     Case: 15-60112   Document: 00513268147   Page: 1    Date Filed: 11/12/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                     FILED
                                                                November 12, 2015
                               No. 15-60112
                                                                  Lyle W. Cayce
                                                                       Clerk
RAMSAY SCARLETT & COMPANY; LIBERTY MUTUAL INSURANCE
COMPANY,

             Petitioners

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,

             Respondent

FERDINAND J. FABRE, JR.,

             Claimant - Respondent




                       Petition for Review of an Order
                        of the Benefits Review Board


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Ramsay Scarlett, the former employer of Ferdinand Fabre, age sixty-
four, appeals the Benefits Review Board’s affirmance of the Administrative
Law Judge’s order holding Ramsay Scarlett liable for medical expenses
attributable to Fabre’s asbestosis, under the Longshore Harbor Worker’s
Compensation Act, 33 U.S.C. §§ 901–950. We AFFIRM.
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                                No. 15-60112
                               BACKGROUND
      Claimant Ferdinand Fabre was employed by Ramsay Scarlett from 1969
to 1991. During that time, Fabre primarily worked at the Port of Baton Rouge,
though between approximately 1972 and 1976, he worked at a storage facility
known as Sharp Station. Id. It is undisputed that Sharp Station is not a
covered situs under the Longshore Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. §§ 901–950; see New Orleans Depot Servs., Inc. v. Dir.,
Office of Worker’s Comp. Programs, 718 F.3d 384, 393–94 (5th Cir. 2013).
Similarly, the parties do not dispute that the Port of Baton Rouge is a covered
situs under the LHWCA. From 1991 to 2013, Fabre was employed by Westway,
an employer also covered by the LHWCA and located at the Port of Baton
Rouge.

      The parties agree that Fabre was diagnosed with asbestosis in 2011.
Fabre contends that he was exposed to asbestos while working for Ramsay
Scarlett at both Sharp Station and the Port of Baton Rouge. The parties do
not dispute that Fabre was exposed to asbestos while working at Sharp
Station. Fabre alleges that, while working for Ramsay Scarlett at the Port of
Baton Rouge, he was exposed to asbestos while changing the brakes and
clutches of several types of equipment. Alleging that these conditions caused
his asbestosis, Fabre filed a claim for medical benefits under the LHWCA on
December 28, 2011. The Administrative Law Judge (“ALJ”) issued a nineteen-
page decision and order on September 10, 2013. After finding that Fabre
established a prima facie case of coverage under the LHWCA, that Ramsay
Scarlett did not rebut that case, and that Ramsay Scarlett was the last
maritime employer, the ALJ ordered Ramsay Scarlett to pay for all “reasonable
and necessary medical expenses arising out of [Fabre’s] work-related
occupational disease pursuant to 33 U.S.C § 907.” Ramsay Scarlett appealed
the ALJ’s ruling, and on September 25, 2014, the Benefits Review Board
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                                 No. 15-60112
(“BRB”) affirmed the ALJ’s decision and order.        Ramsay Scarlett timely
appealed.
                                DISCUSSION
                                       I.
      We review decisions by the BRB only to determine whether it adhered to
the proper scope of review—whether the ALJ’s findings were supported by
substantial evidence and were consistent with the law. Ceres Gulf, Inc. v. Dir.,
Office of Worker’s Comp. Programs, 683 F.3d 225, 228 (5th Cir. 2012).
Substantial evidence is “that relevant evidence—more than a scintilla but less
than a preponderance—that would cause a reasonable person to accept the
fact finding.” Id. (citation omitted). Importantly, the ALJ remains the sole
fact finder and must make all credibility determinations.          Id.   The BRB
correctly cited this standard articulated in our case law.
                                       II.
      Under the LHWCA, the claimant establishes a prima facie case for
coverage by showing that (1) a harm occurred and (2) the harm may have been
caused or aggravated by a workplace condition. Ceres Gulf, Inc., 683 F.3d at
229. If the claimant establishes these elements, a presumption arises that the
claim falls under the LHWCA. Id.; 33 U.S.C. § 920(a). The burden then shifts
to the employer to rebut the presumption “through facts—not mere
speculation—that the harm was not work-related.” Ceres Gulf, Inc., 683 F.3d
at 229 (citation omitted). This burden can be met by showing that working
conditions did not cause the harm or that the employee was exposed to the
same working conditions at a subsequent covered employer. Avondale Indus.,
Inc. v. Dir., Office of Workers’ Comp. Programs, 977 F.2d 186, 190 (5th Cir.
1992). If the ALJ finds that the employer rebutted the presumption, then the
ALJ must weigh all of the evidence to determine whether the harm was caused
by the claimant’s employment at the covered situs. See Ceres Gulf, Inc., 683
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F.3d at 229. We hold that the BRB correctly held that the ALJ properly applied
the LHWCA’s burden-shifting framework and relied on substantial evidence
when making his findings at each step.

