
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-2163                           BATH IRON WORKS CORPORATION and                         COMMERCIAL UNION INSURANCE COMPANY,                               Petitioners, Appellants,                                          v.                 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,                          UNITED STATES DEPARTMENT OF LABOR,                               Respondents, Appellees.                                 ____________________                         ON PETITION FOR REVIEW OF A DECISION                             OF THE BENEFITS REVIEW BOARD                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Lynch, Circuit Judge                                          _____________                                 ____________________               Kevin M. Gillis with whom Troubh, Heisler & Piampiano was on               _______________           ___________________________          brief for petitioners.               G. William Higbee with whom McTeague, Higbee, MacAdam, Case,               _________________           ________________________________          Watson & Cohen was on brief for respondents.          ______________                                 ____________________                                   March 06, 1998                                 ____________________                      ALDRICH, Senior Circuit Judge.  Russell E. Harford,                               ____________________            Jr., a long time insulation installer for defendant Bath Iron            Works Corp. (BIW),  had to quit work because  of shortness of            breath.   Suit  is brought  on  his behalf  by the  Director,            Office  of Workers' Compensation Programs, U.S. Department of            Labor, under the Longshore  and Harbor Workers'  Compensation            Act  (LHWCA), 33  U.S.C.    901  et  seq.,  for  work-related                                             __  ____            disability due to "Asbestosis  and related diseases."  It  is            undisputed that Harford  developed lung  cancer, and  further            that his smoking  two plus packs of  cigarettes a day  for 32            years was a basic cause.  It  is also undisputed that, though            he  did not work  with asbestos, he  was exposed to  the dust            from  neighboring workplaces.    He seeks  to  bring in  this            exposure as  a contributor to  his cancer in order  to charge            the employer and its insurer.                      Trial   was  had  before  an  ALJ  on  letters  and            depositions  of medical  experts.   In his decision,  the ALJ            stated that  the asbestos did not have to be the "sole cause"            of the  cancer for claimant  to recover.  Rather,  the entire            disability would be compensable  if the asbestos  contributed            to, combined with, or aggravated it.1  In short, the ultimate                                        ____________________            1.  We note that the Board, similarly to the ALJ, viewed the            issue as whether "claimant's exposure to asbestos did . . .            cause or contribute to his lung cancer."  The parties share            this conception.  Thus, we understand "aggravate" to be            essentially synonymous with "contribute," and to refer to the            cancer.  No claim has been made for aggravation of associated                                          2            question was whether there was a "causal relationship between            Claimant's employment and his lung cancer."  The first issue,            however,  was  whether  the employer  had  met  the statutory            presumption  in claimant's favor.   Title 33  U.S.C.   920(a)            presumes,  "in the  absence of  substantial  evidence to  the            contrary-- (a) That  the claim comes within the provisions of            [the  Act]."  After  extensive review  and discussion  of the            evidence,  the ALJ found  that the presumption  was rebutted,            which  caused  it  to  "fall".    See  Sprague  v.  Director,                                              ___  _______      _________            O.W.C.P., 688  F.2d 862, 865  (1st Cir. 1982).   Weighing the            ________            evidence  without  the  presumption, he  found  there  was no            causal  relationship  between claimant's  employment  and his            cancer.  It  is to be stressed that this was  not for lack of            proof by the claimant, but by belief of  affirmative evidence            submitted  by  the employer.    Claimant did  not,  he found,            contract asbestosis, and asbestos without  asbestosis did not            cause or contribute to the cancer.                        The  Benefits  Review  Board   reversed  the  ALJ's            finding that  the presumption  in claimant's  favor had  been            rebutted, thereby ending the defense.  We reverse.                        Decision of the Benefits Review Board                        _____________________________________                      With  reference  to   the  presumption,  the  Board            stated,  "[The] employer's burden on rebuttal [is] to present                                        ____________________            symptoms.  Cf. Gardner v. Director, O.W.C.P., 640 F.2d 1385,                       ___ _______    __________________            1389 (1st Cir. 1981).                                          3            specific and  comprehensive evidence sufficient to  sever the            causal connection between the injury and the employment."  It            added,  "The unequivocal  testimony of  a  physician that  no            relationship  exists  .  .  .  is  sufficient  to  rebut  the            presumption."     This  positive   language   it  recast   as            "unequivocally  severs."    "Unequivocal,"  on  a  search  of            dictionaries, universally means "not  doubtful," or the like,            which we take to mean certainty.   That the Board so intended            is  inescapably  confirmed  by  its  response  to  employer's            expert, Dr. Cadman's unwillingness to be  absolutely certain.            Because  Dr.  