                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-2525


METRO MACHINE CORPORATION, d/b/a General Dynamics NASSCO-
Norfolk; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED,

                Petitioners,

           v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; DELORES STEPHENSON,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(2014-0425)


Argued:   December 8, 2016                   Decided:   January 20, 2017


Before TRAXLER, FLOYD, and THACKER, Circuit Judges.


Petition denied by published opinion.    Judge Traxler wrote the
opinion, in which Judge Floyd and Judge Thacker joined.


ARGUED: Frank Nash Bilisoly, VANDEVENTER BLACK, LLP, Norfolk,
Virginia, for Petitioners.    Gregory Edward Camden, MONTAGNA,
KLEIN, CAMDEN, LLP, Norfolk, Virginia; Matthew W. Boyle, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen
James,   Associate Solicitor,   Mark  Reinhalter,  Counsel  for
Longshore, Sean G. Bajkowski, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent United States Department of
Labor.
TRAXLER, Circuit Judge:

     Metro      Machine     Corporation          and    Signal      Mutual     Indemnity

Association, Limited, petition for review of an order of the

Benefits Review Board affirming decisions of an ALJ granting a

claim    for    medical     benefits      under        the    Longshore      and    Harbor

Workers’    Compensation        Act     (“the    Act”),       see   33   U.S.C.     § 907.

Finding no reversible error, we deny the petition.

                                            I.

        Before setting out the facts underlying this appeal, we

will begin with a brief discussion of some of the relevant legal

concepts.

     The       Act     “creates     a    comprehensive          federal      scheme     to

compensate workers injured or killed while employed upon the

navigable waters of the United States.”                        Estate of Cowart v.

Nicklos Drilling Co., 505 U.S. 469, 470-71 (1992).                                 The Act

requires    employers      to     furnish      medical       care   to   employees     who

suffer an “injury” within the meaning of the Act.                             33 U.S.C.

§ 907.     As is relevant here, “injury” is defined as an

     accidental injury or death arising out of                       and in the
     course of employment, and such occupational                      disease or
     infection as arises naturally out of such                        employment
     or as naturally or unavoidably results                           from such
     accidental injury.

33 U.S.C. § 902(2).          “Arising ‘out of’ and ‘in the course of’

employment are separate elements: the former refers to injury

causation;       the     latter       refers      to     the     time,     place,      and

                                            2
circumstances of the injury.”                        U.S. Indus./Fed. Sheet Metal,

Inc.     v.    Director,       OWCP,      455       U.S.     608,    615       (1982)    (“U.S.

Industries”).           “Through       what      has    come    to        be    known   as   the

aggravation       rule,       the      courts        have     extended          [§ 902(2)’s)]

definition       such       that,    if    an       employment       injury       aggravates,

accelerates, or combines with a previous infirmity, the entire

disability is compensable.”                     Newport News Shipbuilding & Dry

Dock Co. v. Fishel, 694 F.2d 327, 329 (4th Cir. 1982).

       Because Congress recognized that the elements of § 902(2)

“would    be    difficult       to     prove,”        Director,       OWCP       v.   Greenwich

Collieries,      512     U.S.   267,      280       (1994),     Congress         provided    the

§ 20(a) presumption, the proper interpretation of which is a

central       issue    in    this    appeal.           The    statute          describing    the

presumption provides, “In any proceeding for the enforcement of

a claim for compensation under this Act it shall be presumed, in

the absence of substantial evidence to the contrary . . . [t]hat

the claim comes within the provisions of this Act.”                                   33 U.S.C.

§ 920(a).

       The     parties      agree    that       to     invoke       the    presumption,      an

employee must allege a prima facie case that “(1) an injury or

death (2) . . . arose out of and in the course of (3) his

maritime employment.”               Universal Maritime Corp. v. Moore, 126

F.3d 256, 262 (4th Cir. 1997).                       To establish this prima facie

case, a claimant must show “(1) that he suffered physical harm

                                                3
and (2) that a workplace accident or workplace conditions could

have caused, aggravated, or accelerated the harm.”                       Bath Iron

Works Corp. v. Fields, 599 F.3d 47, 53 (1st Cir. 2010) (emphasis

added).   Once the prima facie case is established, the burden of

production shifts to the employer, who must produce evidence

that could justify a reasonable factfinder in concluding that

the claimant either did not suffer physical harm or that no

workplace accident or workplace conditions caused, aggravated,

or accelerated the harm.             See id.; accord Moore, 126 F.3d at

262-63.     If the employer satisfies this burden, the presumption

falls out of the case, and the factfinder is left to find the

necessary facts without considering the presumption.                     See Moore,

126 F.3d at 262-63.

                                        II.