      Ramsay Scarlett first argues that Fabre’s prima facie case is
unsubstantiated because there was not substantial evidence to establish that
Fabre was exposed to asbestos at the Port of Baton Rouge. When determining
that Fabre established a prima facie case, the ALJ relied on Fabre’s explicit
deposition testimony and the report of Frank Parker, an industrial hygienist.
Fabre testified that during his tenure at the Port of Baton Rouge, he changed
brakes and clutches on a variety of equipment, including cranes, that he
believed “definitely had asbestos on them” because “most of the things at that
time probably had asbestos in them.” Fabre stated that the components did
not have warning labels on them, that he often had to blow out dust when
installing the components, and that at an unknown time he read that these
components contained asbestos. In his report, Parker reviewed Fabre’s work
history and concluded that Fabre was first exposed to asbestos at Sharp
Station in the early 1970s. Parker also concluded that Fabre’s exposure to
asbestos, while less, continued when he returned to the Port of Baton Rouge
during the mid to late 1970s. Parker reported that during the time Fabre was
employed by Ramsay Scarlett at the Port of Baton Rouge, he was exposed to
asbestos because it was well documented that brakes and clutches, the
components    that   Fabre     handled,       exposed   workers   to   “significant
concentrations of asbestos.”

      The ALJ credited the above-described evidence when finding that Fabre
had met the low burden required to establish a prima facie case—that he
suffered a harm that a workplace condition could have caused or aggravated.
This evidence was more than a scintilla, and it might cause a reasonable

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person to accept the ALJ’s fact finding. See Sonat Offshore Drilling v. Avondale
Indus., 37 F. App'x 91, at *2 (5th Cir. 2002) (finding that the claimant’s
testimony and the testimony of one other employee was substantial evidence
to justify a prima facie case); see also Ingalls Shipbuilding, Inc. v. Dir., Office
of Workers’ Comp. Programs, 991 F.2d 163, 165 (5th Cir. 1993) (defining
substantial evidence as evidence that “a reasonable mind might accept as
adequate to support a conclusion” (citation omitted)).

       Ramsay Scarlett first attacks the credibility of Fabre’s deposition
testimony because his belief that he was exposed to asbestos arose only after
he read a newspaper article describing the presence of asbestos in certain
machinery.      Ramsay Scarlett also contends that Fabre contradicted his
assertions of exposure in two ways. Ramsay Scarlett points out that when
Fabre was first diagnosed with asbestosis in 2011, he only mentioned his
exposure at Sharp Station. Second, Ramsay Scarlett notes that Fabre did not
feel the need to wear a protective mask at the Port of Baton Rouge, even though
he wore one at Sharp Station. In addition to criticizing Fabre’s statements,
Ramsay Scarlett also criticizes Parker’s report for failing to cite historical
literature or other data and solely relying on the testimony of other
longshoremen.