Cadman,  in the  Board's  words,  conceded that            "asbestos  may have contributed to claimant's lung cancer and            that  he   could  not   exclude  that   exposure  as   having            contributed"  to   it,  the   Board  thought   his  testimony            insufficient to rebut the presumption.                      As  we  have previously  held,  the  presumption is            overcome with  substantial  evidence of  non-causation.   See                                                                      ___            Sprague,  688  F.2d at  865.   Substantial evidence  is "such            _______            relevant  evidence as  a  reasonable  mind  might  accept  as            adequate  to  support  a conclusion."    Id.  (quotations and                                                     ___            citation omitted).   This  means "reasonable  probabilities."            Cf. DaSilva v. American Brands,  Inc., 845 F.2d 356, 361 (1st            ___ _______    ______________________            Cir. 1988); Bath Iron Works Corp. v. Director,  O.W.C.P., 109                        _____________________    ___________________            F.3d 53, 56 (1st Cir.  1997); Oberlander's Case, 348 Mass. 1,                                          _________________            7,  200  N.E.2d  268 (1964)  (Workmen's  Compensation).   Dr.                                          4            Cadman's medical opinion was found insufficient by the Board,            however,  because he  could not  exclude  possibilities --  a            typical expert opinion.  This put an impossible burden on the            employer.                      We   have,  therefore,  two  questions.    Did  the            employer submit substantial evidence,  when properly defined?            (A  question  of  law  for   the  court,  not  dependent   on            credibility.  See  Sprague, 688 F.2d at 865; CNA  Ins. Co. v.                          ___  _______                   _____________            Legrow, 935  F.2d 430, 433-34 (1st Cir.  1991)).  At the same            ______            time,  we  may ask  whether  the  ALJ  was warranted  in  his            substantive findings.   In this connection we  note 33 U.S.C.              921(b)(3),                           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.            This means, obviously, that the ALJ's choice of inferences is            to be respected.  See Sprague, 688 F.2d at 866 ("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.").                                  The ALJ's Decision                                  __________________                      The ALJ's  conclusions are  backed by  an extensive            discussion  of the  several experts.   One  or more  of BIW's            experts  testified  that current  medical  evidence indicates            that a finding of interstitial fibrosis is necessary to reach                                          5            a diagnosis of  asbestosis.  There was testimony  that tissue            samples  and x-ray analyses produced no evidence that Harford            had asbestosis; that he did not have fibrosis  at the time of            his surgery, and  that the alveolar damage found  in a biopsy            some  months later was  caused by radiation  and chemotherapy            rather than by asbestos exposure.                        Two experts  testified on causation of  the cancer.            Dr. Cadman's conclusion was,                      [C]urrent    evidence    evaluating   the                      association  of  asbestos  exposure, lung                      fibrosis and lung cancer strongly suggest                      [sic]   that  the   excess  lung   cancer                                    ___________________________                      attributable  to  asbestos  is associated                      _________________________________________                      with fibrosis.  Therefore, lung cancer in                      _____________                      the absence of pulmonary fibrosis is most                      likely lung cancer which developed either                      from the effects of  smoking alone or  it                      arose unrelated  to any  known carcinogen                      as  occurs in  the  non-smoker. . . .   I                      believe that in  the absence of fibrosis,                      that [Mr. Harford's] lung cancer was most                      likely  the   result  of   prior  smoking                      history. (emphasis added).                      The ALJ concluded,                      Based on the  record medical evidence,  I                      determine that the employer/carriers have                      produced   specific  objective   clinical                      evidence  and  soundly  reasoned  medical                      opinions sufficient  to sever  the causal                      nexus  and  have   thereby  rebutted  the                      Section 20 presumption.            Since   the  ALJ  had  stated  earlier  that  cause  included            contribution, we find  that the ALJ was  warrantably covering            both in this  finding.  Dr. Cadman reasonably  could be found            as of  the opinion  that diffuse  interstitial fibrosis  (and                                          6            therefore  asbestosis)  is  generally present  when  asbestos            exposure is a  contributing cause to lung cancer.   Viz., the            probability  is   against   asbestos,  in   the  absence   of            asbestosis.   In other  words, asbestos  exposure had  had no            belated, contributory, effect, as well as no original effect.            We believe, following Dr. Cadman's reference to "excess" lung            cancer, particularly  when there  had been  negative evidence            covering  the  period  between  surgery  and  the  subsequent            biopsy, that his  last quoted sentence  is not to be  read as            limiting his opinion  to the original cancer.   In short, Dr.            Cadman's opinion  is substantial  evidence of  non-causation,            sufficient  both to  rebut the presumption  and to  support a            finding for BIW.                                        Next?                                        _____                      First, an  observation.  Harford's claim  was filed            on March  20, 1989, just short of nine  years ago.  The ALJ's            unfavorable decision  on the  merits was  filed  on June  10,            1991; the Board's remand for a hearing on damages on November            23,  1993.   