
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1956               BATH IRON WORKS CORP., and LIBERTY MUTUAL INSURANCE CO.,                                     Petitioners,                                          v.          DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES                                 DEPARTMENT OF LABOR,                                     Respondent.                                 ____________________            PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, 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 claimant, Lawrence J. Shorette.        ______________                                 ____________________                                    March 21, 1997                                 ____________________                      LYNCH, Circuit Judge.  Bath  Iron Works Corporation                      LYNCH, Circuit Judge.                             _____________            ("BIW") and  its  insurer, Liberty  Mutual Insurance  Company            complain of a decision of the Benefits Review Board affirming            the  award of medical benefits to Lawrence J. Shorette, a BIW            employee.  The award was pursuant to the Longshore and Harbor            Workers' Compensation Act ("LHWCA"), 33 U.S.C.   901 et seq.,                                                                 _______            which  creates  a  presumption   that  a  claimant's  medical            condition is  causally  related to  his employment.   See  33                                                                  ___            U.S.C.    920(a).  The  Board agreed with  the administrative            law judge that BIW had failed to rebut this presumption.  BIW            disagrees,  arguing  that  it  adduced  substantial  evidence            tending to show  that Shorette's lung disease  was not caused            by his  employment at the Bath shipyard.   Shorette1 counters            that  BIW   presented  no  evidence  casting   doubt  on  the            possibility  that  his  work  at  BIW  had,  at   a  minimum,            aggravated his health problems.                                          I.                      Shorette  began working  as  a cleaner  at the  BIW            shipyard  in  Bath, Maine,  in  1981.   His  responsibilities            included   collecting  and  bagging   waste  asbestos  during            "asbestos  ripouts," and he was exposed to asbestos dust on a                                            ____________________            1.  The  named respondent  is the  Director of the  Office of            Workers'  Compensation   Programs   of  the   United   States            Department  of  Labor,  see  Ingalls  Shipbuilding,  Inc.  v.                                    ___  ____________________________            Director, Office  of Workers'  Compensation Programs,  117 S.            ____________________________________________________            Ct.  796, 807  (1997),  but Shorette  is  the real  party  in            interest and is represented by counsel.                                         -2-                                          2            daily basis.   Despite measures such  as protective equipment            and decontamination procedures, on several occasions  in 1981            Shorette may have inadvertently inhaled asbestos dust.                      Although   cleaners  were  required  to  undergo  a            decontamination  process  after  every  asbestos  ripout, the            decontamination  process  itself caused  unprotected asbestos            exposure when fellow workers,  covered with asbestos, entered            the area.  There were times while Shorette was working at the            shipyard  when he  had come  into contact with  fine airborne            dust  of unknown origin that might have been asbestos.  There            were  other incidents as  well.  On  one occasion, Shorette's            respirator hose  was disconnected  for about ten  minutes and            his  mask filled  with asbestos dust.   On  another occasion,            Shorette was working without  protective equipment in an area            that  supposedly contained no asbestos.   It later turned out            that there had been asbestos in the area.                      In  late  1981,  Shorette  began  periodic  medical            monitoring  through  BIW's  asbestos   surveillance  program.            Shorette's  initial  x-rays from  late  1981  and early  1982            revealed lung problems -- interstitial fibrotic changes which            could have  been caused  by asbestos  exposure.   The program            doctors recommended that Shorette no  longer perform asbestos            clean-ups, and from that time on his work has been limited to            general   cleaning.     In   1989,  x-rays   showed   further            deterioration of Shorette's  lung condition.   BIW Industrial                                         -3-                                          3            Health  Department  records   noted  "interstitial   fibrosis            suggestive  of asbestosis" in  1987, "probable asbestosis" in            1989  and "probable asbestosis with an ILO rating of 3/3"2 in            1991.                      In  March  1990,  Shorette asserted  a  LHWCA claim            against  BIW for medical benefits for  asbestosis.  A hearing            was  held  before  an ALJ  in  October 1992.    To  rebut the            statutory presumption in favor of  the employee, 33 U.S.C.               920(a), BIW submitted evidence suggesting that Shorette might            have been exposed to asbestos well before he began working at            the Bath shipyard.   Shorette had been in the  Navy from 1955            to  1959 and  he  agreed it  was  possible that  he had  been            exposed  to asbestos  during that period.   However,  BIW was            unable, upon  questioning Shorette, to identify  any specific            instances of exposure.  Shorette also might have been exposed            to  asbestos  while  working  at  Times Fibre  Communications            between 1966 and 1978, but again BIW's  questioning could not            identify any specific incidents.                      BIW   also  produced  medical  testimony  from  two            experts  indicating  that  it was  unlikely  that  Shorette's            exposure  to  asbestos in  1981 at  BIW  had caused  the lung            damage that was evident in x-rays from 1981 and 1982 because,                                            ____________________            2.  This  unfavorable  rating  is  based  on a  well-accepted            classification  scheme  for  occupational lung  disease,  and            reflects the  size and  extensiveness of the  obstructions on            the lung.                                         -4-                                          4            among  other reasons,  not enough  time had  passed.   