New Orleans Stevedores v. Ibos

• Decision Date: 16 January 2003
• Docket Number: No. 01-60480.,01-60480.
• Citation: 317 F.3d 480
• Parties: NEW ORLEANS STEVEDORES; Signal Mutual Administration, Ltd., Petitioners-Cross-Respondents, v. Peggy IBOS, Surviving spouse of Bertrand Ibos, Jr.; Respondent-Cross-Petitioner, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 480

317 F.3d 480

NEW ORLEANS STEVEDORES; Signal Mutual Administration, Ltd., Petitioners-Cross-Respondents, v. Peggy IBOS, Surviving spouse of Bertrand Ibos, Jr.; Respondent-Cross-Petitioner, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondent.

No. 01-60480.

United States Court of Appeals, Fifth Circuit.

January 16, 2003.

Mark E. Solomons (argued), Laura Metcoff Klaus, Greenberg Traurig, Washington, DC, for Petitioners-Cross-Respondents.

Lloyd N. Frischhertz (argued), Andrew William Horstmyer, Frischhertz & Associates, New Orleans, LA, for Ibos.

Joshua T. Gillelan, II (argued), Carol A. De Deo, U.S. Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd Washington, DC, Michael O. Brewer, U.S. Dept. of Labor, Employment Standards Administration, New Orleans, LA, for Respondent.

Carl Larsen Taylor, Wilcox Carroll & Froelich, Washington, DC, for National Ass'n of Waterfront Employers, Amicus Curiae.

Petition for Review of an Order of the Benefits Review Board.

Before KING, Chief Judge, and JONES and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case is on review of a judgment of the United States Department of Labor's Benefits Review Board (the "BRB"), affirming a decision of an administrative law judge (the "ALJ"). The ALJ held that New Orleans Stevedores ("NOS") is liable for compensation owed to Bertrand and Peggy Ibos (respectively, "Decedent" and "Claimant") under the Longshore and Harbor Workers' Compensation Act (the "LHWCA"),¹ but is entitled to a credit against its total liability for the net amounts Claimant received by way of settlements with two of Decedent's earlier longshore employers and their insurers.

Decedent worked for various steamship and stevedoring companies for a period spanning nearly fifty years. During the Decedent's last three periods of employment, he worked for Valor Stevedoring Company ("Valor"), Anchor Stevedoring Company ("Anchor"), and, most recently, NOS. When Decedent experienced respiratory problems which were subsequently diagnosed as symptoms of mesothelioma caused by occupational exposure to asbestos, he stopped working and filed a claim for disability benefits under the LHWCA. Decedent died due to metastatic mesothelioma and Claimant, his widow, continued his disability claim and her own claim for survivor's benefits, naming Valor, Anchor, and NOS as the potentially responsible employers. Following referral of the claim to the Office of Administrative Law Judges, Claimant entered into approved settlement agreements with Valor and Anchor pursuant to § 8(I), 33 U.S.C. § 908(I), of the LHWCA. Accordingly, Valor and Anchor, and their respective carriers, were dismissed from the present claim. Claimant did not enter into settlement agreements with NOS.

In the case against NOS, the ALJ held that, because Decedent's last period of injurious exposure to asbestos occurred during his employment with NOS, NOS is the responsible employer under the LHWCA. The ALJ then awarded Claimant temporary total disability benefits for Decedent's period of disability, to be followed by death benefits. Additionally, the ALJ held that NOS is entitled to a credit for the net settlement proceeds paid to Claimant by Valor and Anchor for the same occupational injury that is the subject of this claim.

On appeal to the BRB, NOS and its insurance carrier, Signal Mutual Administration, Ltd. ("Signal"), challenged the ALJ's determination that NOS is the responsible employer. In a cross-appeal, Claimant challenged the ALJ's award of a credit to NOS for the settlement monies paid by Valor and Anchor. The BRB affirmed both the ALJ's determination that NOS is the responsible employer and the ALJ's decision to award a credit to NOS.

NOS and Signal now appeal the BRB's judgment affirming the ALJ's determination that NOS is the responsible employer. Claimant and the Director of the Office of Workers' Compensation Programs, United States Department of Labor (the "Director"), urge affirmance of the BRB's responsible employer determination. On cross-appeal, Claimant challenges the BRB's judgment affirming the ALJ's decision to grant NOS a credit for the settlements Claimant received from Valor and Anchor. NOS and Signal respond that the credit was properly awarded.

