TOPIC 20 PRESUMPTIONS
20.1 GENERALLY
Section 20 of the LHWCA 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--
(a)That the claim comes within the provisions of this Act.
(b)That sufficient notice of such claim has been given.
(c)That the injury was not occasioned solely by the intoxication of
the injured employee.
(d)That the injury was not occasioned by the willful intention of the
injured employee to injure or kill himself or another.
33 U.S.C. § 920.
20.2 SECTION 20(a) CLAIM COMES WITHIN PROVISIONS OF THE LHWCA
Section 20 provides that "[i]n 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-- (a) that the
claim comes within the provisions of this Act." 33 U.S.C. § 920.
20.2.1 Prima Facie Case
The Section 20(a) presumption does not apply to aid the claimant in establishing his prima
facie case. The claimant must establish a prima facie case by proving that he suffered some harm or pain,
Murphy v. SCA/Shayne Brothers, 7 BRBS 309 (1977), aff'd mem., 600 F.2d 280 (D.C. Cir. 1979), and
that an accident occurred or working conditions existed which could have caused the harm. Kelaita v.
Triple A Mach. Shop, 13 BRBS 326 (1981). See U.S. Industries/Federal Sheet Metal v. Director,
OWCP (Riley), 455 U.S. 608, 14 BRBS 631, 633 (1982), rev'g Riley v. U.S. Industries/Federal Sheet
Metal, 627 F.2d 455, 12 BRBS 237 (D.C. Cir. 1980); Gooden v. Director, OWCP, 135 F.3d 1066, 32
BRBS 59 (CRT) (5th Cir. 1998); Bolden v. G.A..T.X. Terminals Corp., 30 BRBS 71 (1996); Stevens
v. Tacoma Boatbuilding Co., 23 BRBS 191 (1993). It is the claimant's burden to establish each element
of his prima facie case by affirmative proof. See Kooley v. Marine Industries Northwest, 22 BRBS 142
(1989); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (CRT) (1994).
In presenting his case, the claimant is not require to introduce affirmative medical evidence that the working
conditions in fact caused his harm; rather, the claimant must show that working conditions existed which
could have caused his harm. See generally U.S. Industries/Federal Sheet Metal, Inc., 455 U.S. at 608,
14 BRBS at 631.
In, U.S. Industries, the United States Supreme Court declined to address the scope of the
Section 20(a) presumption, but noted that a prima facie claim must at least allege an injury that arises out
of and in the course of employment and that the mere existence of a physical impairment is plainly
insufficient to shift the burden of proof to the employer. Thus, U.S. Industries is consistent with the Board's
holding that a claimant must establish a prima facie case before the Section 20(a) presumption is invoked.
See Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 280 (1990); Cairns v. Matson Terminals, 21
BRBS 252 (1988).
In U.S. Industries, the United States Supreme Court stated, "[a] prima facie 'claim for
compensation,' to which this statutory presumption refers, must at least allege an injury that arose in the
course of employment as well as out of employment." 455 U.S. at 615, 14 BRBS at 633. This holding
is consistent with those in Kelaita, 13 BRBS 326, and Darnell v. Bell Helicopter International, 16 BRBS
98 (1984), aff'd sub nom. Bell Helicopter International v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT)
(8th Cir. 1984). See Noble Drilling Co. v. Drake, 795 F.2d 478, 19 BRBS 6 (CRT) (5th Cir. 1986).
In U.S. Industries, the Supreme Court held that Section 20(a) may only be invoked with regard
to a prima facie claim by a claimant alleging an injury both arising out of and in the course of employment.
The Supreme Court did not hold that such a claim must be stated in the claimant's initial notice of injury
to be considered, but prohibited consideration of the claim never made by the claimant at any stage of the
proceedings.