     We   now    turn   to    the    facts    before    us.       John   Stephenson

(“Claimant”)      worked      for    Metro     Machine        Corporation    as     a

pipefitter in Virginia from August 1983 until August 2011.                        He

has a long history of breathing problems.                      He suffered from

asthma until he was approximately eight years old, and he began

smoking   when    he    was    16.      He    has      received    treatment      for

bronchitis caused by his smoking since the early 1980s.                     And he

received treatment for a productive cough and wheezing in 1985

and 1986.       Additionally, he regularly suffered from bronchitis

during winters, and his bronchitis was treated with antibiotics.

                                         4
He has been taking steroids for his wheezing and coughing since

1986.      He     was    diagnosed          with      chronic   obstructive       pulmonary

disease 1 (“COPD”) in 1996 and emphysema in 2001.

      On    February          18,        2008,     Claimant     was     working    in    the

superstructure of a vessel.                      During his workday, which lasted

more than eight hours, he inhaled fumes from welding and burning

and the application of epoxy paint (“the exposure”); inhaling

these     fumes    caused          him    breathing      problems.       After     Claimant

finished his shift and went home, the problems continued all

night,     prompting         him    to     go    to   the   emergency     room    the    next

morning.      At the hospital, he was diagnosed with “[e]xacerbation

of chronic obstructive pulmonary disease.”                            S.J.A. 1.     He was

admitted and remained hospitalized for eight days, during which

time he was prescribed steroids, inhalers, empiric antibiotics,

and   albuterol         to    treat       his    COPD.      Upon      discharge,    he    was

prescribed a nebulizer and oxygen concentrator, which he had not

used prior to the hospitalization.

      Metro       paid       Claimant       compensation        for     temporary       total

disability from February 19, 2008, through August 3, 2008, and

later for temporary partial disability from September 16, 2009,

through September 29, 2009.                      When he returned to work, he was

      1COPD is “any disorder characterized by persistent or
recurring obstruction of bronchial air flow, such as chronic
bronchitis,   asthma,  or   pulmonary   emphysema.” Dorland’s
Illustrated Medical Dictionary 530 (32nd ed. 2012).


                                                  5
restricted from going aboard the ship and limited in the amount

of weight he could lift.

     Claimant       voluntarily       retired       in    2011.         Since      his

retirement,    he   has    begun     using   his    oxygen      concentrator      more

frequently.      He has continued taking the same medications he

took when he was hospitalized, but he has increased his dosages.

He reports that his coughing has improved over time although his

shortness of breath has worsened.

     In October 2011, Claimant was treated for a fracture at the

T7 vertebra by Dr. Alireza Jamali.                  Dr. Jamali stated in an

office note that the fracture was “most likely due to excessive

coughing.”     S.J.A. 8.        In February 2012, Dr. Jamali wrote that

Claimant     “required     a    long-term      intake     of    the    steroid    for

management of his respiratory condition,” which “contributed to

osteoporosis and pathological fracture of T7.”                    S.J.A. 15.      Dr.

Jamali opined that the fracture was “directly due to long-term

steroid intake” from the management of Claimant’s respiratory

condition.    S.J.A. 15.

     Asserting      that       his   injuries      were   the     result     of   the

exposure,    Claimant      requested    that    Metro     pay    for   his   medical

treatment.     Metro refused and filed a notice of controversion on

March 15, 2012, asserting that the treatment he had requested

was not related to the exposure.                On March 30, 2012, Claimant

filed a claim for compensation, Form LS-203, under the Act.                         In

                                         6
the spaces on the form calling for the date of the injury and a

description          of     the    accident,         he     answered          “2/18/2008”      and

“exposure to fumes,” and in the space calling for identification

of the part of body affected, he answered, “Lungs.”                               J.A. 11.

       On   May      15,     2012,    a    claims         examiner        held    an       informal

conference.           Memoranda       memorializing              the    conference         indicate

that Claimant had sought medical benefits for both his ongoing

COPD     and      his       fractured      vertebra.               The        claims       examiner

recommended payment of benefits for both conditions.

       The ALJ held a hearing regarding the claim on September 25,

2013.          The    parties       stipulated            that     Claimant       injured      his

pulmonary organs on February 18, 2008; that the injury arose out

of and in the course of Claimant’s employment with Metro; and

that the Act applies to the claim.

       The medical evidence introduced at the hearing included the

May 2013 deposition of Claimant’s long-time treating physician,

Dr.     Ignacio       Ripoll,       who    was       board-certified             in    pulmonary

medicine       and    had    been    a    practicing         pulmonary         specialist       for

approximately         30     years.        The       evidence          also    included      three

letters Dr. Ripoll had written before the deposition concerning

the     possible          causal    relationship           between       the     exposure       and

Claimant’s worsening COPD.                 The letters evidenced Dr. Ripoll’s

changing       views        regarding     the        existence          of    such     a     causal

relationship.

