BRB No. 97-0668
LOUIS LIZOTTE )
)
Claimant-Petitioner ) DATE ISSUED: 02/10/1998
)
v. )
)
GENERAL DYNAMICS/ELECTRIC BOAT )
CORPORATION )
)
and )
)
INSURANCE COMPANY OF )
NORTH AMERICA (CIGNA) )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order On Remand of Sheldon R. Lipson,
Administrative Law Judge, United States Department of Labor.
Carolyn P. Kelly (O'Brien, Shafner, Stuart, Kelly & Morris, P.C.),
Groton, Connecticut, for claimant.
Lucas D. Strunk (Pomeranz, Drayton & Stabnick, LLC), Glastonbury,
Connecticut, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, BROWN and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order On Remand (88-LHC-0441) of
Administrative Law Judge Sheldon R. Lipson rendered on a claim filed pursuant to
the provisions of the Longshore and Harbor Workers' Compensation Act, as amended,
33 U.S.C. §901 et seq. (the Act). We must affirm the findings of fact
and conclusions of law of the administrative law judge which are rational,
supported by substantial evidence, and in accordance with law. O'Keeffe v.
Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).
This case has been before the Board previously. Claimant worked for employer
from 1951 until 1966 as a chipper/burner. Subsequently, claimant worked for non-maritime employers as an ironworker until his retirement for health reasons on June
1, 1986. He filed his present claim on September 5, 1985, seeking permanent total
disability and medical benefits for breathing problems arising out of occupational
exposure to lung irritants during the course of his employment with employer.
In his initial Decision and Order, the administrative law judge found that
while claimant's industrial bronchitis was causally related to his employment with
employer, claimant failed to establish that he had been exposed to asbestos while
working for employer. The administrative law judge further found that while
claimant's chronic bronchitis was a factor in his decision to stop working, the
claim for industrial bronchitis was untimely filed pursuant to Section 13(b)(2) of
the Act, 33 U.S.C. §913(b)(2)(1994). Accordingly, he denied compensation,
but awarded medical benefits for the treatment of claimant's industrial bronchitis.
Claimant appealed the decision to the Board, arguing that the administrative law
judge erred in finding his claim time-barred and in concluding that claimant was
not entitled to the benefit of the Section 20(a), 33 U.S.C. §920(a),
presumption linking his asbestosis to his employment with employer.
Noting that under Section 13(b)(2) the two year limitation period for filing
a claim does not begin to run until claimant is aware or should have been aware of
the relationship between his employment, disease, and disability, the Board held
that the administrative law judge erred in determining that the claim was untimely
because it was not filed within two years of a November 10, 1964, letter from Dr.
Wade informing claimant of the relationship between his chronic bronchitis and his
work with employer. Accordingly, the Board vacated this determination and
remanded the case for the administrative law judge to determine when claimant
became aware that his industrial bronchitis had an impact on his capacity to earn
wages. The Board also found that the administrative law judge erred in finding
that claimant failed to establish the working conditions element of his prima
facie case with regard to the asbestosis claim because of his failure to
introduce any documentary evidence, as such was not required, and remanded the case
for the administrative law judge to reconsider this issue in light of claimant's
testimony and notations in claimant's medical records which suggested that he
received exposure to asbestos while working for employer. In remanding the case,
the Board held that on remand, the administrative law judge must address all of the
evidence regarding the existence of working conditions which could have caused
claimant's asbestosis. Lizotte v. General Dynamics Corp., BRB No. 91-1082
(June 27, 1996) (unpublished).
On remand, the administrative law judge reversed his previous finding that the
claim for chemical-induced chronic bronchitis was untimely, but denied the claim
for permanent total disability benefits based on this disease, based on the fact
that none of the doctors rated claimant's impairment as totally disabling. With
respect to the evidence regarding the existence of working conditions and
claimant's exposure to asbestos, the administrative law judge reinstated his prior
determination that claimant failed to meet his burden of establishing exposure to
asbestos while employed with employer.
In the present appeal, claimant argues that in determining the extent of his
disability due to chronic bronchitis, the administrative law judge erred by failing
to apply the burden-shifting analysis mandated by the United States Court of
Appeals for the Second Circuit in Palombo v. Director, OWCP, 937 F.2d 70,
25 BRBS 1 (CRT) (2d Cir. 1991). Claimant maintains that inasmuch as there is no
evidence that he could continue to perform his usual work as an ironworker and
employer failed to introduce evidence of suitable alternate employment, there is
no need to remand the case for the administrative law judge to evaluate the
evidence under this standard, and urges the Board to enter an award of permanent
total disability compensation. In the alternative, claimant avers that the
administrative law judge should have awarded him permanent partial disability
benefits based on the extent of his permanent physical impairment under Section
8(c)(23), 33 U.S.C.§908(c)(23)(1994). Claimant further maintains that in
finding that there is no evidence in the record sufficient to support a finding
that claimant was exposed to asbestos during the course of employment with
employer, the administrative law judge ignored relevant testimony provided by Drs.
Godar and Cherniak.[1] Employer responds, urging
affirmance.
