Stark v. Washington Star Co., 86-1615

• Citation: 266 U.S.App.D.C. 121,833 F.2d 1025
• Decision Date: 20 November 1987
• Docket Number: No. 86-1615,86-1615
• Parties: Willard STARK, Petitioner, v. WASHINGTON STAR CO., et al. and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1025

833 F.2d 1025

266 U.S.App.D.C. 121

Willard STARK, Petitioner, v. WASHINGTON STAR CO., et al. and Director, Office of Workers'

Compensation Programs, U.S. Department of Labor,

Respondents.

No. 86-1615.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 29, 1987.

Decided Nov. 20, 1987.

Michael V. Kowalski, Washington, D.C., was on the brief, for petitioner.

David P. Callet, with whom Paul M. Eskildsen, Washington, D.C., was on the brief, for respondent, The Washington Star Co.

Cornelius S. Donoghue, Jr., Atty., Dept. of Labor, Washington, D.C., entered an appearance, for appellee, Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before BUCKLEY and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr., ^* District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Willard B. Stark petitions for review of a decision of the Benefits Review Board (the "Board") affirming denial of his claim for permanent and total disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. Sec. 901 et seq. (1982) (the "Act"), as extended by the District of Columbia Workers' Compensation Act, 36 D.C.Code Sec. 501 et seq. (1973). ¹ Stark seeks benefits for respiratory ailments that he believes can be traced to his 22 years of work as a pressman at the now-defunct Washington Star.

The Administrative Law Judge ("ALJ") denied Stark's claim on several grounds. The one on which the Board affirmed was the conclusion that Stark had failed to file a claim within a year after the injury, as required by Sec. 13 of the Act, 33 U.S.C. Sec. 913. We affirm the Board's decision. Substantial evidence supports the ALJ's and the Board's two essential findings: that Stark had knowledge of his injury--and any link to his work--more than one year before he filed his claim in 1980; and that the Star lacked sufficient knowledge of that link to toll the statute under Sec. 30(f), 33 U.S.C. Sec. 930(f). Also, we find no error in the Board's failure to overturn the ALJ's ruling denying Stark's discovery request for air quality records; the request was made at the last minute and the materials sought were only marginally relevant.

I. TIMELINESS OF APPELLANT'S CLAIM

The Act requires the Board to treat the ALJ's findings of fact as conclusive if supported by substantial evidence in the record considered as a whole. 33 U.S.C. Sec. 921(b)(3). This court, rather than reviewing the Board's decision to determine whether it is supported by substantial evidence, cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), reviews it for errors of law and to verify that the Board adhered to the scope of review specified for its relation to the ALJ. Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir.1979); see also Stevenson v. Linens of the Week, 688 F.2d 93, 96-97 (D.C.Cir.1982). In order to decide whether the Board has properly adhered to its scope of review, however, we must conduct an independent review of the record to determine whether the ALJ's findings are supported by substantial evidence. McCabe, 593 F.2d at 237; Stevenson, 688 F.2d at 96-97. Thus, our review is said to involve very little difference to the Board when its decision differs from the ALJ's, see McCabe, 593 F.2d at 237 n. 1, a problem not presented here.

A. Stark's Knowledge of the Injury and its Relation to his Work

Section 13(a) of the Act provides that

[e]xcept as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore [sic] is filed within one year after the injury or death.... The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.

33 U.S.C. Sec. 913(a).

There is ample evidence to support the ALJ's finding that Stark was aware, at least four years before he filed his claim in 1980, that his pulmonary disease might be occupationally related. (1) He testified that he believed the air in the pressroom was dangerous and was making his respiratory problems worse (Tr. 88-89). (2) Beginning on the first or second day of his employment at the Star and continuing throughout his career there, he coughed up a black substance; he believed that the substance--or at least its color--was derived from ink in the pressroom atmosphere (Tr. 84, 106). (3) During his later years at the Star, he wore a breathing mask which he understood was designed to protect him from the air pollutants in the pressroom (Tr. 79-82). (4) He testified that his doctor recommended in 1975 that he retire because his working environment was not good for him (Tr. 92, Ex. 1 at 82-83, 90). (5) In February 1976 he did indeed retire for this reason (Tr. 88-90, Ex. 1 at 82-83). (6) He retained an attorney in 1976 to represent him in a workmen's compensation claim because he thought he had developed a lung condition as a result of working conditions in the pressroom (Tr. 97). (7) On learning in 1978 that some Star pressmen were going to file a class action against the Star concerning their lung condition, he opted out because he believed his claim was more serious than theirs (Tr. 98-99). (8) Finally, he testified he did not file a claim earlier because he had not yet accumulated large medical expenses (Tr. 97-98; Ex. 1 at 74-76).