                                                 7
     The ALJ summarized the contents of the three letters:

          In a letter dated January 10, 2012, Dr. Ripoll
     wrote that Claimant suffers from severe COPD with a
     grade IV impairment using the AMA guides. Dr. Ripoll
     listed the dates and results of several pulmonary
     function tests beginning in June of 2008, noting that
     at   that  time   Claimant’s  COPD   was   severe  and
     deteriorating at a rate of three percent per year.
     Dr. Ripoll noted that Claimant had more symptoms after
     the 2008 exposure than prior to it and therefore found
     with a reasonable degree of medical certainty that the
     exposure worsened his pulmonary condition, which has
     declined since that time.

          After   receiving   pulmonary   function   testing
     results dating back to January of 1986, Dr. Ripoll
     wrote a follow-up letter dated July 16, 2012.       Dr.
     Ripoll opined that the historical data cast doubt on
     the role of fume exposures respecting Claimant’s
     declining respiratory function.     Dr. Ripoll stated
     that the data indicated that the exposure caused an
     acute pulmonary event, but did not affect the rate of
     progression of the underlying disease.      Dr. Ripoll
     included the caveat that the November 2001 and January
     2007 results could be artificially low due to some
     acute condition at those times and additional testing
     after the January 2007 values could indicate whether
     Claimant’s  lung   function   improved   to   a  stable
     baseline.

           A November 28, 2012 letter included a graph of
     Claimant’s FEV1 [one-second forced expiratory volume
     results] from 1986 until 2011. Dr. Ripoll noted that
     the slope of Claimant’s FEV1 decline changed after
     Claimant’s exposure to fumes in 2008.        Dr. Ripoll
     found   that   the  rate  of   deterioration   increased
     following the inhalation injury and thus concluded
     that it was highly likely that the February 2008
     inhalation injury caused the rapid deterioration in
     lung function seen after that time.

J.A. 193-94 (citations omitted).

     Finally,   in   his   2013   deposition,   Dr.   Ripoll   described

Claimant’s lung disease as “chronic obstructive lung disease or


                                    8
chronic      bronchitis,       chronic    inflammation.”               J.A.   43.        He

testified that Claimant’s lungs had been irreparably damaged by

his many years of smoking, and that his lung function would

continue to deteriorate despite any medications he might take.

Nevertheless, he testified that he continued to believe, to a

reasonable degree of medical certainty, that the data showed a

significant acceleration in the progression of the lung disease

after the 2008 exposure.

       Following       the     hearing,       the     ALJ    found     that      Claimant

established a prima facie case by showing a harm – the worsening

of his COPD – and a work incident that could have caused or

aggravated that harm.            Therefore, he found Claimant entitled to

the    § 20(a)      presumption    that       the    worsening    of    his    COPD     was

compensable.

       The    ALJ    observed     that    Metro       sought     to    show   that      any

aggravation of Claimant’s COPD caused by the exposure was only

temporary.          In support of this position, Metro submitted the

opinion of Dr. Ripoll, along with treatment records.                          Given the

contradictory and uncertain opinions that Dr. Ripoll had issued,

however,      the    ALJ     concluded    that       Dr.    Ripoll’s    opinions       were

“entitled     to     little    weight”    and        “insufficient      to    rebut    the

presumption.        J.A. 205.     Noting that no other evidence tended to

show   that    any    exacerbation       of       Claimant’s   COPD     caused    by    the

exposure was only temporary, the ALJ concluded that Metro had

                                              9
not rebutted the § 20(a) presumption.                    He thus awarded Claimant

past and future medical benefits for his work-related COPD.

      Despite prevailing regarding the COPD, Claimant moved for

reconsideration, contending that the ALJ had failed to address a

part of his claim that the parties had addressed at the hearing,

namely, his claim that he was entitled to medical treatment for

his vertebra fracture.           The ALJ granted the motion and proceeded

to    consider       the    compensability       of     the    fracture.       The    ALJ

rejected an argument by Metro that the § 20(a) presumption did

not apply since the fracture was not specifically identified on

Claimant’s Form LS-203 that he had filed in March 2012.                           The ALJ

further      found    that    Claimant      established        a    prima   facie    case

linking      his     fracture    to   excessive         coughing       from,   and    the

steroids      he      was    prescribed      for,       his        work-related      COPD.

Regarding Metro’s attempt to rebut the prima facie case, the ALJ

concluded that the fact that Claimant, prior to the exposure,

had    had    respiratory        problems        and    took       steroids    did    not

constitute      evidence      that    the    primary      injury      did   not    cause,

aggravate, or hasten his fracture.                     Finding that Metro had not

rebutted the presumption that the fracture was compensable, the

ALJ awarded Claimant medical benefits for the fracture.