Inasmuch as the administrative law judge failed to analyze the extent of
claimant's disability consistent with the controlling legal standard set forth in
Palombo, we are unable to affirm his denial of the claim for permanent total
disability benefits. In denying the claimed compensation, the administrative law
judge stated that Dr. Beckett only found mild respiratory impairment, and Dr.
Godar, merely "a low grade chronic bronchitis, which appears exacerbated by
exposure to irritants" resulting in a 20 percent anatomical impairment. In
addition, he relied upon Dr. Cherniak, finding he was a highly credentialed
practitioner of internal and occupational medicine, who opined that claimant was
not totally disabled from a respiratory standpoint.
It is well established that medical impairment ratings are not determinative
of total disability under the Act, as disability is an economic rather than a
medical concept. See American Stevedore, Inc. v. Salzano, 538 F.2d 933, 4
BRBS 195 (2d Cir. 1976); 33 U.S.C. §902(10). In Palombo, the United
States Courts of Appeals for the Second Circuit followed Salzano and
reiterated the burden-shifting scheme applied in determining disability in cases
under the Act, whereby claimant establishes a prima facie case of total
disability by proving that he is unable to return to his usual job because of his
work injury. Once claimant meets this burden, the burden shifts to employer to
demonstrate the availability of other jobs claimant can realistically secure and
perform given his age, education, physical restrictions and vocational history.
Id.; see also New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
14 BRBS 156 (5th Cir. 1981); Chong v. Todd Pacific Shipyards Corp., 22 BRBS
242 (1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th
Cir. 1990). Claimant thereafter can rebut employer's showing of the availability
of suitable alternate employment and retain eligibility for total disability
benefits, if he shows he diligently pursued alternate employment opportunities
but was unable to secure a position. Palombo, 937 F.2d at 73, 25 BRBS at
7 (CRT); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21
BRBS 10 (CRT) (4th Cir. 1988); Roger's Terminal & Shipping Corp. v. Director,
OWCP, 784 F.2d 687, 18 BRBS 79 (CRT) (5th Cir.), cert. denied, 479 U.S.
826 (1986). Thus, in this case, the administrative law judge's decision must be
vacated because it is based solely on medical ratings, and the administrative law
judge failed to consider record evidence relevant to claimant's ability to perform
his prior work.
Initially, the administrative law judge credited evidence in his first
decision that claimant left work due to his lung disease, which was exacerbated by
irritants in his work environment. Decision and Order at 11. Claimant testified
that between 1966 and 1986, while he worked as an iron worker, he continued to have
symptoms such as coughing up blood, dizzy spells and headaches, but that he still
managed to work, especially as most of the work was outside. He further stated,
however, that after 1985 his problems became more severe, so that he could no
longer tolerate working even outside, especially in humid or rainy weather, and
that airplane fumes and even traffic exhaust fumes during his commute made him ill.
Tr. at 31, 33. In addition, Dr. Cherniack deposed that claimant should avoid dust
and fumes and hot working environments and that it would have been a good idea to
get claimant off the boats and out of production, and into an office, warehouse or
tool crib job. Dr. Cherniack Depo. at 44, 49. Dr. Beckett reported in November
1985 that claimant's main problem is the inability to tolerate breathing inhaled
substances at levels which are not irritating to others with normal lung function.
CX 1. Dr. Godar deposed that he assumed that claimant's breathing problems led him
to retire. Godar Depo. at 12. Inasmuch as the administrative law judge failed to
evaluate the aforementioned evidence to determine whether claimant met his initial
burden of establishing that he is unable to return to his usual work because of his
injury, we vacate his denial of the claim for permanent total disability
compensation and remand for him to reconsider the extent of claimant's disability
under the burden-shifting scheme set forth in Palombo.
We reject claimant's contention, however, that if he is not totally disabled,
at the very least, he is entitled to permanent partial disability benefits under
Section 8(c)(23). Where, as here, a claimant's retirement is due at least in part
to his occupational disease, as the administrative law judge found in his initial
decision, claimant is not a voluntary retiree and the post-injury provisions of 33
U.S.C. §§902(10), 910(d)(2), and 908(c)(23), do not apply. See Hansen
v. Container Stevedoring Co., 31 BRBS 155, 157 (1997); MacDonald v.
Bethlehem Steel Corp., 18 BRBS 181 (1986); Rajotte v. General Dynamics
Corp., 18 BRBS 85 (1986). In the case of a partially disabled involuntary
retiree, benefits are awarded under Section 8(c)(21) of the Act, 33 U.S.C.
§908(c)(21), and are premised on the claimant's establishing a loss in his
wage-earning capacity. See generally Smith v. Ingalls Shipbuilding Div./Litton
System Inc., 22 BRBS 46 (1989). Thus, if claimant is not totally disabled, any
permanent partial disability award must be under Section 8(c)(21).
