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

brief for petitioners.

G. William Higbee, with

__________________

whom

McTeague, Higbee, MacAdam, Ca

_______________________________

Watson & Cohen was on brief, for claimant, Lawrence J. Shorette.

______________

____________________

March 21, 1997

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

Bath

Iron Works Corporation

("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.

which

creates

condition is

U.S.C.

presumption

causally

920(a).

The

that

related to

901 et seq.,
_______

claimant's

his employment.

Board agreed with

medical

See
___

the administrative

law judge that BIW had failed to rebut this presumption.

disagrees,

arguing

tending to show

by his

that

that

it

adduced

BIW

substantial

that Shorette's lung disease

employment at the Bath shipyard.

presented

no

evidence

33

BIW

evidence

was not caused

Shorette1 counters

casting

doubt

on

the

possibility

that

his

work

at

BIW

had,

at

minimum,

aggravated his health problems.

I.

Shorette

shipyard

in

began working

Bath, Maine,

and

in

as

a cleaner

1981.

bagging

His

waste

at the

BIW

responsibilities

included

collecting

asbestos

during

"asbestos

ripouts," and he was exposed to asbestos dust on a

____________________

1.

The

named respondent

Workers'
Department

Compensation
of

Labor,

is the

Director of the

Programs
see
___

of

the

Office of

United

States

Ingalls Shipbuilding, Inc.

____________________________

Director, Office of Workers' Compensation Programs,

____________________________________________________
Ct.

796, 807

(1997),

but Shorette

is

interest and is represented by counsel.

-2-

the real

v.

117 S.

party

in

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

decontamination

process

after

every

decontamination

process

itself caused

to

asbestos

undergo

ripout, the

unprotected asbestos

exposure when fellow workers,

the area.

shipyard

covered with asbestos, entered

There were times while Shorette was working at the

when he

had come

into contact with

fine airborne

dust

of unknown origin that might have been asbestos.

were

other incidents as

respirator hose

his

well.

was disconnected

mask filled

one occasion, Shorette's

for about ten

with asbestos dust.

Shorette was working without

that

On

There

On

minutes and

another occasion,

protective equipment in an area

supposedly contained no asbestos.

It later turned out

that there had been asbestos in the area.

In

late

1981,

Shorette

monitoring

through

BIW's

Shorette's

initial

x-rays from

began

asbestos

late

periodic

surveillance

1981

medical

program.

and early

1982

revealed lung problems -- interstitial fibrotic changes which

could have

been caused

by asbestos

doctors recommended that Shorette no

exposure.

The program

longer perform asbestos

clean-ups, and from that time on his work has been limited to

general

cleaning.

In

deterioration of Shorette's

1989,

x-rays

lung condition.

-33

showed

further

BIW Industrial

Health

Department

suggestive

1989

records

noted

of asbestosis" in

"interstitial

fibrosis

1987, "probable asbestosis" in

and "probable asbestosis with an ILO rating of 3/3"2 in

1991.

In

against

was

held

March

1990,

Shorette asserted

BIW for medical benefits for

before

an ALJ

in

LHWCA claim

asbestosis.

October 1992.

statutory presumption in favor of

To

A hearing

rebut the

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.

to

1959 and

exposed

he

Shorette had been in the

agreed it

to asbestos

was

possible that

during that period.

Navy from 1955

he had

However,

been

BIW was

unable, upon

questioning Shorette, to identify

instances of exposure.

to

asbestos

while

any specific

Shorette also might have been exposed

working

at

Times Fibre

between 1966 and 1978, but again BIW's

Communications

questioning could not

identify any specific incidents.

BIW

experts

exposure

also

indicating

to

produced

that

asbestos in

medical

it was

1981 at

testimony

unlikely

BIW

that

had caused

from

two

Shorette's

the lung

damage that was evident in x-rays from 1981 and 1982 because,

____________________

2.

This

unfavorable

classification
reflects the
the lung.

scheme
size and

rating
for

is

based

on a

occupational lung

extensiveness of the

well-accepted
disease,

and

obstructions on

-44

among

other reasons,

1982, Shorette

practitioner,

infection

had

who

not enough

visited

time had

Dr.

diagnosed him

John

as

passed.