      Metro appealed the decisions concerning the compensability

of the COPD and fracture to the Board, which affirmed.                                 The

Board held that substantial evidence supported the ALJ’s finding

                                            10
that Claimant established a prima facie case regarding his COPD

and thus that the ALJ properly invoked the § 20(a) presumption.

The Board rejected an argument by Metro that Claimant needed to

present    medical    evidence      directly        linking     his   COPD    to    the

exposure to establish his prima facie case.                       The Board also

concluded that the ALJ properly found that Metro failed to rebut

the   presumption    on   the    basis       that    Dr.   Ripoll’s     opinion     was

equivocal.

      Regarding     the   vertebra      fracture,       the   Board     rejected     an

argument by Metro that the § 20(a) presumption does not apply to

“secondary    injuries,”     such      as    the    fracture.     The     Board    also

rejected    the   argument      that    the      presumption     should      not   have

applied because the fracture was outside the scope of Claimant’s

claim.     The Board noted that Claimant had raised the claim for

medical benefits regarding his fracture before both the district

director and the ALJ, and Metro had not contended that it was

surprised by the issue or that any late notice prejudiced its

ability to defend against the claim.

      Metro now petitions for review of the Board’s decision.

                                        III.

      Metro advances various arguments in support of its petition

for review.       We review the Board’s decisions for errors of law

and to determine whether the Board adhered to its standard of

review.    See Newport News Shipbuilding & Dry Dock Co. v. Harris,

                                            11
934 F.2d 548, 550 (4th Cir. 1991).                       The Board’s standard of

review requires that the ALJ’s findings of fact be considered

“conclusive if supported by substantial evidence in the record

considered as a whole.”                Newport News Shipbuilding & Dry Dock

Co. v. Director, OWCP, 131 F.3d 1079, 1080 (4th Cir. 1997) (per

curiam) (internal quotation marks omitted).                         And importantly,

the Act “must be liberally construed in conformance with its

[remedial] purpose.”          Northeast Marine Term. Co. v. Caputo, 432

U.S. 249, 268 (1977) (internal quotation marks omitted).

       In   this   appeal,       the    Director    of   the     Office       of    Workers’

Compensation        Programs       of     the      Department          of     Labor        (the

“Director”),       is   a   respondent.           We   afford     deference           to   the

Director’s views concerning the construction of the Act because

he has policy-making authority with regard to the Act.                                     See

Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 8

F.3d 175, 179 (4th Cir. 1993).                  When, as here, the Director is

advancing his position in litigation, his position is “entitled

to   respect   .    .   .   to    the    extent     that    it    has       the    power     to

persuade.”     West Virginia CWP Fund v. Stacy, 671 F.3d 378, 388

(4th    Cir.   2011)        (internal      quotation        marks       and       alteration

omitted).          We   accord     no     deference        to    the        Board’s    legal

interpretation of the Act since the Board does not serve in a

policy-making role.           See Newport News Shipbuilding & Dry Dock

Co. v. Stilley, 243 F.3d 179, 181 (4th Cir. 2001).

                                           12
                                             A.

       Regarding         Claimant’s    COPD,      Metro       contends      that   the    ALJ

erred in relying on Dr. Ripoll’s opinions to find that Claimant

had established a prima facie case.                          Metro argues that if Dr.

Ripoll’s        opinions    were    too     contradictory        to    rebut    Claimant’s

prima facie case, they must also have been too contradictory to

establish Claimant’s prima facie case in the first place.

       This issue is easily disposed of because the ALJ did not

rely       on   Dr.   Ripoll’s      opinions      as    a    basis    for   finding      that

Claimant established his prima facie case.                           The ALJ found that

“Claimant has demonstrated and [Metro] has agreed that a work

related         injury   occurred     February         18,    2008   when   Claimant      was

exposed to welding and epoxy fumes, leading to an aggravation of

his preexisting COPD.”              J.A. 203.          Indeed, substantial evidence

supported the ALJ’s finding that Claimant established a prima

facie case. 2         Claimant offered evidence that the day after the

exposure, he was diagnosed with “[e]xacerbation of [COPD]” and

hospitalized          for   eight    days    as    a    result.        S.J.A.      1.    The

evidence showed that his COPD continued to worsen after that


       2
       Metro argues that it did not agree that the exposure
aggravated his COPD but only stipulated that “Claimant injured
his pulmonary organs on February 18, 2008 at [Metro’s] place of
business.”   J.A. 191.   We need not address the effect of this
stipulation in light of our conclusion that substantial evidence
supported the ALJ’s finding that Claimant established a prima
facie case independent of any stipulation.