In Cairns v. Matson Terminals, 21 BRBS 252 (1988), the Board interpreted U.S. Industries and
found that the Supreme Court did not say that pain is not a compensable injury or that claimant must prove
an injury arising out of and in the course of employment without the benefit of the Section 20(a)
presumption. Moreover, the Board stated that the Supreme Court stated only that a prima facie claim
must at least allege an injury that arose in the course of employment as well as out of employment.
In Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989), the claimant did not allege
a low back injury in her initial report of injury, but she was subsequently treated by several physicians for
a low back injury, and she clearly sought benefits for a low back injury arising from her fall at work. In this
case, the Board found that the claimant satisfied the requirement of U.S. Industries that claimant allege an
injury arising out of and in the course of employment by asserting that she sustained a low back injury which
was caused by the fall at work.
In Larkin v. Navy Exchange Service Command, (BRB No. 99-01666) (Jan. 22,
1999)(Unpublished), the Board affirmed the ALJ's denial of benefits where a claimant suffered from
tuberculosis and the evidence showed that a number of the claimant's co-workers tested positive for
tuberculosis but none was shown to have active TB. The Board agreed that the fact that 27 co-workers,
who were tested and did not return for a reading of the test, was insufficient to raise the Section 20(a)
presumption.
20.2.2 Injury
The Board has consistently found that the presumption does not apply to the issue of whether a
physical or psychological harm or injury occurred. See Devine v. Atlantic Container Lines, G.I.E., 25
BRBS 15 (1990); Murphy v. SCA/Shayne Bros., 7 BRBS 309 (1977), aff'd mem., 600 F.2d 280 (D.C.
Cir. 1979).
Claimant has sustained an "injury" where he has some harm or pain, or if "something unexpectedly
goes wrong within the human frame." Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (en banc).
The claimant's burden does not, however, include establishing an injury as defined in Section 2(2) of the
LHWCA. In Kelaita, the Board noted that to place such a burden on the claimant would be contrary to
the well-established rule that the Section 20 presumption applies to the issue of whether an injury arose out
of and in the course of employment. Kelaita, 13 BRBS at 329. See Topic 2(2) for additional case
citations, supra.
An injury need not be traceable to a definite time, but can occur gradually over a period of time.
See Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986); Gardner v. Bath Iron Works Corp., 11 BRBS 556
(1979), aff'd sub nom. Gardner v. Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981).
In Volpe v. Northeast Marine Terminals, 671 F.2d 697, 14 BRBS 538 (2d Cir. 1982), rev'g 14
BRBS 1 (1981), the court held that the ALJ erred in failing to shift the burden of proof to the employee
where he clearly sustained an injury in the form of chest pain at work. Instead, the judge improperly
focused on whether the employee proved he suffered a myocardial infarction on the day in question. The
court further noted that in affirming the judge, the Board exceeded its scope of review by supplementing
an inadequate decision.
In Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989), the Board held that the Section 20(a)
presumption applied as a matter of law because it had held that pleural plaques constitute a harm, i.e. an
injury, and the parties agreed that the pleural plaques were caused by claimant's exposure to asbestos while
employed with employer. No medical opinions existed in the record to sever the relationship between the
pleural plaques and the claimant's asbestos exposure. Thus, the Board held that the employer failed to
rebut the Section 20(a) presumption and reversed the judge's finding that the claimant failed to establish
the existence of a work-related injury.
In Mackey v. Marine Terminals Corp., 21 BRBS 129 (1988), the Board affirmed the judge's
finding of no causation regarding the claimant's complaints of visual difficulties and an alleged injury to his
right eye. Although the reports of two doctors contained objective evidence of an injury to the claimant's
right eye, they rejected a causal connection between the incident in which the plastic lens on the tractor was
broken and the claimant's symptoms and/or corneal scarring. Also, the ALJ properly discredited the
credibility of the claimant's testimony and concluded there was no objective evidence to establish the
occurrence of an injury.
