Walker v. Universal Terminal & Stevedoring Corp.

• Decision Date: 10 April 1981
• Docket Number: No. 80-2142,80-2142
• Citation: 645 F.2d 170
• Parties: Methel WALKER, Claimant, Respondent, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Employer, and Midland Insurance Company, Carrier, Petitioners.
• Court: U.S. Court of Appeals — Third Circuit

Page 170

645 F.2d 170

Methel WALKER, Claimant, Respondent, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Employer and Midland Insurance Company, Carrier, Petitioners.

No. 80-2142.

United States Court of Appeals Third Circuit.

Argued Jan. 12, 1981.

Decided April 10, 1981.

Leonard J. Linden (argued), Linden & Gallagher, New York City, for petitioners.

John R. Schwartz (argued), Miller, Hochman, Meyerson & Schaeffer, Jersey City, N. J., for claimant-respondent.

Before SEITZ, Chief Judge, ROSENN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Jessie Walker, a longshoreman, died while at work unloading a vessel on August 21, 1971. His widow, Methel Walker, ¹ filed a workmen's compensation claim under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976 & Supp. III 1979). An administrative law judge (ALJ) denied the claim, finding that Walker's death was caused solely by intoxication. The Benefits Review Board (BRB) reversed on the ground that the ALJ's decision was not supported by substantial evidence. Following a remand to the ALJ for computation of the amount of compensation and a subsequent affirmance by the BRB, the decedent's employer, Universal Terminal & Stevedoring Corp., and its insurance carrier, Midland Insurance Co., petitioned this court for review. We grant the petition and, concluding that the decision of the ALJ was amply supported by substantial evidence, reverse the decision of the BRB.

I.

On August 20, 1971, Walker, a longshoreman employed by Universal Terminal & Stevedoring Corp., was assigned to work on the vessel American Legend at Port Newark, New Jersey. He began work at approximately 1 p. m. on the deck of the ship with a fellow longshoreman, Lindo Pugh. Their sole task was attaching hooks from the large overhead crane to the top of hatch covers so that the hatch covers could be removed making the cargo below accessible. In carrying out their assignment that afternoon, Walker and Pugh climbed on top of a hatch, an elevation of five to six feet above the deck. They reached the top by climbing short ladders along the sides of the hatch. After they had assisted in attaching the cable from the crane to the hatch cover, each man prepared to descend from the cover. Pugh grabbed an adjacent cable and slid the short distance down it to the deck. Walker was observed crouching as if to jump to the deck. No one saw him actually alight from the hatch cover. Several minutes later, Pugh went looking for him and found Walker lying unconscious on the deck beside the hatch. Nearby, permanently attached to the deck, was a 21/2 or 3 inch pipe. This pipe ran parallel to the deck a few inches above the surface. Pugh saw no indication, however, that Walker had struck the pipe or the deck.

Pugh obtained assistance and with the aid of the crane, operated throughout that afternoon by Edward Muse, Walker was removed from the ship on a stretcher. He was pronounced dead on arrival at the hospital. The specific physiological cause of death is not at issue: Walker, in a semi-conscious state, had vomited, aspirated the vomit, and asphyxiated. In dispute is what triggered these events. The claimant argues that either falling or jumping from the hatch cover, Walker struck his head and was rendered partially unconscious. The employer and insurance carrier contend that Walker became partially unconscious solely as a result of the intoxication. As is often the case, each side presented medical testimony in support of its position at the hearing on the workmen's compensation claim.

Relying on the evidence produced at the administrative hearing, the ALJ concluded that Walker's death was caused solely by his intoxication. To reach this conclusion he specifically credited the testimony of Dr. Milton Halpern and rejected, on one point, the testimony of Dr. Thomas Santoro. On appeal of the claimant, the Benefits Review Board of the United States Department of Labor reversed, holding that the ALJ's decision was not supported by substantial evidence.

II.

This court previously has considered the initial and review procedures appropriate in cases involving claims for compensation under the LHWCA:

A disputed claim for compensation is first heard before an ALJ. The ALJ makes findings of fact and determines the validity of the claim. 33 U.S.C. § 919. The losing party may appeal to the BRB which reviews the ALJ's decision but it does not make any independent findings of fact. 33 U.S.C. § 921. The statute provides for the BRB's scope of review: "The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3).