                                             13
point as well, and his lung function never returned to its pre-

exposure level.            This evidence was easily sufficient to satisfy

Claimant’s “fairly light burden,” Bis Salamis, Inc. v. Director,

OWCP, 819 F.3d 116, 127 (5th Cir. 2016), to produce evidence

raising       the    possibility          that        the    exposure       had     permanently

aggravated his COPD.                Cf. Moore, 126 F.3d at 262 (holding that

ALJ    properly       invoked        presumption            regarding       claim    for    back

problems when claimant testified that he experienced back pain

immediately after the accident even though other evidence cast

significant         doubt     on    the    credibility         of    that     testimony      and

claimant had acknowledged that he had suffered back pain as a

result of another prior injury); Champion v. S&M Traylor Bros.,

690 F.2d 285, 295 (D.C. Cir. 1982) (holding that because “claim

[wa]s supported by far more than enough evidence to remove it

from    the     category        of    ‘mere       fancy,’”          the     presumption      was

invoked).           And, regardless of Dr. Ripoll’s changing opinions

regarding whether he could say to a reasonable degree of medical

certainty that the exposure did permanently worsen Claimant’s

condition, he never opined that it was not possible that the

exposure had that effect.

       Metro also suggests that the ALJ improperly required Metro,

in    order    to     rebut    the    presumption,            to    actually      prove     by   a

preponderance         of      the    evidence          that    the        exposure    did    not

aggravate his lung condition.                     Again, Metro misstates what the

                                                 14
ALJ did.      The ALJ applied the proper standard, requiring Metro

to proffer evidence that could allow a reasonable factfinder to

infer     that    Claimant’s        lung     condition      was        not    permanently

aggravated by the exposure.                See Moore, 126 F.3d at 262-63.               And

the ALJ rightly concluded that Dr. Ripoll’s July 2012 opinion

that there was no permanent aggravation from the exposure could

not support such a reasonable inference since Dr. Ripoll had

abandoned that opinion.

      For   all     of   these   reasons,         we   conclude    that       substantial

evidence     supports      the   ALJ’s      order      awarding    Claimant       medical

benefits for his work-related COPD, and the Board was therefore

correct to affirm.

                                             B.

      Metro also argues that the Board erred in affirming the

ALJ’s     decision       granting     Claimant         medical    benefits       for    his

vertebra fracture.

                                             1.

      Some of Metro’s arguments regarding the fracture relate to

the   differences,        if   any,   between      how    the    Act    treats    primary

injuries – meaning compensable injuries that arise out of, and

occur in the course of, employment – and secondary injuries –

meaning     other    injuries       that    develop      later    as    the    result   of

primary injuries.         We will begin by addressing those arguments.



                                             15
       Metro does not deny that a secondary injury can qualify as

an “injury” within the meaning of 33 U.S.C. § 902(2), but Metro

maintains that because the fracture was a secondary injury, it

was compensable only if it “naturally or unavoidably result[ed]”

from   a   primary      injury.       Metro    also       argues    that       because    the

fracture      was   a     secondary     injury      and    was     not    identified       in

Claimant’s March 2012 claim form, the § 20(a) presumption should

not    have    applied       concerning       the     fracture’s          compensability

regardless of whether Claimant established a prima facie case.

       In questions of statutory interpretation, we begin with the

language of the statute.              See Dean v. United States, 556 U.S.

568,   572    (2009).        If   the    statutory         language       is    clear     and

unambiguous,        “we    are    duty    bound      to     give     effect       to     that

language.”      United States v. Ivester, 75 F.3d 182, 184 (4th Cir.

1996).

       As we have discussed, the Act defines “injury,” in relevant

part, as an

       accidental injury or death arising out of                         and in the
       course of employment, and such occupational                        disease or
       infection as arises naturally out of such                          employment
       or as naturally or unavoidably results                             from such
       accidental injury.

33 U.S.C. § 902(2).           There is no question that “the composition

of [§ 902(2)] is awkward.”               Cyr v. Crescent Wharf & Warehouse

Co., 211 F.2d 454, 456 (9th Cir. 1954).                    At the same time, it is

apparent – and Metro does not dispute – that Congress included

                                          16
in the definition of “injury” both “accidental injury . . .

arising    out    of   and   in   the   course    of    employment”     –    primary

injuries – and injuries that “naturally or unavoidably result[]

from such accidental injury” – secondary injuries.                      See, e.g.,

Jones v. Director, OWCP, 977 F.2d 1106, 1110-12 (7th Cir. 1992);

Cyr, 211 F.2d at 456.

                                          2.

     It is at this point in the analysis that the views of the

various participants in this appeal diverge.                        Metro contends

that because the vertebra fracture was not a primary injury, the

ALJ erred in applying the § 20(a) presumption in determining its

compensability.         Relying on two split-panel decisions of the

Fifth Circuit, Metro maintains that the presumption applies only

to questions of whether alleged primary injuries are compensable

and does not apply to questions of whether alleged secondary

injuries are compensable.          See Insurance Co. of State of Pa. v.

