Awarding Benefits of Alexander Karst, Administrative Law Judge, United States Department of Labor.
Victoria Edises (Kazan, McClain, Edises & Simon) Oakland, California, for claimant.
Herman Ng (Hanna, Brophy, MacLean, McAleer & Jensen), San Francisco, California, for carrier.
Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER
Employer/carrier appeals and claimant cross-appeals the Decision and Order Awarding Benefits (89-LHC-900) of Administrative Law Judge Alexander Karst 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 if they 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).
Decedent worked from 1939 until his retirement in 1969 for the Plant Rubber and Asbestos Works and its successor, the Fibreboard Corporation, both non-maritime employers, where he was exposed to asbestos. During a two-week period in 1943 decedent worked for Barrett & Hilp (employer), [1] a maritime employer. The record reflects that in June 1942, employer contracted with the United States Maritime Commission to construct a shipyard on federal land in South San Francisco and to build 26 concrete barges at the facility. According to the record, on August 11, 1943, employer subcontracted with Asbestos Company of California to supply insulation containing asbestos for installation on the barges. Decedent died on December 22, 1986, from pulmonary asbestosis. Cl. Ex. 7 at 73.
Claimant, decedent's widow, filed a claim under the Act for death benefits on June 28, 1988, as well as inter vivos disability benefits, naming Lumberman's Mutual Casualty Company (carrier or Lumberman's) as the responsible carrier.[2]
In his Decision and Order, the administrative law judge awarded claimant survivor's benefits under Section 9, 33 U.S.C. §909. He denied the claim for disability benefits for disability prior to decedent's death, finding that claim time-barred. The administrative law judge held carrier liable for the benefits awarded. Finally, he denied claimant's request for a Section 14(e), 33 U.S.C. §914(e), penalty.
On appeal, carrier challenges the finding that it is the carrier responsible for this claim, contending there is no evidence that it was the carrier on the risk during the period of decedent's employment with employer in 1943. Carrier also argues that claimant failed to establish that decedent was covered by the Act. Claimant responds, urging that Lumberman's arguments be rejected.
On cross-appeal, claimant argues that the administrative law judge erred in finding the inter vivos disability claim time-barred and in failing to assess a Section 14(e) penalty. Lumberman's responds, urging that the administrative law judge's finding that the disability claim was time-barred and his denial of a Section 14(e) penalty be affirmed. Claimant replies, reiterating her arguments on cross-appeal.
Lumberman's contends that there is no evidence that it was the carrier for Barrett & Hilp during the last quarter of 1943 for purposes of this Act. We disagree. The standard for determining the responsible employer or carrier was enunciated in Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913 (1955). Pursuant to Cardillo, the last employer or carrier to expose the employee to injurious stimuli prior to his awareness of his occupational disease is liable for compensation. Accord Argonaut Insurance Co. v. Patterson, 846 F.2d 715, 21 BRBS 51 (CRT)(11th Cir. 1988). Moreover, since this rule involves the assessment of liability under the Act, the responsible carrier is the carrier insuring the last employer covered under the Act to expose the employee to injurious stimuli prior to his awareness. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 16 BRBS 13 (CRT)(9th Cir. 1983), cert. denied, 466 U.S. 937 (1984). In Susoeff v. The San Francisco Stevedoring Co., 19 BRBS 149 (1986), the Board addressed employer's burden of proof regarding causation and the determination of the responsible employer. The Board held that once an employee has established that he was exposed to injurious stimuli while engaged in covered employment, employer may escape liability by showing that the employee's injury is not work-related or by establishing that he was exposed to injurious stimuli while performing work covered under the Act for a subsequent employer. Id. at 151. Accord Avondale Industries, Inc. v. Director, OWCP, 977 F.2d 186, 26 BRBS 111 (CRT) (5th Cir. 1992); General Ship Service v. Director, OWCP, 938 F.2d 960, 25 BRBS 22 (CRT)(9th Cir. 1991). See also Lins v. Ingalls Shipbuilding, Inc., 26 BRBS 62 (1992).