       We have held that “under the [LHWCA], the ALJ, not the BRB, [is]
entitled to assess the relevance and credibility of testimony, including expert
testimony.” 1 Ceres Gulf, Inc., 683 F.3d at 229. The ALJ’s reliance on Fabre’s




       1 We have also held that “the formal rules of evidence do not apply in administrative
proceedings but rather ‘the admissibility of evidence depends on whether it is such evidence
as a reasonable mind might accept as probative.’” Atlantic Marine, Inc. v. Bruce, 661 F.2d
898, 900 (5th Cir. Unit B 1981) (quoting Young & Co. v. Shea, 397 F.2d 185, 188 (5th Cir.
1968), cert. denied, 395 U.S. 920 (1969)). In addition, Ramsay Scarlett did not challenge the
decision of the ALJ for relying on a fact unsupported by the record. 5 U.S.C. § 556 (“When
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deposition testimony and Parker’s report that was elaborated in five
paragraphs of record analysis under the caption “weighing the evidence”
demonstrates that the ALJ found this evidence relevant and credible. The
ALJ’s statement that Parker relied on “scientific literature, his education and
experience, and information generally relied upon my [sic] members of his
profession” also demonstrates that the ALJ regarded the expert testimony as
reliable. Ramsay Scarlett’s credibility attack on Fabre’s deposition testimony
and Parker’s report therefore fails. See Ceres Gulf, Inc., 683 F.3d at 228.

       Ramsay Scarlett also challenges Fabre’s prima facie case on the ground
that Fabre’s exposure to asbestos at the Port of Baton Rouge would have been
de minimis compared to his exposure at other non-maritime settings, such as
Sharp Station. However, “[t]he Fifth Circuit has . . . held that, regardless of
the brevity of the exposure, if it has the potential to cause disease, it is
considered injurious.” Avondale Indus., 977 F.2d at 190. As a result, this
argument also fails. The BRB did not err in finding that substantial evidence
supported the ALJ’s conclusion that Fabre established the presumption of a
LHWCA claim.

       Ramsay Scarlett next argues that even if Fabre did establish a prima
facie case, Ramsay Scarlett rebutted the presumption. To rebut the claimant’s
established presumption, Ramsay Scarlett must provide “factual doubt” and
“substantial evidence to the contrary.” See Ceres Gulf, Inc., 683 F.3d at 231;
Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003). The
only evidence that Ramsay Scarlett itself submitted on the causation issue was
evidence that, by 1976, the Occupational Health and Safety Administration


an agency decision rests on official notice of a material fact not appearing in the evidence in
the record, a party is entitled, on timely request, to an opportunity to show the contrary.”).


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had adopted regulations regarding asbestos, which would have greatly limited
any exposure to asbestos. But, Ramsay Scarlett did not present any evidence
that these asbestos regulations or any additional safety measures were ever
implemented at the Port of Baton Rouge. In addition, Ramsay Scarlett did not
present any evidence contradicting Fabre’s deposition testimony and Parker’s
report that there was asbestos in the brakes and clutches Fabre changed.
Therefore, a reasonable mind could accept that Ramsay Scarlett did not
provide factual doubt as to whether the working conditions of the Port of Baton
Rouge caused Fabre’s asbestosis.

      Ramsay Scarlett also argues that it rebutted the presumption by proving
that Ramsay Scarlett was not the last covered maritime employer. Ramsay
Scarlett contends that Fabre was exposed to asbestos at Westway, another
covered employer and his only subsequent employer. Id. Again, to rebut the
presumption, Ramsay Scarlett must put forth “substantial evidence to the
contrary” and provide “factual doubt.” See Ceres Gulf, Inc., 683 F.3d at 231;
Ortco Contractors, Inc., 332 F.3d at 287.