We must review two aspects of the BRB's judgment: (1) whether the BRB misapplied the "last exposure rule," in light of the medical-opinion testimony of record regarding the "latency period" of mesothelioma; and (2) whether, in affirming the ALJ's decision to award NOS a credit, the BRB misapplied the general credit doctrine adopted in Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986) (en banc).

The BRB's final order is subject to review in the United States Court of Appeals for the circuit in which the injury occurred. 33 U.S.C. § 921(c). We examine the BRB's decisions for errors of law to determine whether the BRB adhered to its scope of review. Presley v. Tinsley Maint. Serv., 529 F.2d 433, 436 (5th Cir. 1976). Our review of the BRB's factual findings is limited to determining whether those findings are supported by substantial evidence on the record as a whole. Tampa Ship Repair & Dry Dock Co. v. Dir., OWCP, 535 F.2d 936, 938 (5th Cir.1976). With respect to issues of law, our review of the BRB's rulings is de novo. Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir.2001).

The BRB's views are not entitled to deference because it is not a policy-making agency. Cooper, 274 F.3d at 177. We do, however, give deference to the Director's interpretations of the LHWCA. Id. The exact amount of deference that we owe to any given interpretation by the Director "`will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. (quoting United States v. Mead Corp., 533 U.S. 218, 219, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944))).

I

NOS and Signal argue that the BRB misapplied the Cardillo "last exposure rule" because it failed to conduct a proper rebuttal inquiry into the question of whether Decedent's exposure to asbestos while employed with NOS actually caused or contributed to Decedent's mesothelioma.² The premise of NOS's and Signal's argument is that § 2(2) of the LHWCA requires that, for an employer to be held liable, the employee's exposure to an injurious condition while working for that particular employer must either cause or contribute to that employee's compensable condition in some demonstrable way. From this premise, NOS and Signal contend that the BRB erred when, in its rebuttal inquiry, it rejected the medical-opinion testimony of record concerning the "latency period" of mesothelioma which, according to NOS and Signal, suggests that there could not have been a true causal link between Decedent's exposure to asbestos while employed with NOS and the development of Decedent's mesothelioma. Specifically, NOS and Signal argue that they have met their burden of showing that a true causal link does not exist in this case, because the medical evidence of record demonstrated that the latency period for the development of mesothelioma is long enough to suggest that Decedent's development of mesothelioma began years before Decedent's last period of employment with NOS, and that any additional exposure to asbestos during that period had no impact on the course of his disease.

First, we disagree with NOS's and Signal's premise that, for purposes of liability, § 2(2) of the LHWCA requires a true causal link between Decedent's exposure while working for NOS and the development of Decedent's mesothelioma. Under § 2(2), there are two prongs to the statutory definition of a compensable "injury": "[1] accidental injury arising out of and in the course of employment, and [2] such occupational disease or infection [a] as arises naturally out of such employment or [b] as naturally or unavoidably results from such accidental injury[.]" LHWCA § 2 (2), 33 U.S.C. § 902(2) (emphasis added). The Director interprets the "arises naturally out of" language of § 2(2) to require only that the conditions of the employment be of a kind that produces the occupational disease. This interpretation is consistent with congressional intent, as it was first interpreted by the Second Circuit in Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.1955). In Cardillo, the Second Circuit found, as a matter of legislative interpretation, that Congress intended full liability to rest on the last exposing employer, regardless of the absence of actual causal contribution by the final exposure. Cardillo, 225 F.2d at 145.

We agree with Cardillo's legislative interpretation. In the congressional hearings preceding the LHWCA's passage, an employer representative suggested that the LHWCA should include a provision limiting an employee's total recovery against a particular employer to the same ratio as the extent of the harm done during the period worked for that employer bore to the total disability. To Provide Compensation for Employees Injured and Dependents of Employees Killed in Certain Maritime Employments: Hearing before the House Judiciary Committee on H.R. 9498, 69th Cong., 1st Sess. 72 (1926).³ After discussion, those involved in the hearing accepted the employer representative's complaint that, without such a provision capping liability, a "last employer" would be liable for the full amount of compensation, even if the duration of the injured employer's employment was so brief that the injury would probably not be medically attributable at all to that "last employment." Id. at 74-75; Cardillo, 225 F.2d at 145. The suggested provision was not, however, incorporated into the LHWCA. We infer that Congress declined to adopt the...