Sprague v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 24 September 1982
• Docket Number: No. 81-1520,81-1520
• Citation: 688 F.2d 862
• Parties: 11 Fed. R. Evid. Serv. 1080 Mabel SPRAGUE (Widow of Frederick Sprague), Claimant-Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent and Bath Iron Works Corporation, Respondent and Commercial Union Insurance Company, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 862

688 F.2d 862

11 Fed. R. Evid. Serv. 1080

Mabel SPRAGUE (Widow of Frederick Sprague), Claimant-Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent and Bath Iron Works Corporation, Respondent and Commercial Union Insurance Company, Respondent.

No. 81-1520.

United States Court of Appeals First Circuit.

Argued June 2, 1982.

Decided Sept. 24, 1982.

Patrick N. McTeague, Brunswick, Maine, with whom McTeague, Higbee & Libner, Brunswick, Maine, was on brief, for claimant-petitioner.

Stephen Hessert, Portland, Maine, with whom Norman & Hanson, Portland, Maine, was on brief, for respondents.

Before CAMPBELL and BREYER, Circuit Judges, PETTINE, Chief District Judge. ^*

PETTINE, Chief District Judge.

Mabel Sprague, widow of Frederick Sprague, appeals the 2-1 decision of the Benefits Review Board (hereinafter "Board") affirming an administrative law judge's (hereinafter "ALJ") denial of disability and death benefits under the Longshoremen's and Harborworkers' Compensation Act, 33 U.S.C. §§ 908, ¹ 909 ² (hereinafter the "Act"). The Board sustained the ALJ's finding that the decedent's disability, which was not the cause of his death, was not work-related, and thus that the decedent's widow was not entitled to benefits under the Act. See id. § 902(2), (10). ³ This Court has jurisdiction over the claimant's appeal pursuant to 33 U.S.C. § 921(c). For the reasons that follow, this Court affirms the Board's decision.

Facts

Frederick Sprague worked for Bath Iron Works Corp. (hereinafter "BIW") in its machine shop from sometime in the early 1970's until August 9, 1975. ⁴ On July 17, 1975 Mr. Sprague accidently struck and bruised his left leg while operating a rigging machine at BIW. At the hearing before the ALJ, Mrs. Sprague testified that she observed her husband's leg on the day following this injury. She stated that she saw numerous cuts and bruises on the leg, none of which were deep. However, she did recall seeing "raw flesh."

Approximately six days after his injury, Mr. Sprague sought treatment from BIW's medical director, Dr. Dominici. Dr. Dominici is a general surgeon specializing in vascular work. Dr. Dominici testified that, upon examining Sprague's left leg, he observed no open wounds or cuts. Furthermore, x-rays taken of Sprague's entire left leg on August 14, 1975 did not reveal the onset of osteomyelitis, a bacterial bone infection which caused Sprague's disability in this case.

On August 18, 1975 Mr. Sprague was examined in a hospital by Dr. Evans, Sprague's family doctor and an internist. Dr. Evans discovered that Sprague's great toe on his right foot was ulcerated. Dr. Evans testified at his deposition that Sprague's diabetic condition was responsible for the ulcer on the right toe. A culture taken from this ulcer disclosed the presence of staphylococcus aureus (hereinafter "staph"), a type of bacteria. However, Evans' medical notes do not indicate that Sprague had open wounds or cuts on his left leg at this time.

Dr. Evans referred Sprague to Dr. Giustra, an orthopedic surgeon. On October 10, 1975, Dr. Giustra performed surgery on Sprague's right toe. Giustra diagnosed the toe condition as a soft-tissue infection not involving the bone. However, x-rays taken by Giustra in October revealed extensive osteomyelitis in the fibula of Sprague's left leg. On October 14, 1975 Giustra amputated Sprague's left leg below the knee because of the osteomyelitis. Some months later, Mr. Sprague died from an accidental gunshot wound.

The critical factual issue in this case is whether the osteomyelitis of Sprague's left leg resulted from work-related injuries to that leg, or from a non-work-related infection in the ulcerated toe on his right leg. ⁵ Osteomyelitis may occur in two ways: (1) through direct "innoculation" of a bone with bacteria that has entered the skin through an open wound located near the bone; and (2) through transmission of bacteria through the blood stream from one part of the body to a bone in another part of the body. The claimant contends that Sprague's osteomyelitis was caused by entry of staph bacteria through wounds on his left leg received at BIW in July 1975. BIW, however, contends that staph entered Sprague's body through the non-work-related ulcer on his right toe and traveled through his blood stream to his left leg.