Director, OWCP, 713 F.3d 779, 784-86 (5th Cir. 2013); Amerada

Hess Corp. v. Director, OWCP, 543 F.3d 755, 761-63 (5th Cir.

2008).     Claimant and the Director argue that these two decisions

that Metro relies on were wrongly decided to the extent they

conclude     that      the   presumption       does     not   apply     to   claims

concerning secondary injuries.             And the Director notes that one

judge on each panel expressed disagreement with the majority’s

analysis.        See   Amerada    Hess,    543   F.3d    at   765   (Reavley,   J.,

                                          17
concurring) (concluding that the presumption should have applied

to the secondary injury if the claimant had established a prima

facie case, but concurring in the majority’s result because the

claimant failed to establish his prima facie case); see also

Insurance Co. of the State of Pa., 713 F.3d at 786 (Graves, J.,

concurring) (noting that although the panel was bound to follow

circuit   precedent,      he    agreed    with     Judge    Reavley    that    “the

Amerada   Hess    majority     erred     in    finding   that   the   presumption

created by § 20(a) of the [Act] is inapplicable to a ‘secondary’

injury or an injury not expressly listed on the original claim

form”).

     We   agree    with   the    Claimant       and   the   Director    that    the

presumption applies to claims regardless of whether they concern

secondary injuries.        By its terms, the § 20(a) presumption is

that the “claim comes within the provisions of th[e] Act.”                      33

U.S.C. § 920(a) (emphasis added).              As we have explained, the Act

allows claims regarding primary injuries, secondary injuries, or

both.     Section    20(a)      does     not    distinguish     between   claims

concerning   primary      injuries       and    those    concerning     secondary

injuries, and in fact § 20(a) makes no reference to injuries at




                                         18
all.         Accordingly,        we   agree        with   the    Director    that   the

presumption unambiguously applies to all types of claims. 3

       Metro contends that U.S. Industries supports its argument

that the presumption does not apply to secondary injuries, but

we   respectfully         disagree      with   Metro’s     understanding       of   that

decision.          In U.S. Industries, the claim at issue asserted that

the employee suffered an injury at work on November 19, 1975,

when he was lifting duct work and felt a sharp pain in his neck.

See 455 U.S. at 610, 612.                 The ALJ denied the claim, finding

that the alleged accident actually had not occurred and that the

employee and his co-worker had testified falsely regarding its

occurrence.          See id. at 610.               A divided panel of the Board

affirmed.          The Court of Appeals vacated, however, on the basis

that the employee could be found to have suffered an “injury”

when he awoke in pain the day after the alleged accident; the

Court of Appeals reasoned that an injury need not occur during

work       hours    and   need    not    be    traceable        to   a   specific   work

incident.          See id. at 611.       The Court of Appeals thus held that




       3
       Additionally, we know of no reason why Congress would have
put the initial burden on the claimant to produce evidence
actually proving the causation link and other elements in
secondary-injury cases while relieving claimants of that burden
in other cases. See Director, OWCP v. Greenwich Collieries, 512
U.S. 267, 280 (1994) (noting that purpose of the § 920(a)
presumption is “Congress’ recognition that claims such as those
involved here would be difficult to prove”).


                                              19
if    the   claimant      did   suffer    such     an    injury,     the   § 20(a)

presumption would apply to it.           See id. at 611-12.

      The Supreme Court granted certiorari and reversed, holding

that the Court of Appeals had committed two errors.                     The first

error concerned the scope of the employee’s claim.                      The Court

reasoned that the only claim the employee had made was that he

was injured at work on November 19 in an accident the ALJ found

had   not   actually      occurred.      See   id.      at   612.     Because    the

employee had not claimed that any injury occurred on November

20, there could be no presumption that applied to any November

20 injury.    See id. at 612-13.          The Court noted that despite the

existence    of    very    liberal     rules   allowing      the    amendments    of

pleadings    and    variances        between     pleading     and    proof,     such

variances cannot be so great that they prejudice an employer’s

ability to defend against a claim.             See id. at 613 n.7.            In the

case before the Court, the assertion of a November 20 injury was

not supported by the claim form the claimant had filed “or by

the evidentiary record.”         Id.

      The Court also reasoned that the Court of Appeals erred in

determining that the attack of pain claimant suffered on the

morning of November 20 could qualify as an “injury” within the

meaning of the Act.         See id. at 615.        That is so because for an

injury to have occurred “in the course of employment,” it “must

have arisen during the employment,” and thus a prima facie claim

                                         20
for    compensation      must      allege       an    injury      that   arose      while    the

claimant was working.              Id.     However, the only such injury that

the    claimant    had     asserted       in    his       claim   was    the      November    19

injury that the ALJ had found did not actually occur.                                 See id.

at 615-16.