The only item arguably pointing the other way is some ambiguous advice Stark received from his physician, Dr. Sappington. When Stark saw him in 1975 about his respiratory problems, Dr. Sappington told him that he could not establish a definitive link between his environment and his deteriorating condition. The doctor, however, did not deny the relation between Stark's job and his respiratory condition. Indeed, Stark testified that he understood Dr. Sappington to recommend that he stop working at the Star because the environment was bad for his condition (Ex. 1 at 82-83, 90).

Courts have charged employees with knowledge that their injury was work-related on much weaker evidence than that recounted above. See, e.g., Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 238-39 (3d Cir.1979) (court, rejecting ALJ's conclusion, finds that company's start of "extensive safety campaign" urging ear protection put employees on notice that their hearing loss was work-related); Sun Shipbuilding & Dry Dock Co. v. Bowman, 507 F.2d 146, 150 (3d Cir.1975) (employee knowledge inferred from his complaints about noise on the job, from employer's exhortation to workers to wear earplugs to protect their hearing, and from employee's own use of earplugs and complaints about noise).

There is clearly substantial evidence that Stark was aware, or by the exercise of reasonable diligence should have been aware, of his injury and its possible work-relation more than one year before he filed suit.

B. Employer's Knowledge of the Injury and its Link to the Workplace

Section 30(f) of the Act, 33 U.S.C. Sec. 930(f), tolls the limitations period of Sec. 13(a) if the employer fails to comply with Sec. 30(a)'s requirement that it file a report of the injury with the Secretary of Labor within 10 days of its occurrence. The tolling occurs, however, only if the employer "has been given notice" or "has knowledge" of the injury or death. "Knowledge" has been construed to encompass a kind of inquiry notice: knowledge of the injury itself and of "facts that would lead a reasonable man to conclude that compensation liability is possible, and that he therefore ought to investigate the matter further." Stevenson v. Linens of the Week, 688 F.2d 93, 100 (D.C.Cir.1982). The Star did not file the report. It successfully contended before the ALJ and the Board that it lacked the knowledge or notice necessary to trigger the filing obligation.

The Act establishes a presumption that "sufficient notice" of any claim has been given. Sec. 20(b) of the Act, 33 U.S.C. Sec. 920(b). Although respondent argues that this section is inapplicable to Sec. 30(a), the section states that the presumption applies to "any proceeding" under "this chapter." This issue need not be decided in this case, however; both the ALJ and the Board assumed that the presumption applied, and their decisions are sustainable on that premise.

Here there is no doubt that the Star was aware that Stark suffered respiratory ailments. His medical record at the Star contains references to such problems as bronchial asthma, laryngitis, acute bronchitis, and Dr. Sappington's letters to the Star, written in late 1975 and early 1976, list respiratory difficulties in some detail (Dep. Ex. 3, 4).

What is lacking, however, is any evidence that would put the Star on notice of any work connection. Stark himself admitted that he never informed any Star personnel--including those who worked at the Star's medical clinic--of his belief that he suffered from employment-related pulmonary disease (Tr. 83-84). His long history of respiratory ailments before coming to the Star--a variety of severe, chronic, lung-related illnesses, including bronchitis, whooping cough, pleurisy, frequent colds, and pneumonia (Tr. 69-76)--would naturally have suggested causes outside the workplace. So would his history of smoking two packs of cigarettes a day for 22 years (Tr. 73-76). There is also no evidence in the record that anyone ever witnessed Stark coughing up a black substance at work.

Perhaps most importantly, Dr. Sappington's letters to the Star, recommending that Stark be retired due to a totally disabling respiratory condition, make no mention of any connection between claimant's condition and his employment. Instead, the doctor stated that aggravating factors other than the workplace--such as "inclement weather conditions"--led him to the conclusion that Stark should...