                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2008

C&C Marine v. Director OWCP
Precedential or Non-Precedential: Precedential

Docket No. 07-1867




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                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 07-1867


    C&C MARINE MAINTENANCE COMPANY,

                              Petitioner

                        v.

          ROGER BELLOWS; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
    UNITED STATES DEPARTMENT OF LABOR;
           BENEFITS REVIEW BOARD,
    UNITED STATES DEPARTMENT OF LABOR,

                             Respondents


          On Petition for Review from an
        Order of the Benefits Review Board,
        United States Department of Labor
       (Benefits Review Board No. 06-0434)


     Submitted Under Third Circuit LAR 34.1(a)
                   June 2, 2008
       Before: FISHER and JORDAN, Circuit Judges,
                and YOHN,* District Judge.

                    (Filed: August 6, 2008)

Leonard Fornella
Babst, Calland, Clements & Zomnir
Two Gateway Center, 8th Floor
Pittsburgh, PA 15222
       Attorney for C & C Marine
       Maintenance Company

Jonathan L. Snare
Allen H. Feldman
Mark A. Reinhalter
Peter B. Silvain, Jr.
United States Department of Labor
Office of the Solicitor
Suite N-2117
200 Constitution Avenue, N.W.
Washington, DC 20210
       Attorneys for Director, Office of
       Workers’ Compensation Programs




       *
         The Honorable William H. Yohn Jr., United States
District Judge for the Eastern District of Pennsylvania, sitting by
designation.

                                2
Robert J. Taylor
Taylor, Hladio & Alsko
337 Merchant Street
Ambridge, PA 15003
      Attorney for Roger Bellows



                OPINION OF THE COURT


FISHER, Circuit Judge.

       This appeal arises out of the Benefits Review Board’s
(“BRB”) decision to affirm an Administrative Law Judge’s
(“ALJ”) order that C&C Marine Maintenance Company (“C&C
Marine”) must pay Roger Bellows permanent disability benefits
under the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. §§ 901-950. For the reasons that
follow, we will affirm the order of the BRB.

                             I.

       On May 3, 2000, Roger Bellows, an employee of C&C
Marine, moved lime from one barge to another. While doing so,
he stepped in a pile of the chemical and suffered second and
third degree chemical burns on his legs. Five days later, on
May 8, 2000, he sought treatment for the chemical burns from
Dr. Olu Sangodeyi. Dr. Sangodeyi removed the necrotic tissue
from Bellows’ legs. Over the next two months, Dr. Sangodeyi



                             3
monitored the wounds on Bellows’ legs and found that they
were healing satisfactorily.

        However, Bellows continued to experience ankle pain,
and on July 3, 2000, Dr. Sangodeyi ordered an x-ray of his left
leg. The x-ray revealed a deformity of Bellows’ distal tibia and
fibula. Dr. Sangodeyi ordered further tests to determine if
osteomyelitis could be the cause of the deformity,1 but these
tests ruled out osteomyelitis as a cause of Bellows’ condition.

        In August 2000, Dr. Sangodeyi advised Bellows to return
to his primary care doctor for any further treatment because the
wounds on his legs had healed. Bellows sought advice from his
primary care doctor for the continuing pain in his left ankle, and
the doctor referred Bellows to an orthopedic surgeon, Dr. Steven
Thomas. Dr. Thomas ordered an x-ray of Bellows’ left ankle,
and at that time, he determined that Bellows’ ankle had
degenerative changes caused by either aggressive arthritis or a
past traumatic episode.

       Beginning in May 2000 when the accident occurred,
C&C Marine made voluntary payments to Bellows for his
medical bills and temporary disability benefits. After Bellows
returned to work on October 2, 2000, C&C Marine ceased its
payments to him, effective as of October 6, 2000.

       1
        In Dr. Sangodeyi’s records, he had noted that Bellows
had a prior history of osteomyelitis in his lower left leg.
Osteomyelitis is inflammation and destruction of bone caused by
bacteria, mycobacteria, or fungi. The Merck Manual 317 (18th
ed. 2006).