The ALJ found that Sprague's osteomyelitis was blood-borne and not due to work-related injuries to his left leg. The Board affirmed 2-1, concluding that the ALJ's findings on causation were supported by substantial evidence. ⁶

Discussion

I. Substantiality of Evidence

33 U.S.C. § 920(a) provides that "it shall be presumed, in the absence of substantial evidence to the contrary ... (t)hat the claim comes within the provisions of this (Act)...." The precise coverage of this presumption is debatable. United States Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers' Comp. Programs, --- U.S. ----, 102 S.Ct. 1312, 1316, 71 L.Ed.2d 495 (1982). However, the presumption clearly applies to the causal "nexus between an employee's malady and his employment activities." Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 269 (D.C. Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1749, 72 L.Ed.2d 160 (U.S. Mar. 29, 1982) (quoting Swinton v. Kelley, 554 F.2d 1075, 1082 (D.C. Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976)). Thus, until the employer introduces substantial evidence to the contrary, § 920(a) presumes that an employee's disability is work-related.

However, once an employer bears his burden of going forward with substantial evidence of non-work-relatedness, the presumption "falls" out of the case. Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n. 6 (1st Cir. 1969). Accord Volpe v. Northeast Marine Terminals, 671 F.2d 697, 700 (2d Cir. 1982); Hensley v. Washington Metro. Area Transit Auth., 655 F.2d at 267; Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d 170, 173 (3d Cir. 1981). See Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935) (discussing presumption in 33 U.S.C. § 920(d)). The presumption does not constitute affirmative evidence. Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d at 173. See Del Vecchio v. Bowers, 296 U.S. at 286, 56 S.Ct. at 193.

Thus, resolution of Mrs. Sprague's claim for benefits under the Act requires a two-part analysis. Walker v. Universal Terminal Stevedoring Corp., 645 F.2d at 173. First, the Court must determine whether BIW came forward with substantial evidence to rebut the presumption of compensability under § 920(a). Second, if the presumption was successfully rebutted, the Court must then ask whether, on the record as a whole and without reference to the presumption, there is substantial evidence to support the ALJ's fact findings. Graziano v. General Dynamics Corp., 663 F.2d 340, 341 (1st Cir. 1981); Bath Iron Works Corp. v. White, 584 F.2d 569, 573 (1st Cir. 1978); Travelers Insurance Co. v. Belair, 412 F.2d at 301 n. 6. In other words, the Court must determine whether or not "the Board adhered to the substantial evidence standard in its review of (the) factual findings (made) by the ALJ." Graziano v. General Dynamics Corp., 663 F.2d at 341.

"Substantial evidence," for purposes of determining both whether the employer has rebutted the presumption of compensability and whether the ALJ's findings are supported on the record as a whole, is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parsons Corp. of California v. Director, Office of Workers' Comp. Programs, 619 F.2d 38, 41 (9th Cir. 1980) (evidence needed to rebut presumption); Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006 (5th Cir. 1978) (evidence needed to support ALJ's findings). See NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299-300, 59 S.Ct. 501, 504, 505, 83 L.Ed. 660 (1939) (action under national labor laws); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir. 1981) (social security disability benefits). Thus, "substantial evidence" means more than a scintilla of evidence, but less than a preponderance. Garvey Grain Co. v. Director, Office of Workers' Comp. Programs, 639 F.2d 366, 370 (7th Cir. 1981) (per curiam ); Diamond M. Drilling Co. v. Marshall, 577 F.2d at 1006. In reviewing for substantial evidence it is immaterial that the facts permit diverse inferences as long as those drawn by the ALJ are supported by evidence. Bath Iron Works Corp. v. White, 584 F.2d at 573. Similarly, it is irrelevant that the appellate court might reach a different conclusion than did the ALJ if it were reviewing the record de novo. Garvey Grain Co. v. Director, Office of Workers' Comp. Programs, 639 F.2d at 370.

The claimant in this case contends that the ALJ misapplied the presumption of compensability in 33 U.S.C. § 920(a). She argues that BIW failed sufficiently to rebut the presumption as to the work-relatedness of Sprague's disability. This Court must disagree. Not only did BIW introduce medical evidence from Drs. Dominici and Evans substantial enough to rebut the presumption of compensability, but there is substantial evidence in the record as a whole to support the ALJ's findings on causation. Thus, the Court will proceed directly to an examination of the entire record under the substantial evidence standard. ⁷

Dr. Giustra stated at his deposition that blood-borne osteomyelitis is rare in adults, and that the most common cause of adult osteomyelitis is direct innoculation. He testified that his medical records contained no notation of any open wounds on Sprague's left leg. However, he stated that any break in the skin on Sprague's left leg would have been sufficient for entry of osteomyelitis-causing staph bacteria, which are prevalent in the environment. In his opinion, it is unnecessary that a...