A dissatisfied litigant may then file a petition for review of the BRB decision in the United States court of appeals. 33 U.S.C. § 921(c). The statute does not set forth the standard of review to be applied in the court of appeals. Case law has established, however, that this court is to review the decisions of the Benefits Review Board for errors of law, and to make certain that the BRB adhered to its scope of review provision. Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73, 76 n.12 (3d Cir. 1978); Director, OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 454 (3d Cir. 1978); Presley v. Tinsley Maintenance Service, 529 F.2d 433 (5th Cir. 1976).

It is true that this court does not determine if the Board's decision is supported by substantial evidence; we review the Board's determination of whether the ALJ's decision is supported by substantial evidence. In order to determine whether the Board has properly adhered to its scope of review, the court of appeals must make an independent review of the record and decide whether the ALJ's findings are supported by substantial evidence.

Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979) (footnote omitted). ² This approach reviewing the Board's determination of whether the ALJ's decision was supported by substantial evidence, rather than determining whether the BRB's decision was supported by substantial evidence is followed in other circuits. Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327, 1329 & nn.1 & 2 (9th Cir. 1980); Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119 n.1 (5th Cir. 1980); Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 606 F.2d 1324, 1326 (D.C.Cir.1979), rev'd on other grounds, --- U.S. ----, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980); Bath Iron Works Corp. v. Galen, 605 F.2d 583, 585 (1st Cir. 1979). ³ We see no reason to reconsider the standard of review in this case.

III.

The Act provides that "(n)o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another." 33 U.S.C. § 903(b) (1976). The statute also recognizes a presumption against a finding of intoxication. "In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary ... (c) That the injury was not occasioned solely by the intoxication of the injured employee." Id. § 920. This presumption has weight, however, only in the absence of substantial evidence negating the presumption. Once evidence has been presented sufficient to justify a finding contrary to the presumption, "the presumption falls out of the case." Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935). The presumption does not have the quality of affirmative evidence. Id. at 285, 56 S.Ct. at 192. Once rebutted the presumption has no effect on the case. St. Louis Shipbuilding Co. v. Director of the Office of Workers' Compensation Programs, 551 F.2d 1119, 1124 (8th Cir. 1977); John W. McGrath Corp. v. Hughes, 264 F.2d 314, 317 (2d Cir.), cert. denied, 360 U.S. 931, 79 S.Ct. 1451, 3 L.Ed.2d 1545 (1959).

In cases involving LHWCA statutory presumptions, the court must use a two-part test. Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n.6 (1st Cir. 1969). Specifically, in this case, we must first determine if the employer has presented sufficient evidence to rebut the presumption against a finding that Walker's death was caused solely by intoxication. If we conclude the presumption has been rebutted, then we must employ the familiar substantial evidence test to determine if the ALJ's decision is properly supported. See part II supra. We now apply this test to the facts of this case.

IV.

At the hearing before the ALJ, the claimant and the deceased's employer did not dispute the immediate cause of death: Jessie Walker became only partially conscious, vomited, and subsequently asphyxiated. The claimant, however, maintained the partial unconsciousness was caused when Walker struck his head in the course of jumping or falling from the hatch cover. Universal Terminal contended that the reliable evidence provided no indication of trauma, creating the inference that intoxication was the sole cause of the partial unconsciousness and resulting death.

Two doctors testified in behalf of the claimant: Dr. Thomas A. Santoro, the medical examiner who conducted the autopsy on Jessie Walker, and Dr. Roland Goodman, who based his opinion solely on the reports of Dr. Santoro. Dr. Santoro found no evidence of trauma in his external examination of the body. Nor did he find any such evidence in his gross examination of the internal organs and tissues. Based on these observations, he then concluded that the cause of death was "asphyxiation, due to aspiration of gastric content." This aspiration, the doctor stated, came after Walker had vomited.

Dr. Santoro also had performed a toxicological examination for alcohol. The deceased's brain was found to have an ethyl alcohol content of 0.273 percent. Dr....