In May            1982, Shorette  had    visited  Dr.  John  Kanwit,  a  family            practitioner,  who  diagnosed him  as  having  an acute  lung            infection  (probably bronchitis) and chronic asbestosis.  Dr.            Kanwit testified that, due to the long latency period between            exposure and  the development  of interstitial  lung changes,            "it would be less  than likely that asbestos exposure  a year            or less before the patient presented with  his symptoms would            have been the cause of his problem."  He further stated, "I'm            sure [the exposure] didn't help the situation, but I would be            very  surprised if  he  could develop  asbestosis quite  that            quickly."                      There  was   also  evidence  from  Dr.   Harder,  a            pulmonary  disease  specialist,  who   saw  Shorette  on  two            different occasions  during the summer  of 1991.   Dr. Harder            took  a  medical history  of the  1981  exposures and  of the            abnormal x-ray  findings  from 1981  and  1982.   Dr.  Harder            diagnosed  Shorette with  obstructive lung disease  caused by            cigarette smoking  and interstitial  lung disease of  unknown            cause.   He testified that interstitial changes have an eight            to  twenty year latency period,  and so he  did not think the            changes shown on  the 1981  and 1982 x-rays  could have  been            caused  by exposure in 1981.   He also noted that the absence            of  pleural plaques  on the  x-rays was  counterindicative of            asbestosis,  because  with  asbestos  related  lung  disease,                                         -5-                                          5            pleural plaques tend  to (but do  not always) develop  before            the interstitial  lung changes  become apparent.   Dr. Harder            indicated that exposure to asbestos was one possible cause of            Shorette'slungdisease butthathe couldnotrule outother causes.                      The  ALJ  found  that  BIW  had  not  rebutted  the            statutory  presumption of  a  causal  relationship between  a            claimant's employment and his medical condition.  He reasoned            that  "no basis has  been presented  for concluding  that the            progression of the disease noted on the 1989 x-ray film . . .            was  not related to the  1981 or 1982  exposures." Relying on            Brown  v. Jacksonville  Shipyards,  Inc., 893  F.2d 294,  297            _____     ______________________________            (11th Cir.  1990), the  ALJ found  that the  medical evidence            offered  by  the employer  did  not completely  rule  out the            possibility  that  the  claimant's  condition   was  causally            related to  the employment.   The ALJ therefore  ordered that            the  employer and the insurance carrier that bore the risk at            the  time of the asbestos exposure in 1981 pay for Shorette's            related  medical  expenses.     The  Benefits   Review  Board            affirmed,  stating   that  BIW  had  not  submitted  evidence            "sufficient  to rebut  the presumed  causal link  between the            progression of  the claimant's lung  disease as noted  on his            1989 x-ray and  his exposures to  asbestos while working  for            employer in 1981 and 1982."  This appeal ensued.                                         II.                                         -6-                                          6                      Our  review of  legal conclusions  by the  Board is            plenary; our  review of its factual  findings is deferential.            "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."   Sprague  v. Director,                                                    _______     _________            Office of  Workers' Compensation Programs, 688  F.2d 862, 866            _________________________________________            (1st Cir. 1982).                      There is no  question that  Shorette established  a            prima  facie  case  and thus  is  entitled  to  the statutory            presumption that his injury  or harm arose out of  and in the            course  of his  employment.   See 33  U.S.C.    920(a).   The                                          ___            burden was thus on the employer to rebut the presumption with            substantial  evidence that  the condition  was not  caused or            aggravated by his  employment.  BIW argues  that it submitted            substantial   evidence  showing   to  a   reasonable  medical            probability that Shorette's condition  was not related to his            employment,  and therefore  that  it rebutted  the  statutory            presumption.   It argues that  the ALJ and  Board imposed too            high  a  burden  on  the  employer  to  rebut  the  statutory            presumption.                      BIW argues  that the Board erroneously  applied our            decision  in  Sprague.    It  contends  that  it  did present                          _______            evidence  sufficient  to  rebut  the  presumption   that  the            condition shown in  the 1981  and 1982 x-rays  was caused  by            1981 exposures.   If that were what the Board  had decided in                                         -7-                                          7            this case, we  would agree  with the insurer.   The  employer            need not  rule out  any possible causal  relationship between            the claimant's employment  and his condition.   This would go            far beyond the substantial evidence standard set forth in the            statute.                      But  both  the  Board   and  the  ALJ  based  their            decisions at least in part on the ground that the 1989 x-rays            showed  an  aggravation  of  the   earlier  condition,  which            aggravation was presumptively caused by Shorette's employment            at  BIW.  The expert  opinions proffered by  the employer did            not address and did not present substantial evidence that the            condition  shown  in  the  1989 x-rays  was  not  related  to            Shorette's 1981  exposures.  BIW did  not present substantial            evidence  -- indeed it did  not present any  evidence -- that            the  1989 condition was not  at least aggravated  by the 1981            exposure  at BIW.   The  employer is  liable if  the exposure            either  caused the disease  or caused  an aggravation  of the            disease.   The employer having failed to meet its evidentiary            burden, the decision of the Board is affirmed.                                                 ________                                         -8-                                          8