       Metro argues that the attack of pain on the morning of

November 20 in U.S. Industries was in essence a secondary injury

and that that status as a secondary injury was the reason that

the Supreme Court did not apply the § 20(a) presumption.                                      We

conclude    this    is     a   misreading            of   U.S.    Industries.          As    the

Director explains, U.S. Industries does not suggest that the

§ 20(a)    presumption         does      not     apply      to    claims       of   secondary

injuries.       Rather, the case merely stands for two propositions:

(1) the presumption applies only to claims of injuries that are

actually made, (2) a claim must include a primary injury, which,

by definition, must arise during work.

       In the present case, because the ALJ properly found that

Claimant        suffered       a      compensable           primary        injury      –     the

exacerbation of his COPD – U.S. Industries poses no obstacle for

him so long as his claim included the fracture.                             Metro does not

appear to challenge the conclusions of the ALJ and the Board

that    Claimant’s       claim     evolved       to       include    the    fracture        even

though    the    claim     form    he     originally         filed    in    2012     had    only

explicitly      mentioned       his      lung    injury.          And,     U.S.     Industries

                                                21
specifically recognized that those making claims under the Act

need not even make claims on claim forms and that “an informal

substitute       .    .     .    may   be    acceptable        if    it     identifies    the

claimant, indicates that a compensable injury has occurred, and

conveys the idea that compensation is expected.”                            Id. at 613 n.7

(internal quotation marks and alterations omitted).                               The Court

also recognized that “considerable liberality is usually shown

in allowing amendment of pleadings” and in allowing “variance

between    pleading         and     proof,”        so   long   as     the    amendment     or

variance is not so significant that the defendant’s ability to

defend itself is prejudiced.                  Id. (internal quotation marks and

alterations       omitted).            On    these      facts,      the   ALJ    and     Board

properly treated Claimant’s claim to include the fracture.                                  As

the Board determined, Metro was not prejudiced by Claimant’s

failure to identify the fracture as part of his claimed injuries

on his original claim form.                   Even if Metro had not previously

been     aware       that       Claimant     sought     medical      benefits      for    the

fracture, at the informal conference on May 15, 2012 – 16 months

before    the    ALJ      hearing      –    the    Claimant    expressly        sought    such

benefits, as he did before the ALJ.                     The ALJ therefore correctly

treated Claimant’s claim as including the fracture and rightly

concluded that the § 20 presumption would apply regarding the




                                                  22
compensability of the fracture if Claimant established a prima

facie case. 4

                                   3.

     Metro   alternatively    argues    that,   even   assuming   that    the

§ 20(a) presumption can apply to secondary injuries, the ALJ

erred by treating the fracture claim as if it were a primary-

injury   claim   and   thus   failed    to   apply     the   “naturally   or

unavoidably results” standard.         In this regard, we will discuss

Claimant’s attempt to establish his prima facie case separately

from Metro’s attempt to rebut the presumption.

                                   a.

     The ALJ noted that:

     [Metro argued that because] the T7 fracture was not
     included on the initial claim form, [the § 20(a)
     presumption   does  not   apply  and]   Claimant  must
     demonstrate that the fracture naturally or unavoidably
     arose from the original lung injury.       In support,
     [Metro] cited two Fifth Circuit cases.    This case is

     4 The Fifth Circuit’s decisions in Insurance Company of the
State of Pennsylvania and Amerada Hess holding that the § 20(a)
presumption was not properly applied to the secondary injures
seem to be primarily based on the courts’ conclusions that the
claims before them did not include the secondary injuries at
issue, see Amerada Hess Corp. v. Director, OWCP, 543 F.3d 755,
761-62 (5th Cir. 2008); Insurance Co. of State of Pa. v.
Director, OWCP, 713 F.3d 779, 785 (5th Cir. 2013), a
circumstance that would distinguish the present case.      To the
extent that the Fifth Circuit decisions may also suggest that
even a secondary injury that was included in the claimant’s
claim could not receive the benefit of the § 20(a) presumption,
their reasons for adopting that position are simply not clear.




                                   23
        governed by the law of the . . . Fourth Circuit[,
        which] has not articulated such a standard.

J.A. 215 n.1.         The ALJ found that Claimant established his prima

facie case by producing evidence that “the workplace exposure

accident      could    have     caused,    aggravated,        or    accelerated        the

[fracture].”          J.A.    214.      Other   than    in    his        description    of

Metro’s argument, the ALJ made no reference to the “naturally or

unavoidably results” standard in his analysis.                      We therefore are

inclined to agree with Metro that the ALJ erred in failing to

recognize that the “naturally or unavoidably results” standard

applied.

