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),

breath.

Office

Suit

had to quit work because

is brought

on

his behalf

of shortness of

by the

Director,

of Workers' Compensation Programs, U.S. Department of

Labor, under the Longshore

and Harbor Workers'

Compensation

Act

901

work-related

(LHWCA), 33

U.S.C.

disability due to "Asbestosis

undisputed that Harford

that his smoking

from

did not work

developed lung

It

a contributor to

for

cancer, and

It

is

further

cigarettes a day

for 32

is also undisputed that, though

with asbestos, he

neighboring workplaces.

exposure as

seq.,
____

and related diseases."

two plus packs of

years was a basic cause.

he

et
__

was exposed to

He seeks

to

the dust

bring in

his cancer in order

this

to charge

the employer and its insurer.

Trial

was

had

before

ALJ

on

letters

of medical

stated that

the asbestos did not have to be the "sole cause"

cancer for claimant

In his decision,

and

depositions

of the

experts.

an

to recover.

disability would be compensable

Rather,

if the asbestos

to, combined with, or aggravated it.1

the ALJ

the entire

contributed

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."
this conception.

The parties share

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

question was whether there was a "causal relationship between

Claimant's employment and his lung cancer."

however,

was

presumption

presumes,

whether

the employer

in claimant's favor.

"in the

absence of

had

The first issue,

met

Title 33

substantial

the statutory

U.S.C.

920(a)

evidence to

the

contrary-- (a) That

the claim comes within the provisions of

[the

extensive review

Act]."

evidence,

After

the ALJ found

and discussion

that the presumption

of the

was rebutted,

which

caused

O.W.C.P., 688
________

evidence

causal

it

to

F.2d 862, 865

without

the

relationship

cancer.

It

"fall".

See
___

Sprague
_______

(1st Cir. 1982).

presumption, he

found

between claimant's

by

the employer.

Director,
_________

Weighing the

there

employment

is to be stressed that this was

proof by the claimant, but by belief of

submitted

v.

was no

and his

not for lack of

affirmative evidence

Claimant did

contract asbestosis, and asbestos without

not,

he found,

asbestosis did not

cause or contribute to the cancer.

The

finding that

Benefits

Review

the presumption

Board

reversed

in claimant's

rebutted, thereby ending the defense.

the

favor had

We reverse.

Decision of the Benefits Review Board

ALJ's

been

_____________________________________

With

stated,

reference

to

the

presumption,

the

Board

"[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).

specific and

comprehensive evidence sufficient to

sever the

causal connection between the injury and the employment."

It

added,

no

"The unequivocal

relationship

exists

testimony of

presumption."

This

"unequivocally

severs."

is

positive

language

"Unequivocal,"

which we take to mean certainty.

inescapably

confirmed

by

Dr.

Cadman,

in the

to

it

on

rebut

the

recast

as

search

of

doubtful," or the like,

That the Board so intended

its

response

expert, Dr. Cadman's unwillingness to be

Because

physician that

sufficient

dictionaries, universally means "not

is

Board's

to

employer's

absolutely certain.

words,

conceded that

"asbestos

may have contributed to claimant's lung cancer and

that

could

he

not

exclude

that

exposure

as

having

contributed"

to

it,

the

Board

thought

his

testimony

insufficient to rebut the presumption.

As

we

have previously

held,

overcome with

substantial

Sprague,
_______

688

F.2d at

relevant

evidence as

adequate

to

a conclusion."

support

citation omitted).

evidence of

865.

presumption is

non-causation.

Substantial evidence

reasonable

This

the

mind

might

See
___

is "such

accept

as

Id.
___

(quotations and

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.

7,

200

N.E.2d

1997); Oberlander's Case, 348 Mass. 1,

_________________

268 (1964)

(Workmen's

Compensation).

Dr.

Cadman's medical opinion was found insufficient by the Board,

however,

because he

could not

typical expert opinion.

exclude

possibilities --

This put an impossible burden on the

employer.

We

have,

therefore,

two

questions.

Did

the

employer submit substantial evidence,

(A

question

credibility.

Legrow, 935
______

time,

we

of

law

See
___

for

the

when properly defined?

court,

not

dependent

on

Sprague, 688 F.2d at 865; CNA Ins. Co. v.

_______
_____________

F.2d 430, 433-34 (1st Cir.

may ask

whether

substantive findings.

the

ALJ

1991)).

At the same

was warranted

In this connection we

in

his

note 33 U.S.C.

921(b)(3),

The findings of fact in the decision

under

review

conclusive
evidence

by

if
in the

the

Board

supported

shall

be

by substantial

record considered

as a

whole.

This means, obviously, that the ALJ's choice of inferences is

to be respected.

for

See Sprague, 688 F.2d at 866 ("In reviewing

___ _______

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

__________________

discussion

experts

The ALJ's

conclusions are

of the

several experts.

testified

that current

backed by

One

medical

an extensive

or more

of BIW's

evidence indicates

that a finding of interstitial fibrosis is necessary to reach

a diagnosis of

samples

asbestosis.

There was testimony

and x-ray analyses produced no evidence that Harford

had asbestosis; that he did not have fibrosis

his surgery, and

some

that tissue

at the time of

that the alveolar damage found

months later was

caused by radiation

in a biopsy

and chemotherapy

rather than by asbestos exposure.

Two experts

testified on causation of

the cancer.

Dr. Cadman's conclusion was,

[C]urrent

evidence

association

of

asbestos

evaluating

the

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
arose unrelated
as

occurs in

smoking alone or

to any
the

believe that in

it

known carcinogen

non-smoker. . . .