In Perry v. Carolina Shipping Co., 20 BRBS 90 (1987), the claimant suffered an on-the-job
seizure which caused him to fall and sustain an injury to his head and hands. The judge properly found
that the claimant's injury to his head and hands was a "harm," and that his fall constituted an accident that
could have caused the harm. It has already been held that a seizure may produce an injury which becomes
compensable. See President & Directors of Georgetown College v. Stone, 59 F.2d 875 (D.C. Cir.
1932).
Also, it is a well-established principle that a compensable injury need not involve unusually
dangerous employment conditions. Bell Helicopter Int'l v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT)
(8th Cir. 1984), aff'g Darnell v. Bell Helicopter Int'l, 16 BRBS 98 (1984). Furthermore, the Board
affirmed that the Section 20(a) presumption was not rebutted and therefore causation was established.
If an employment-related injury contributes to, combines with, or aggravates a pre-existing disease or underlying condition, the entire resultant disability is compensable.
Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966); Rajotte v. General Dynamics
Corp., 18 BRBS 85 (1986). Also, when a claimant sustains an injury at work which is followed by the
occurrence of a subsequent injury or aggravation outside work, employer is liable for the entire
disability if that subsequent injury is the natural, unavoidable result of the initial work injury.
Bludworth Shipyard v. Lira, 700 F.2d 1046, 15 BRBS 120 (CRT) (5th Cir. 1983); Hicks v. Pacific
Marine & Supply Co., 14 BRBS 549 (1981).
An aggravation to an initial asbestos-related injury by further exposure to pulmonary irritants can
be a new injury. Bath Iron Works Corp. v. Director, U.S. Dept. of Labor, (Jones),193 F.3d 27 (1st Cir.
1999)(Initial asbestos-related injury was aggravated by further exposure to pulmonary irritants and was
subsequently found to be a "new" injury resulting in an increase in benefits payable by a new carrier and
based upon the average weekly wage at the time of the new injury).
In a heart attack case, the Board found that chest pains can constitute an injury under the
LHWCA. Cairns v. Matson Terminals, 21 BRBS 252 (1988). The Fifth Circuit held that while the
claimant's work may not have caused or aggravated his cardiovascular disease, a heart attack suffered by
him at work is compensable since it was suffered in the course and scope of his employment. It is
erroneous to focus on the origins of the underlying condition rather than on the ultimate heart attack. The
court held that the LHWCA provides compensation for accidental injury or death arising out of and during
the course of employment and not merely those conditions caused by the employment. Gooden v.
Director, OWCP, 135 F.3d 1066 (5th Cir. 1998). Compare Gooden with American Grain Trimmers,
Inc. v. OWCP (Janich), 181 F3d 810, (7th Cir. 1999), cert. denied 120 S.Ct. 1239 (2000)(Rebuttal
burden is one of production, not persuasion), another heart attack case where the employer rebutted the
presumption but failed to provide substantial evidence supporting a finding that this was not a work-related
injury and death.
The ALJ can properly discredit the credibility of a claimant's testimony and conclude that the
evidence fails to establish the occurrence of an injury. Mackey v. Marine Terminals Corp., 21 BRBS 129
(1988).
Where a physician testified that there was no evidence of asbestosis, that testimony constituted
substantial evidence to support a finding that a claimant's lung disease was not caused by his working
conditions. Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 280 (1990). Thus, the Board affirmed
the ALJ's finding that the Section 20(a) presumption was rebutted. The Board also affirmed the judge's
finding after considering the evidence as a whole that credited the testimony of the physician who believed
there was no causal relationship because his opinion resulted from a more extensive analysis of claimant's
condition. Accordingly, the Board agreed with the judge's finding that claimant's lung disease was not
work-related.
20.2.3 Occurrence of Accident or Existence of Working Conditions Which Could Have
Caused the Accident
The Section 20 presumption also does not aid a claimant in establishing the occurrence of an
accident or the existence of working conditions which could have caused the accident. Mock v. Newport
News Shipbuilding & Dry Dock Co., 14 BRBS 275 (1981); Jones v. J. F. Shea Co., 14 BRBS 207
(1981); Graham v. Newport News Shipbuilding & Dry Dock Co., 13 BRBS 336 (1981). In Bartelle v.