Kanwit,

having

In May

family

an acute

(probably bronchitis) and chronic asbestosis.

lung

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

or less before the patient presented with

have been the cause of his problem."

a year

his symptoms would

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

pulmonary

was

disease

different occasions

took

cause.

from

who

saw

during the summer

findings

Shorette with

cigarette smoking

evidence

specialist,

medical history

abnormal x-ray

diagnosed

also

of the

1981

from 1981

and

Dr.

Harder,

Shorette

of 1991.

exposures and

1982.

two

Dr. Harder

Dr.

obstructive lung disease

and interstitial

on

lung disease of

of the

Harder

caused by

unknown

He testified that interstitial changes have an eight

to

twenty year latency period,

changes shown on

caused

of

the 1981

by exposure in 1981.

pleural plaques

asbestosis,

because

on the

with

and so he

did not think the

and 1982 x-rays

could have

been

He also noted that the absence

x-rays was

asbestos

-55

counterindicative of

related

lung

disease,

pleural plaques tend

the interstitial

to (but do

lung changes

not always) develop

become apparent.

before

Dr. Harder

indicated that exposure to asbestos was one possible cause of

Shorette'slungdisease butthathe couldnotrule outother causes.

The

statutory

ALJ

found

presumption of

that

BIW

causal

had

not

rebutted

relationship between

claimant's employment and his medical condition.

that

"no basis has

been presented

the

He reasoned

for concluding

that the

progression of the disease noted on the 1989 x-ray film . . .

was

not related to the

Brown
_____

exposures." Relying on

v. Jacksonville Shipyards, Inc., 893

______________________________

(11th Cir.

offered

1981 or 1982

by

1990), the

ALJ found

the employer

did

that the

F.2d 294,

297

medical evidence

not completely

rule

out the

possibility

related to

that

the

claimant's

the employment.

condition

The ALJ therefore

was

causally

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

affirmed,

"sufficient

expenses.

stating

to rebut

that

BIW

The

Benefits

had

not

the presumed

progression of

the claimant's lung

1989 x-ray and

his exposures to

employer in 1981 and 1982."

submitted

causal link

Board

evidence

between the

disease as noted

on his

asbestos while working

This appeal ensued.

II.

Review

for

-66

Our

plenary; our

review of

legal conclusions

review of its factual

"In reviewing for substantial

by the

Board is

findings is deferential.

evidence it is immaterial that

the facts permit diverse inferences as long as those drawn by

the ALJ

Office of

are supported

by evidence."

Sprague
_______

Workers' Compensation Programs, 688

v. Director,
_________

F.2d 862, 866

_________________________________________

(1st Cir. 1982).

There is no

prima

facie

case

question that

and thus

is

presumption that his injury

course

of his

Shorette established

entitled

to

the statutory

or harm arose out of

employment.

See 33
___

U.S.C.

and in the

920(a).

The

burden was thus on the employer to rebut the presumption with

substantial

evidence that

aggravated by his

substantial

the condition

employment.

evidence

BIW argues

showing

to

probability that Shorette's condition

employment,

and therefore

presumption.

high

burden

that

It argues that

on

the

medical

was not related to his

it rebutted

to

caused or

that it submitted

reasonable

the ALJ and

employer

was not

the

statutory

Board imposed too

rebut

the

statutory

presumption.

BIW argues

decision

in

evidence

sufficient

that the Board erroneously

Sprague.
_______

condition shown in

1981 exposures.

It

to

contends

rebut

the 1981

the

that

presumption

and 1982 x-rays

If that were what the Board

-77

it

applied our

did present

that

was caused

the

by

had decided in

this case, we

need not

would agree

rule out

with the insurer.

any possible causal

the claimant's employment

The

employer

relationship between

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

evidence

the

exposures.

-- indeed it did

1989 condition was not

exposure

either

disease.

at BIW.

The

BIW did

not present any

evidence -- that

at least aggravated

employer is

caused the disease

not present substantial

or caused

liable if

by the 1981

the exposure

an aggravation

of the

The employer having failed to meet its evidentiary

burden, the decision of the Board is affirmed.

________

-88