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,

determine that the employer/carriers have

produced

specific

evidence

and

soundly

opinions sufficient
nexus

and

objective

have

clinical

reasoned

to sever
thereby

medical

the causal

rebutted

the

Section 20 presumption.

Since

the

ALJ

had

contribution, we find

both in this

finding.

stated

earlier

that the ALJ was

that

cause

included

warrantably covering

Dr. Cadman reasonably

could be found

as of

the opinion

that diffuse

interstitial fibrosis

(and

therefore

asbestosis)

exposure is a

probability

asbestosis.

is

generally present

when

contributing cause to lung cancer.

is

against

In other

asbestos,

words, asbestos

in

the

asbestos

Viz., the

absence

exposure had

of

had no

belated, contributory, effect, as well as no original effect.

We believe, following Dr. Cadman's reference to "excess" lung

cancer, particularly

covering

the

period

biopsy, that his

sufficient

between

had been

surgery

last quoted sentence

limiting his opinion

Cadman's opinion

when there

and

the

subsequent

is not to be

to the original cancer.

is substantial

both to

negative evidence

evidence of

rebut the presumption

read as

In short, Dr.

non-causation,

and to

support a

Harford's claim

was filed

finding for BIW.

Next?
_____

First, an

on March

observation.

20, 1989, just short of nine

unfavorable decision

on the

merits was

years ago.

filed

The ALJ's

on June

10,

1991; the Board's remand for a hearing on damages on November

23,

1993.

finding was

automatically

BIW's petition

filed July 7,

under

the

for review

1994.

of the

ALJ's damage

This finding

was affirmed

statute,

Rescissions and Appropriations Act of

134,

the

101(d), 110 Stat.

Board's

not

September 12, 1996.

having

Omnibus

1996, Pub. L. No. 104-

1321, 1321-219 (1996),

passed

on

We believe the time

Consolidated

the

because of

petition

before

has come to resolve

matters.

ALJ's

If

we remand the case

decision

on the

to the Board to

merits,

it

will

be bound

findings in the absence of error. See 33 U.S.C.

___

Why

the unnecessary

should take over

steps?

finally now.

The

short answer

And, indeed,

supports the

causal relationship.

ALJ's conclusion

that

by

his

921(b)(3).

is that

we

we have already

reviewed the ALJ's detailed and careful opinion.

evidence

review the

Substantial

there was

no

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 -

LYNCH, Circuit Judge, dissenting.

LYNCH, Circuit Judge, dissenting.
______________

this

case sets

Board's finding

forth substantial

evidence

that the employer, which had

The

record in

to support

the

rebutted the

920(a) presumption

lung

cancer, did

that asbestos exposure

not

rebut the

asbestos exposure contributed

___________

caused claimant's
______

920(a)

presumption that

to claimant's lung cancer.

would affirm the Board.

The

causation

employer's

with

testimony of

one

evidence

exception.

its lead expert,

support claimant

on the

all

That

went

to

exception

Dr. Cadman, and it

contribution issue.

In

initial

was

the

tended to

testimony

introduced at the hearing, Dr. Cadman was invited and refused

to

testify

that

probability that

cancer.

with

he

could

asbestos had

Rather, Dr. Cadman

occupational

say

exposure

to

reasonable

not contributed
___________

medical

to Harford's

testified that 10-15% of people

to

asbestos who

develop

lung

cancer

do

not

specifically

asbestos could

asbestos

experience

stated

(after

fibrosis

have contributed

in

direct

to

the

question

lungs.

He

on whether

Harford's cancer)

that

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,

case

law, between employment-related

primary

cause of a

injuries that

disability and those

acknowledged in our

are the

which aggravate or

contribute

to

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

_____________________
__________________

53, 55 (1st Cir. 1997).

small

contribution

claimant's disability

under the

Hensley v.
_______

F.3d

Under the "aggravation rule," even a

by

work-related

condition

to

the

is sufficient to trigger full recovery

LHWCA; primary causation

need not be shown.

See
___

Washington Metro. Area Transit Auth., 655

______________________________________

F.2d

264, 268 (D.C. Cir. 1981).

The aggravation rule embodies the

essentially humanitarian purposes

that

claimant

injury is not

Here,

is

the sole cause

Dr. Cadman

caused fibrosis

is not

that

Harford's

cancer.

presumption that

where

employment-related

the

BIW

exposure did

therefore

disability.

absence of

sufficient evidence

asbestos

It assures

of the claimant's

testified that

conclusion

lung cancer.

compensated

of the LHWCA.

to support

not

did

contribute

not

asbestos exposure contributed

The absence of fibrosis proves

asbestos-

rebut

the

to

the

to Harford's

nothing on the

contribution issue.

The ALJ erroneously conflated the primary causation

and

contribution

analyses

and

incorrectly concluded

that

where

there

was

no

primary

contribution, either.

separately,

there

The Board, performing these

recognized

testimony as to

causation

the

significance

contribution.

Because Dr.

of

Dr.

was

no

analyses

Cadman's

Cadman expressly

10

stated that asbestos

exposure could have contributed

to the

cancer

in the

reversed.

the

absence

of

fibrosis,

the

Board

correctly

In light of the purposes of the Act, manifested by

920(a)

presumption,

questions should

and

be decided in

Bath Iron Works Corp. v. White,

______________________
_____

1978), I respectfully dissent.

the

precedent

favor of

that

the claimant,

close

see
___

584 F.2d 569, 574 (1st Cir.

11