                                4
       Bellows continued to experience pain in his left ankle,
and on April 15, 2002, he returned to Dr. Thomas. On May 5,
2002, Bellows stopped working at C&C Marine due to this pain.
Approximately two weeks later, Dr. Thomas surgically fused his
ankle to his leg. As a result of this surgery, Bellows was unable
to return to work at C&C Marine. On July 12, 2002, Dr.
Thomas wrote a letter to Bellows’ attorney, stating that “the
industrial burns may have irritated [Bellows’] left ankle.” At
Dr. Thomas’ deposition on December 15, 2004, he opined that
while he did not believe that the lime burns could cause the
degenerative changes to Bellows’ left ankle, he believed that the
lime burns exacerbated Bellows’ arthritic condition.

        On October 17, 2002, Bellows filed a claim against C&C
Marine under the Jones Act in the Beaver County Court of
Common Pleas. This claim was dismissed on October 7, 2003.
On October 13, 2003, Bellows filed a claim against C&C
Marine for disability compensation under the LHWCA with the
United States Department of Labor. In Bellows’ claim, he
contended that he was permanently disabled and could no longer
work because the chemical burns aggravated a pre-existing
arthritic condition in his left ankle to the point where it needed
to be surgically fused with his leg. C&C Marine challenged
Bellows’ claim, and in the alternative, it argued that Bellows
had a pre-existing permanent partial disability, thereby entitling
it to partial relief from its liability under section 8(f) of the
LHWCA, 33 U.S.C. § 908(f).

      The ALJ conducted a hearing on Bellows’ claim, and on
January 25, 2006, the ALJ issued a decision holding C&C
Marine liable to Bellows for disability compensation. C&C

                                5
Marine filed a timely appeal with the BRB. On January 31,
2007, the BRB affirmed the ALJ’s decision. C&C Marine’s
timely petition for review followed.

                              II.

        We exercise jurisdiction over final orders of the BRB
pursuant to 33 U.S.C. § 921(c). “Our examination is limited to
a determination of whether the Board acted in conformance with
applicable law and within its proper scope of review. Because
the Board does not administer the [LHWCA], our review of its
interpretation of the Act is essentially plenary but we will
respect [the Board’s] interpretation if it is reasonable.” Maher
Terminals, Inc. v. Dir., Office of Workers’ Comp. Programs,
330 F.3d 162, 166 (3d Cir. 2003) (internal quotation marks and
citations omitted). We will find that the BRB acted within its
scope of review if its findings of fact are “supported by
substantial evidence in the record considered as a whole.” See
33 U.S.C. § 921(b)(3). “[Substantial evidence] is less than a
preponderance of the evidence but more than a mere scintilla.”
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (internal
quotation marks and citation omitted).

                              III.

                              A.

      C&C Marine first argues that the BRB’s finding that
Bellows’ claim was timely under the LHWCA was not
supported by substantial evidence. The LHWCA requires a
claimant to file a claim for disability compensation “within one

                               6
year after the injury,” or “within one year after the date of the
last [voluntary] payment [the employer made for such injury].”
33 U.S.C. § 913(a). In the present case, Bellows’ injury
occurred on May 3, 2000, and C&C Marine paid him
compensation for that injury until October 6, 2000. Thus, C&C
Marine contends that Bellows should have filed his claim by
October 6, 2001, one year after the date of C&C Marine’s last
voluntary payment to him.

        However, the LHWCA tolls the deadline for filing a
claim, regardless of any payments made, “until the employee .
. . is aware, or by the exercise of reasonable diligence should
have been aware, of the relationship between the injury . . . and
the employment.” Id. Courts have generally found that this
provision tolls the statute of limitations “until the claimant is
aware of the full character, extent and impact of the harm done
to him.”2 Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294,
296 (11th Cir. 1990) (citing Todd Shipyards Corp. v. Allan, 666
F.2d 399 (9th Cir. 1982); Bath Iron Works v. Galen, 605 F.2d
583 (1st Cir. 1979); Stancil v. Massey, 436 F.2d 274 (D.C. Cir.
1970)).

        Utilizing this interpretation of the tolling provision,
substantial evidence supports the ALJ’s conclusion that the
statute of limitations began to run on July 12, 2002, as that is
when Bellows became aware of the relationship between his
injury and his employment. On this date, Dr. Thomas wrote a

       2
        To the extent that C&C Marine challenges the BRB’s
interpretation of the LHWCA, it is unavailing because this
reading of the LHWCA is reasonable.

