Parsons Corp. of California v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 15 May 1980
• Docket Number: No. 77-3626,77-3626
• Parties: PARSONS CORPORATION OF CALIFORNIA and Commercial Insurance Company of Newark, New Jersey, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Gerald W. Gunter, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 38

619 F.2d 38

PARSONS CORPORATION OF CALIFORNIA and Commercial Insurance Company of Newark, New Jersey, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Gerald W. Gunter Respondents.

No. 77-3626.

United States Court of Appeals Ninth Circuit.

May 15, 1980.

B. James Finnegan, Kiernan & Finnegan, San Francisco, Cal., for petitioners.

Laurie Streeter, Gilbert Renault, U.S. Dept. of Labor, Washington, D. C., on brief; James J. Simonelli, Stockton, Cal., for respondents.

Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.

Before BROWNING and KILKENNY, Circuit Judges, and EAST, District Judge. ^*

KILKENNY, Circuit Judge.

STATEMENT OF THE CASE

Petitioners seek reversal of an order of the Benefits Review Board (the "Board"), which affirmed a decision of an administrative law judge allowing the claim of Gerald W. Gunter filed pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901, et seq., (the "Act"), as extended by the Defense Base Act, 55 Stat. 622, 42 U.S.C. § 1651, et seq. This court has jurisdiction pursuant to 33 U.S.C. § 921(c) and 42 U.S.C. § 1651. ¹ We affirm.

BACKGROUND FACTS

Gerald W. Gunter was employed by the Parsons Corporation of California from June, 1973, to August, 1974, as a rotor blade technician at the Bien Hoa Air Force Base in Viet Nam. His work consisted of degreasing and repairing helicopter blades, and it brought him into contact with toxic chemicals such as naptha, methyl ethyl ketone, toluene, sulphuric acid and chromic acid.

In April of 1974, Gunter discovered, while reading, that the vision of his left eye was blurred. After a great deal of fruitless medical consultation and treatment, and a rapid worsening of his vision in both eyes, Gunter's condition was diagnosed as Leber's Optic Atrophy. The parties agree on this diagnosis and also on the conclusion that the disease left Gunter, for compensation purposes, totally and permanently blind. The dispute between the parties is over whether Gunter's disability was caused by his employment activities.

Leber's Optic Atrophy is a rare disease of unknown etiology which attacks the optic nerves. The disease is thought to be attributable in part to hereditary factors. However, there is no history of the disease in Gunter's family. Before the administrative law judge, the parties waged a battle of medical experts, who both testified as to the likelihood that Gunter's work environment precipitated the disease. The administrative law judge found for Gunter.

Petitioners appealed the ruling to the Benefits Review Board, arguing that the administrative law judge had applied the wrong standards for reviewing the evidence and, therefore, had not given proper weight to their evidence against causality. The Benefits Review Board affirmed the decision of the administrative law judge. Petitioners now appeal to this court.

ISSUE

The sole issue is whether petitioners presented substantial evidence to overcome the statutory presumption in favor of Gunter's claim.

DISCUSSION

Petitioners vigorously contend that the compensation award must be reversed for the reason that the administrative law judge applied an incorrect legal standard in assessing the evidence. In sum, they argue that they provided substantial evidence to rebut the statutory presumption ² that Gunter's claim falls within the provisions of the Act. Once such substantial evidence is produced, they argue, the statutory presumption "falls out" of the case and the burden is then on Gunter to persuade the trier of fact that his disability arose from conditions First, we note that petitioners are incorrect in their assertion that once substantial evidence is produced to rebut the statutory presumption, the burden of persuasion shifts to the claimant. Even after the substantial evidence is produced to rebut the statutory presumption, the employer still bears the ultimate burden of persuasion. This rule does not follow from the presumption in 33 U.S.C. § 920(a), although the presumption reflects the overall policy of the Act. The rule follows from the overall humanitarian statutory policy that all doubtful questions of fact be resolved in favor of the injured employee. Ryan-Walsh Stevedoring Co., Inc. v. Trainer, 601 F.2d 1306, 1316 (CA5 1979); Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794 (CA5 1978); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (CA1 1978).

in his work environment. Petitioners urge that the administrative law judge, while weighing all the evidence, improperly considered the burden of providing substantial evidence to overcome the statutory presumption as evidence itself. This, they conclude, was reversible error under the authority of Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935). ³

Moreover, we disagree with petitioners on their contention that they overcame the initial burden of providing substantial evidence to overcome the statutory presumption. Substantial evidence as used in the Act "is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Matter of District of Columbia Workmen's Comp. Act, 554 F.2d 1075, 1084 (D.C. Cir. 1976), cert. denied, sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81, quoting, Avignone Freres, Inc. v. Cardillo, 117 F.2d 385, 386 (D.C. Cir. 1940), quoting, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The statutory presumption in the Act may be overcome by evidence specific and comprehensive enough to sever the potential connection between the disability and the work environment. Matter of District of Columbia Workmen's Comp. Act, supra, at 1083.

Here, as the administrative law judge held, petitioners failed to come forward with sufficient evidence to overcome the statutory presumption. Leber's Optic Atrophy is not well understood by the medical profession, and consequently, petitioners' expert could not say that the chemicals to which Gunter was exposed did not trigger or accelerate the disease. In fact, petitioners produced no evidence of any cause of the impairment of Gunter's eyesight other than the suggestion that the blindness may have occurred spontaneously. In short, petitioners' evidence was not specific and comprehensive enough to sever the potential connection between Gunter's affliction and his work environment.

Even were we to disagree with the administrative law judge, and hold that petitioners produced sufficient evidence to overcome the statutory presumption favoring the claim, we would have no difficulty holding that petitioners failed to overcome the ultimate burden of persuasion. Gunter showed conclusively that: (1) he worked for over a year in an environment containing toxic chemicals known to have inflammatory effects on nerve fibers; (2) the temperature of his work environment and the amount of chemicals present were such that the chemicals could have had the effect of causing the disability; (3) he is older than the usual victim of Leber's Optic Atrophy; (4) although the disease is thought to be in part a result of hereditary factors, there is

no incidence of the disease in his family; (5) there is no evidence that he was not in good health, with normal eyesight,...