We are also unable to affirm the administrative law judge's finding on remand
that claimant did not meet his burden of establishing exposure to asbestos. In
reaching this conclusion, the administrative law judge failed to weigh the relevant
evidence. In our initial Decision and Order, after noting that the record contains
medical reports contemporaneous with claimant's covered employment with employer
in which claimant reported working with asbestos blankets and being covered with
a white dust, CX 5, and that claimant had testified that he worked in a smoky and
dusty environment, Tr. at 26-28, the Board held that the administrative law judge
erred in concluding that claimant failed to establish the working conditions prong
of his prima facie case based on his failure to present any documentary
evidence. The Board held that contrary to the administrative law judge's
determination, claimant was not required to introduce documentary evidence and that
claimant's testimony, as supported by contemporaneous medical reports referencing
his occupational history, may be sufficient, if credited, to establish the
existence of working conditions which could have caused his asbestosis. In light
of the administrative law judge's failure to assess the credibility of claimant's
testimony and the history reported in the medical records, the Board vacated his
finding that claimant failed to establish the working conditions element of his
prima facie and remanded the case for him to make this determination and
address "all of the evidence regarding the existence of working conditions which
may have caused claimant's asbestosis."
On remand, the administrative law judge summarily concluded that claimant did
not carry his burden of establishing exposure to asbestos while working for
employer because claimant's hearing testimony was barren on this point, and the two
references to asbestos exposure in the doctors' notes to which he referred in his
initial decision were equivocal, with one referring to the "presence" of asbestos,
and the other, of the "possibility" of exposure. In addition, the administrative
law judge noted that neither report indicated what the claimant himself had
reported by history and determined that to rely on this "evidence" to support a
finding of exposure to asbestos would not be reliance on hearsay, but rather on
conjecture.[2]
Contrary to the administrative law judge's determination in his Decision and
Order on Remand, however, claimant did in fact provide testimony relevant to this
issue. Moreover, in addition to the two references which the administrative law
judge discounted, the record also contains relevant testimony provided by Drs.
Cherniak and Godar, which the administrative law judge failed to consider.[3] After obtaining claimant's occupational history,
and reviewing his x-rays and prior medial records, Dr. Cherniak opined that based
on his personal knowledge of asbestos exposure in the construction trades in the
shipyards in Connecticut generally through the 1970's, and the results of a study
performed by the Mount Sinai group in the mid-1970's, he believed that the pleural
scarring claimant exhibited was due at least in part to asbestos exposure while
working for employer from 1952 until 1966. CX 28 at 15,16, 23, 38.
Similarly, after obtaining a complete occupational history from claimant in which
claimant referred to having to use asbestos blankets frequently and working in
fairly confined compartments without ventilation equipment, Dr. Godar opined that
the pleural thickening and pleural plaques claimant exhibited were characteristic
of previous exposure to asbestos. EX 1 at 7-8, 18-19, 30, 37. Inasmuch as the
administrative law judge mischarcterized claimant's testimony and failed to
consider the relevant opinions of Drs. Godar and Cherniak, we must again vacate his
finding that claimant failed to establish exposure to asbestos and remand for him
to reconsider this issue in light of all of the relevant evidence as is required
under the Administrative Procedure Act, 5 U.S.C.§557(c)(3)(A), consistent with
our prior remand instructions in this case. On remand, if the administrative law
judge finds claimant's testimony or the statements of Drs. Godar and Cherniak
credible, he should find claimant has established the working conditions element
of his prima facie case under Section 20(a) with regard to the asbestosis
claim and consider whether employer introduced evidence sufficient to rebut the
presumption.
Accordingly, the administrative law judge's findings regarding the extent of
claimant's disability due to his occupational lung disease and the existence of
working conditions which could have caused claimant's asbestosis contained in his
Decision and Order On Remand are vacated, and the case is remanded for further
consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
Footnotes.
1)Claimant asserts that while he is not alleging any present
disability due to asbestosis, an adverse ruling on the issue of asbestos exposure
could affect any future claim for asbestos-related conditions such as mesothelioma
by becoming the "law of the case."
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2)In finding that claimant did not meet his burden of proof on
this issue, the administrative law judge expressed concern that claimant received
subsequent exposure to industrial irritants in his 20 years of non-maritime work
as an iron worker. However, in the case of an occupational disease the fact that
claimant may have received subsequent exposure to injurious stimuli in non-covered
employment does not absolve employer of liability. See Todd Shipyard Corp v.
Black, 717 F.2d 1280, 1285 (9th Cir. 1983); Hughes v. Bethlehem Steel
Corp., 17 BRBS 153, 156 (1985). Under such circumstances, the last covered
employer to expose claimant to injurious stimuli remains liable under the Act .
See Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert.
denied, 350 U.S. 913 (1995).
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3)Claimant argues that Dr. Cherniak's and Dr. Godar's opinions,
although hearsay, are not excluded because they fall within various exceptions to
the hearsay rule, Fed. R. Evid. 803. We need not address the exclusions. An
administrative law judge may rely on hearsay testimony, as he is not bound by
formal rules of evidence. 33 U.S.C. §923(a); see Powell v. Nacirema
Operating Co., Inc., 19 BRBS 124 (1986).
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NOTE: This is an UNPUBLISHED LHCA Document.