                               7
letter to Bellows’ attorney, stating that “the industrial burns may
have irritated [Bellows’] left ankle.” As the ALJ and BRB
found, it was at this time that Bellows was aware of both the full
extent of his injury and that it was, at least in part, caused by his
employment.3

        As a result, Bellows initially had until July 12, 2003 to
file his claim under the LHWCA. See 33 U.S.C. § 913(a).
Additionally, the time for filing a claim under the LHWCA was
tolled during the pendency of Bellows’ Jones Act claim, which




       3
         In its reply brief, C&C Marine argues that Bellows was
aware of the relationship between his injury and his employment
as of October 24, 2000. In an injury status report from that date,
Bellows’ doctor wrote that she told him that “the ankle pain
‘could have’ been aggravated by the burn.” However, C&C
Marine neglected to make this point in its opening brief, and
thus, it has waived this argument. See Skretvedt v. E.I. Dupont
de Nemours, 372 F.3d 193, 202 (3d Cir. 2004) (“We have held
on numerous occasions that an issue is waived unless a party
raises it in its opening brief . . . .” (internal quotation marks and
citations omitted)). Moreover, even though this report casts
doubt on when Bellows became aware of the relationship
between his injury and his employment, Bellows would not yet
have realized the full impact of his injury as he had only
recently returned to work. Only when he had the ankle fusion
surgery in May 2002 would Bellows have become aware of the
full extent of his injury, and even if the statute of limitations
period had begun to run at that time, his claim would be timely.

                                 8
he filed on October 17, 2002. See 33 U.S.C. § 913(d).4
Bellows’ Jones Act claim was dismissed on October 7, 2003,
and thus, he timely filed his claim under the LHWCA on
October 13, 2003, because only about three months of the
applicable statute of limitations period had run. Therefore, the
BRB acted within its scope of review in affirming the ALJ’s
conclusion that Bellows’ claim was timely.

                                B.

        C&C Marine next argues that there was not substantial
evidence to support the BRB’s finding that Bellows’ lime burns
aggravated his pre-existing arthritic condition in his lower left
leg. C&C Marine contends that Dr. Thomas’ September 2000
report, which stated that Bellows had “significant degenerative
joint disease in his left ankle which I do not believe is associated
with the burn,” demonstrates that there was no correlative link
between the two. However, two years later, Dr. Thomas stated
that “the industrial burns may have irritated [Bellows’] left

       4
        Section 913(d) provides:
       Where recovery is denied to any person, in a suit
       brought at law or in admiralty to recover damages
       in respect of injury or death, on the ground that
       such person was an employee and that the
       defendant was an employer within the meaning of
       this Act and that such employer had secured
       compensation to such employee under this Act the
       limitation of time prescribed in subdivision (a)
       shall begin to run only from the date of
       termination of such suit.

                                 9
ankle.” Moreover, at Dr. Thomas’ deposition, he explicitly
stated that “[s]omething happened in May to [Bellows’] tibia
region with the burns that exacerbated the arthritic change.”
Therefore, substantial evidence supported the BRB’s finding
that Bellows’ lime burns aggravated his pre-existing arthritic
condition.

                               C.

        C&C Marine also argues that the BRB erred in finding
that C&C Marine had not presented substantial evidence that
Bellows’ injury was not work related. Under the LHWCA,
there is a presumption that an employee’s claim comes within
the LHWCA’s provisions “in the absence of substantial
evidence to the contrary.” 33 U.S.C. § 920(a). The employer
may rebut this presumption by presenting substantial evidence
that the employee’s disability did not result from a work-related
injury. See id. § 903(a) (stating that the LHWCA’s scope for
compensable injuries includes only incidents where “the
disability or death results from an injury occurring upon the
navigable waters of the United States”); see also Sprague v.
Dir., Office of Workers’ Comp. Programs, 688 F.2d 862, 865
(1st Cir. 1982). An employee’s disability results from a work-
related injury where the injury aggravates a pre-existing
condition. See Strachan Shipping Co. v. Nash, 782 F.2d 513,
517 (5th Cir. 1986) (en banc) (stating general rule that a work-
related injury that aggravates a pre-existing condition is fully
compensable). Thus, for C&C Marine to have prevailed in
rebutting the presumption, it needed to present substantial
evidence that Bellows’ lime burns did not cause or aggravate his
arthritic condition.