McLean Trucking Co., 14 BRBS 166 (1981), aff'd, 687 F.2d 34, 15 BRBS 1 (CRT) (4th Cir. 1982),
the Board affirmed the ALJ's finding that an alleged fall did not occur where the judge discredited the
claimant's testimony. Accord Jones, 14 BRBS 207. See Lacy v. Four Corners Pipe Line, 17 BRBS 139
(1985) (remand to determine whether claimant met her burden of establishing exposure to potentially toxic
chemicals which could have caused the harm).
The Section 20(a) presumption, however, is applicable to the issue of course of employment.
Compton v. Avondale Industries, Inc., 33 BRBS 174 (1999).
Where aggravation or contribution to a pre-existing condition is alleged, employer must establish
that a claimant's condition was not caused or aggravated by his employment. Cairns v. Matson Terminals,
21 BRBS 252 (1988). In Cairns, the claimant alleged that work-related pains constituted part of his injury
and the Board held that the claimant established the first element of a prima facie case because the judge
found that the claimant did experience chest pains at work.
The claimant is not required to show that his working conditions were unusually stressful.
Cairns, 21 BRBS 252. Since the claimant's ordinary working conditions could have caused his chest pains
as claimant was particularly vulnerable to activities involving physical exertion, the Board held that the
claimant established a prima facie case that his chest pains arose out of and in the course of employment.
Furthermore, under the aggravation rule, if a claimant's work played any role in the manifestation of his
underlying arteriosclerosis, then the non-work-relatedness of the disease and the fact that his chest pains
could have appeared anywhere are irrelevant; the entire resulting disability is compensable.
[ED. NOTE: For more on stress-related injuries, see Topic 20.2.4 "ALJ's Proper Invocation of
Section 20(a)" infra, and specifically the case of Sewell v. Noncommissioned Officers' Open Mess,
32 BRBS 127 (1997), reconsideration denied en banc, 32 BRBS 127 (1998).]
In Peterson v. Columbia Marine Lines, 21 BRBS 299 (1988), the Board affirmed the ALJ's finding
that a claimant's condition was work-related, as the doctor on whom the judge relied to find causation
provided substantial evidence to support the finding of the judge. Specifically, the doctor was unable to
identify the specific chemicals which produced the claimant's hypersensitivity, but the judge indicated that
the claimant's symptoms were due to the cumulative effects of chemical exposures over many years and
that any or all the chemicals to which he was exposed could have played a part in his symptomatology.
The fact that an activity is not authorized is not sufficient alone to remove an injury from the
course of employment. Pursuant to Section 20(a), the employer bears the burden of proof that a claimant's
activity at the time of the injury was unrelated to his employment. Willis v. Titan Contractors, 20 BRBS
11 (1987). See also, Jackson v. Strachan Shipping Co., 32 BRBS 71 (1998) (Presumption applied to
issue of industrial causation of claimant's 1991 injury, when claimant passed out while driving van and hit
a guard stake, and had been diagnosed with a seizure disorder and told not to drive by his treating doctor.).
Since no evidence directly controverted the Section 20(a) presumption in Willis, the ALJ's finding
that the claimant's injury did not occur in the course of employment was reversed.
The Board reversed and remanded an ALJ's decision to consider whether a claimant's
psychological injury was the product of cumulative stress from the job. Marino v. Navy Exchange, 20
BRBS 166 (1988).
Discrepancies in a claimant's accounts of the manner in which the accident occurred were "within
the expected range" and insignificant. Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988).
The ALJ's conclusion that the claimant sustained an industrial injury to his back was supported by the
medical histories and the claimant's testimony.