      Because Fabre testified that he worked around cranes, trucks, and other
equipment while employed at Westway, Ramsay Scarlett contends that Fabre
could have been exposed to asbestos at Westway. Ramsay Scarlett contends
that if such proximity evidence is enough to establish a prima facie case for
Fabre, it is enough to establish that Westway was the last covered employer.
When concluding otherwise, the ALJ relied on Fabre’s deposition testimony
that at Westway he was not exposed to asbestos and that he did not change
brakes and clutches, the same components that exposed him to dust at the Port
of Baton Rouge. Ramsay Scarlett did not put forth any factual evidence that
contradicted Fabre’s testimony that he was not exposed to asbestos and did not
change brakes and clutches at Westway. As a result, there was substantial

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                                 No. 15-60112
evidence for the ALJ to conclude that Ramsay Scarlett did not rebut the
presumption of a valid LHWCA claim because it did not provide factual doubt.

                                       III.

      Ramsay Scarlett also challenges the affirmance of the ALJ’s order
requiring Ramsay Scarlett to reimburse Fabre for annual flu and pneumonia
vaccines and the treatment of conditions including pneumonia and bronchitis.
The LHWCA requires an employer to reimburse a claimant for all medical
expenses that arise from a work-related injury and defines “injury” as a disease
or infection that arises “naturally” out of the employment. 33 U.S.C. §§ 902,
907. We have held that “[a] subsequent injury is compensable if it is the direct
and natural result of a compensable primary injury, as long as the subsequent
progression of the condition is not shown to have been worsened by an
independent cause.” Miss. Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 1000
(5th Cir. 1981). We apply a liberal causation standard when determining the
coverage of initial and subsequent injuries. Bludworth Shipyard, Inc. v. Lira,
700 F.2d 1046, 1051 (5th Cir. 1983).

      When determining coverage of Fabre’s medical treatment, the ALJ relied
on the deposition of Dr. Gomes, the doctor who diagnosed Fabre with
asbestosis at age sixty, and who Fabre now sees for a yearly x-ray and
pulmonary function test. In his deposition, Dr. Gomes testified that patients
with asbestosis require yearly flu and pneumonia vaccines to prevent chest
infections and that asbestosis increases the likelihood that one will develop
pneumonia and bronchitis. In response, Ramsay Scarlett contends that Fabre
did not establish a causal link between asbestos exposure and these respiratory
infections. Specifically, Ramsay Scarlett points out that Fabre had a history
of pneumonia before his asbestosis diagnosis. Ramsay Scarlett also asserts


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                                        No. 15-60112
that pneumonia is not always caused by asbestosis. 2 We defer to the ALJ’s
credibility determination and reliance on Dr. Gomes’s testimony. See Ceres
Gulf, Inc., 683 F.3d at 228. Given the liberal causation standard, a reasonable
mind could accept Dr. Gomes’s testimony and “the common sense of the
situation” as adequate to support the conclusion that these respiratory
ailments are a natural result of asbestosis and that flu and pneumonia
vaccines are necessary treatments for the disease. See Atlantic Marine, Inc. v.
Bruce, 661 F.2d 898, 900 (5th Cir. Unit B 1981).

                                       CONCLUSION

         For the forgoing reasons, we AFFIRM the BRB’s affirmance of the ALJ’s
order.




         Ramsay Scarlett also contends that the causation standard for subsequent injuries
         2

is a higher burden than the ALJ applied, citing, Amerada Hess Corp., et al. v. Director, Office
of Worker’s Comp. Programs, 543 F.3d 755 (5th Cir. 2008). In Amerada Hess, we remanded
the case for the ALJ to determine whether there was substantial evidence to conclude that a
heart condition was the “natural and unavoidable” result of a back injury. 543 F.3d. at 760–
62. However, the court’s decision rested on the fact that there was no expert testimony
linking the two conditions. Id. at 762 (stating “no qualified physician testified to [the] effect”
that “such treatment is necessary for a work-related condition” and “[i]t appears to us that
such a finding would benefit from, if not require, support of medical experts”). Conversely,
in his deposition, Dr. Gomes directly linked asbestosis to the relevant respiratory conditions.
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