BIW's petition  for review  of the  ALJ's damage            finding was  filed July 7,  1994.  This finding  was affirmed            automatically   under  the   statute,  Omnibus   Consolidated            Rescissions and Appropriations Act of  1996, Pub. L. No. 104-            134,    101(d), 110 Stat.  1321, 1321-219 (1996),  because of            the   Board's  not  having  passed  on  the  petition  before            September 12, 1996.  We believe the time  has come to resolve                                          7            matters.  If  we remand the case  to the Board to  review the            ALJ's  decision  on the  merits,  it  will  be bound  by  his            findings in the absence of error. See 33 U.S.C.    921(b)(3).                                              ___            Why  the unnecessary  steps?   The  short answer  is that  we            should take over  finally now.  And, indeed,  we have already            reviewed the ALJ's detailed and careful opinion.  Substantial            evidence  supports the  ALJ's conclusion  that  there was  no            causal relationship.  We find no error.                      The  decision  of  the  Benefits  Review  Board  is                      ___________________________________________________            reversed, and the denial of  claim of Russell E. Harford, Jr.            _____________________________________________________________            is reinstated.            ______________                                 - Dissent follows -                                          8                      LYNCH, Circuit  Judge, dissenting.   The  record in                      LYNCH, Circuit  Judge, dissenting.                             ______________            this  case sets  forth substantial  evidence  to support  the            Board's finding  that the employer, which had  rebutted the              920(a) presumption  that asbestos exposure  caused claimant's                                                        ______            lung  cancer, did  not  rebut the    920(a)  presumption that            asbestos exposure contributed  to claimant's lung cancer.   I                              ___________            would affirm the Board.                        The  employer's   evidence  all  went   to  initial            causation  with  one  exception.    That  exception  was  the            testimony of  its lead expert,  Dr. Cadman, and it  tended to            support claimant  on the  contribution issue.   In  testimony            introduced at the hearing, Dr. Cadman was invited and refused            to  testify  that  he  could  say  to  a  reasonable  medical            probability that  asbestos had  not contributed  to Harford's                                                ___________            cancer.   Rather, Dr. Cadman  testified that 10-15% of people            with  occupational  exposure  to  asbestos who  develop  lung            cancer  do   not  experience  fibrosis  in  the  lungs.    He            specifically  stated  (after  a  direct  question  on whether            asbestos could  have contributed  to  Harford's cancer)  that            asbestos  exposure "may be contributing," even in the absence            of asbestos-caused fibrosis, "although at a very small level,            because he does not have fibrosis."                        There is a crucial difference,  acknowledged in our            case  law, between employment-related  injuries that  are the            primary  cause of a  disability and those  which aggravate or                                          9            contribute  to  a  pre-existing  condition.    See  Director,                                                           ___  _________            O.W.C.P. v. Bath Iron  Works Corp., 129 F.3d 45, 50 (1st Cir.            ________    ______________________            1997); Bath Iron Works Corp. v. Director, O.W.C.P., 109  F.3d                   _____________________    __________________            53, 55 (1st Cir. 1997).  Under the "aggravation rule," even a            small   contribution  by  a  work-related  condition  to  the            claimant's disability  is sufficient to trigger full recovery            under the  LHWCA; primary causation  need not be shown.   See                                                                      ___            Hensley v.  Washington Metro.  Area Transit  Auth., 655  F.2d            _______     ______________________________________            264, 268 (D.C. Cir. 1981).  The aggravation rule embodies the            essentially humanitarian purposes  of the LHWCA.   It assures            that  a  claimant  is  compensated  where  employment-related            injury is not  the sole cause  of the claimant's  disability.            Here,  Dr. Cadman  testified that  the  absence of  asbestos-            caused fibrosis  is not  sufficient evidence  to support  the            conclusion  that  asbestos  exposure did  not  contribute  to            Harford's   cancer.    BIW   therefore  did  not   rebut  the            presumption that  asbestos exposure contributed  to Harford's            lung cancer.   The absence of fibrosis proves  nothing on the            contribution issue.                      The ALJ erroneously conflated the primary causation            and  contribution  analyses  and  incorrectly concluded  that            where  there   was  no   primary  causation   there  was   no            contribution, either.   The Board, performing these  analyses            separately,  recognized  the  significance  of  Dr.  Cadman's            testimony as to  contribution.  Because Dr.  Cadman expressly                                          10            stated that asbestos  exposure could have contributed  to the            cancer  in the  absence  of  fibrosis,  the  Board  correctly            reversed.  In light of the purposes of the Act, manifested by            the    920(a)  presumption,  and  the  precedent  that  close            questions should  be decided in  favor of  the claimant,  see                                                                      ___            Bath  Iron Works Corp. v. White,  584 F.2d 569, 574 (1st Cir.            ______________________    _____            1978), I respectfully dissent.                                          11