       Because     that      standard     applied,      the        ALJ     should   have

recognized that the compensability of the fracture depended on

the   fracture     (or    its   aggravation     or     hastening)          naturally    or

unavoidably resulting from the primary injury.                            Consequently,

for Claimant to establish his prima facie case, the ALJ should

have required him to produce evidence that the primary injury

could      have   naturally     or    unavoidably      caused,       aggravated,        or

accelerated the fracture.             Nevertheless, on the particular facts

of    this   case,    the     ALJ’s   failure   to     consider          naturalness    or

avoidability made no difference. 5



       5We note that the primary injury was part of the causal
chain linking the exposure to the secondary injury, so the fact
that the ALJ considered whether Claimant produced evidence of
whether   the  exposure  could  have   caused,  aggravated,  or
(Continued)
                                          24
      The     ALJ    reasoned     that     Claimant        demonstrated          that   the

exposure permanently aggravated his COPD and that “features of

the   COPD,    namely      steroid   treatment           and    excessive       coughing,”

could   have    caused,      aggravated,        or   accelerated         the     fracture.

J.A. 214.      Considering the exacerbation of Claimant’s COPD – and

resulting hospitalization – following the exposure, substantial

evidence supported the ALJ’s finding.

      Because       the   fracture   was    not      a   primary       injury,    the   ALJ

should have gone the next step and considered whether Claimant

produced      evidence     that   the    fracture         (or    its    aggravation      or

hastening) could have naturally or unavoidably resulted from the

primary injury, but this extra step would have posed no hurdle

for   Claimant       on   these   facts.          Regardless       of     any     possible

argument concerning whether the fracture or its aggravation or

hastening naturally resulted, “naturally or unavoidably results”

is a disjunctive requirement.              See Jones v. Director, OWCP, 977

F.2d 1106, 1111 (7th Cir. 1992).                Thus, Claimant could establish

his prima facie case simply by showing that the fracture or its

aggravation or hastening could have unavoidably resulted from




accelerated the fracture instead of whether the primary injury
could have caused, aggravated or accelerated the fracture is of
no moment.     And Metro makes no complaint regarding this
distinction.



                                           25
the exacerbation of his COPD. 6              But Metro has never suggested any

way    that      Claimant       could    have    avoided   any   effect     that    the

exacerbation of his COPD had on his fracture.                    Accordingly, were

we to remand for reconsideration in light of the “naturally or

unavoidably results” standard, the ALJ would certainly conclude,

for the same reasons that he found Claimant proved that the

fracture or its aggravation or hastening could have resulted,

that       it   also    could   have    unavoidably    resulted.       We   will    not

engage in such a futile exercise.                   See George Hyman Constr. Co.

v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).

                                            b.

       Metro also maintains that even if the ALJ correctly invoked

the    § 20(a)         presumption      regarding    the   fracture,    substantial

evidence did not support the ALJ’s finding that Metro failed to

rebut the presumption.             We disagree.       Again, the ALJ, apparently

not recognizing that he should be applying the “naturally or

unavoidably        results”      standard,      considered   only   whether        Metro

offered evidence sufficient to support a reasonable inference

that the fracture was not caused, aggravated, or accelerated by

the exposure.




       6
       We offer no opinion regarding whether the “naturally”
prong would have posed any obstacle to Claimant on these facts.
See Jones v. Director, OWCP, 977 F.2d 1106, 1110-14 (7th Cir.
1992) (discussing “naturally or unavoidably results” standard).


                                            26
       Metro    argues      that    the     ALJ    erred    in   concluding    that   the

evidence that Claimant used steroids for 22 years prior to the

exposure was not sufficient to support a reasonable inference

that the fracture would have occurred regardless of whether the

exposure occurred.          We agree with the ALJ, though, that any such

inference would not be reasonable, but instead would be based on

mere   speculation.           There    is    no     evidence     whatsoever    that   any

medical professional believed that the aggravation of Claimant’s

lung   condition,       his    increased          steroid   use,    or   his   increased

cough did not hasten, aggravate, or cause the fracture.                                At

best, Metro produced evidence that gave rise to a reasonable

inference      that    it     was     possible       that    the    fracture    was   not

hastened, aggravated, or caused by the exposure.                          That was not

enough to rebut the presumption.

       And     for    the   same      reasons       that    we    discussed    regarding

Claimant’s establishment of his prima facie case, no purpose

would be served by vacating and remanding for application of the

“naturally or unavoidably results” standard as it pertains to

Metro’s attempt to rebut the presumption.                        Because Metro has not

suggested any way that Claimant could have avoided the fracture

(or its hastening or aggravation) once the exposure occurred,

the ALJ would certainly find again on remand that Metro did not

rebut the presumption.



                                             27
                              IV.

     In sum, because we conclude that the only error the ALJ

committed was in failing to apply the “naturally or unavoidably

results” standard to the fracture claim and because remand for

application of that standard would be a futile exercise, given

that there was no issue presented regarding avoidability, we

deny Metro’s petition for review of the Board’s order affirming

the ALJ’s decision.

                                                PETITION DENIED




                              28