                               10
        We agree with the BRB that C&C Marine has not met its
burden because it did not provide substantial evidence
demonstrating that Bellows’ lime burns did not aggravate his
arthritic condition. C&C Marine argues that it presented
substantial evidence that Bellows’ lime burns did not cause his
arthritic condition because Dr. Thomas initially stated that the
two conditions were unrelated. Dr. Thomas, however, later
changed his opinion. C&C Marine did not address Dr. Thomas’
change of opinion regarding the correlation between the two
conditions, and instead relied on Dr. Thomas’ earlier statements
alone. As a result, the BRB did not err in concluding that C&C
Marine failed to put forth substantial evidence that Bellows’
disability did not result from his work-related lime burn
aggravating his pre-existing arthritic condition.

                               D.

        Finally, C&C Marine argues that if there was a
relationship between Bellows’ lime burns and his arthritic
condition, the BRB erred in finding that C&C Marine was not
eligible for relief under 33 U.S.C. § 908(f). Section 908(f)(1)
provides that an employee is entitled to compensation from his
employer for only one hundred and four weeks if he is injured
and permanently disabled, but has a pre-existing condition “such
[that his] disability is materially and substantially greater than
that which would have resulted from [his] subsequent injury
alone.” After the employer makes these payments, “the
employee . . . shall be paid the remainder of the compensation
that would be due out of the special fund established in [33
U.S.C. § 944].” 33 U.S.C. § 908(f)(2).



                               11
       For an employer to be eligible for relief under § 908(f),
it must show that its employee’s pre-existing disability was
manifest to it. See Pa. Tidewater Dock Co. v. Dir., Office of
Workers’ Comp. Programs, 202 F.3d 656, 658 (3d Cir. 2000);
see also Dir., Office of Workers’ Comp. Programs v. Sun Ship,
Inc., 150 F.3d 288, 295 (3d Cir. 1998). An employer can
establish manifestation by demonstrating that it had either actual
or constructive knowledge of its employee’s pre-existing
disability. See Sun Ship, 150 F.3d at 295. To demonstrate
constructive knowledge, the employer must show “that it could
readily have discovered the disability by looking at the
employee’s medical records.”5 Id. (citations omitted).

       5
        As the BRB accurately described our precedent under
Pennsylvania Tidewater Dock Co. v. Director, Office of
Workers’ Compensation Programs, 202 F.3d 656 (3d Cir.
2000), and Director, Office of Workers’ Compensation
Programs v. Sun Ship, Inc., 150 F.3d 288 (3d Cir. 1998), its
interpretation of the LHWCA was reasonable. To the extent that
C&C Marine argues that the BRB erred by not following the
decision of the Court of Appeals for the Sixth Circuit in
American Shipbuilding Co. v. Dir., Office of Workers’ Comp.
Programs, 865 F.2d 727, 732 (6th Cir. 1989), its argument is
unavailing. In American Shipbuilding, the Sixth Circuit held
that an employer can receive relief under § 908(f) by showing
that an employee’s pre-existing disability existed prior to his
work-related injury; it did not require the disability to be
manifest to the employer. 865 F.2d at 732. However, our
established precedent requires the pre-existing condition to be
manifest to the employer, and in so holding, we have rejected
the Sixth Circuit’s decision in American Shipbuilding. See Sun

                               12
       In the present case, C&C Marine does not claim that it
had actual knowledge of Bellows’ pre-existing arthritic
condition. Moreover, it does not claim that Bellows’ medical
records were readily discoverable nor has it produced any of
them. Instead, C&C Marine argues that medical records
identifying Bellows’ arthritic condition must have existed before
his accident on May 3, 2000.6 As C&C Marine has only offered
speculation that these medical records exist, substantial evidence
supports the BRB’s conclusion that C&C Marine failed to meet
Sun Ship’s manifestation requirement.

                               IV.

      For the foregoing reasons, we will affirm the order of the
Benefits Review Board.




Ship, 150 F.3d at 295-96 & n.8. Therefore, the BRB was correct
in not applying American Shipbuilding to the present case.
       6
        To the extent that C&C Marine argues that Bellows is
unwilling to provide information regarding the whereabouts of
these records, this argument is unavailing. Even if Bellows had
such information, he would have no incentive to withhold it
because his disability compensation remains the same regardless
of whether C&C Marine qualifies for § 908(f) relief.

                               13