In finding that Lumberman's was the responsible carrier in this case, the administrative law judge noted that the contract under which Barrett & Hilp built barges for the United States Maritime Commission during 1943 contained a clause requiring employer to carry workers' compensation insurance. Cl. Ex. 2 at 46, 48. Further, a Maritime Commission document listing the workers' compensation carriers for shipyards operating under Maritime Commission contracts reflects that as of July 1943 Lumberman's was the carrier for Barrett & Hilp. Cl. Ex. 4 at 61-63. The administrative law judge further relied on an undated list of workers' compensation carriers from a United States Maritime Commission file, allegedly containing correspondence dating from 1944, which also indicated that Lumberman's was employer's carrier. The administrative law judge concluded that this evidence led to the inference that Lumberman's was on the risk during the relevant period. Cl. Ex. 3 at 59; Cl. Ex. 19 at 101. The administrative law judge rejected Lumberman's argument, which it again raises on appeal, that Dolowich v. West Side Iron Works, 17 BRBS 197 (1985), wherein the Board held that the burden is on the carrier to show that it is not the responsible carrier, is not applicable here. In so doing, the administrative law judge reasoned that inasmuch as the carrier appeared to concede that it insured Barrett & Hilp at some point, and substantial credible evidence of record exists that it was the carrier on the risk in the last quarter of 1943, any evidence to the contrary would be in Lumberman's control. As it had not presented such evidence, the administrative law judge concluded that Lumberman's was liable as the responsible carrier.
Lumberman's argues that Dolowich is distinguishable from the instant case on the basis that in Dolowich it was undisputed that the named carrier had provided workers' compensation coverage for the periods in question and the issue was whether the insurance contract included coverage under the Longshore Act, while the issue presented here is whether Lumberman's was on the risk at all during the relevant time period. Lumberman's asserts that requiring it to disprove coverage is unreasonable, since due to the distance in time of the underlying events, it is in no better position than claimant to support its position.
We reject this argument. In General Ship, 938 F.2d at 960, 25 BRBS at 22 (CRT), the United States Court of Appeals for the Ninth Circuit, wherein the instant case arises, addressed the issue of the responsible carrier in a case with scant record evidence due to the passage of time of the underlying events, similar to that in this case. The court agreed with the Board's decision in Suseoff, holding that employer bears the burden of proving it is not the liable employer, and stated:
We must uphold the administrative law judge's finding if it was supported by substantial evidence. McDonald, 897 F.2d at 1512. We hold that it was. The paper trail in this case, as in many asbestos cases, is incomplete due to the passage of time. Administrative law judges must draw reasonable inferences based on the evidence before them. The administrative law judge here drew the reasonable inference that coverage was continuous. Because Liberty Mutual, the only other party who could possibly produce records pertaining to the coverage issue, failed to present any evidence to the contrary, we hold that the administrative law judge's finding was supported by substantial evidence.
938 F.2d at 962, 25 BRBS at 25-26 (CRT). The court also cited Dolowich with approval. Id. at n.2. Because the administrative law judge in analyzing the responsible carrier issue properly placed the burden of proof on Lumberman's, consistent with General Ship, and rationally inferred from the evidence before him that Lumberman's was the carrier on the risk during the relevant period, his finding that Lumberman's is liable as the responsible carrier is affirmed.[3]
Citing SAIF Corporation/Oregon Ship v. Johnson, 908 F.2d 1434, 23 BRBS 113 (CRT)(9th Cir. 1990), Lumberman's next contends that the administrative law judge erred in evaluating jurisdiction under the law in effect in 1943, the time of decedent's injurious exposure, rather than under the 1972 Act, the law in effect at the time decedent's injury became manifest. Citing Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983)(Perini), claimant responds that even if decedent's injury became manifest after the status...
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