As noted previously, a claimant is not required to show that his working conditions were unusually
stressful. Cairns v. Matson Terminals, 21 BRBS 252 (1988). Where a claimant had an on-the-job seizure
causing him to fall and sustain an injury to his head and hands, the ALJ properly found that the claimant's
injury was work-related, pursuant to Section 20(a), even though the seizure was not induced by a condition
of his employment. Perry v. Carolina Shipping Co., 20 BRBS 90 (1987).
In Hampton v. Bethlehem Steel Corp., 24 BRBS 141 (1990), the Board affirmed the judge's
finding that an accident occurred at work where a claimant notified her instructor and various physicians
of its occurrence. Therefore, the Section 20(a) presumption was correctly applied. Furthermore, the ALJ
acted within his discretion as trier-of-fact in discrediting a physician's opinion that the claimant's carpal
tunnel syndrome was not work-related because the doctor assumed that the claimant suffered no work-related accident. This testimony by the doctor could not rebut the Section 20(a) presumption as no other
evidence was available to sever the causal connection, thereby showing that the claimant established a
work-related injury.
While the side effects of a prescribed pain medication arguably are a work-related injury in and
of themselves, in Hand v. Marine Port Terminals, (BRB No. 01-0320) (November 29, 2001)
(Unpublished), the Board found it unnecessary to decide whether the ALJ had failed to invoke the Section
20(a) presumption. In hand, the claimant had been prescribed vicodin and endocet for pain for shoulder
surgeries. The leaflet claimant received from the pharmacy with his prescriptions stated that tinnitus ( ringing
or buzzing) in the ears is a less common side effect of the medications claimant was prescribed. Claimant
alleged that his tinnitus was therefor work-related and that he had presented a prima facie case. Noting
that claimant's physician found that claimant's hearing loss was caused by noise-induced high frequency
hearing loss and that there was evidence that gunshot exposure from years of hunting may have caused the
hearing loss, the Board found that there was sufficient evidence to rebut the presumption had it been
invoked and that a weighing of the evidence in its entirety supported the ALJ's conclusion that the tinnitus
was not a work-related injury. (The Physician's Desk Reference and the product information sheet
obtained from the drugs' manufacturers did not list tinnitus as a possible side effect.
20.2.4 ALJ's Proper Invocation of Section 20(a)
The Board has affirmed a judge's invocation of Section 20(a) after finding that the claimant
established a prima facie case.
In O'Kelley v. Dept. of the Army/NAF, 34 BRBS 39 (2000), the employer did not dispute that
the claimant had suffered a harm, i.e., a neurological condition, and that the claimant had presented
evidence of his exposure to pesticide fumes during his employment with the employer. Rather, the
employer challenged the ALJ's invocation of the Section 20(a) presumption on the ground that no credible
evidence existed that the claimant's exposure to pesticides could have caused his current neurological
condition. The Board upheld the ALJ's invocation of the presumption. However, in doing so it noted that
the ALJ specifically set forth medical testimony that opined that the claimant's chemical exposures
aggravated his neurological condition. The Board further pointed out that the ALJ noted that the
employer's expert conceded that the claimant had been exposed to some pesticides and chemicals that can
cause some symptoms similar to those which the claimant described. Specifically, the Board stated:
Given this evidence, we reject employer's argument that claimant did not establish a prima
facie case and affirm the administrative law judge's invocation of the Section 20(a)
presumption, as claimant has established a harm and the existence of working conditions
which could have caused or aggravated that harm. See Sinclair v. United Food &
Commercial Workers, 23 BRBS 148 (1989).
[ED. NOTE: It is submitted that the medical evidence noted by the Board above was not necessary
for invocation of the Section 20(a) presumption, but rather should have been noted during the
rebuttal analysis and the weighing of the evidence in its totality. As the Fifth Circuit noted in
Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59 (CRT) (5th Cir. 1998), Section 20(a)
provides the claimant with a presumption that the injury he sustained is casually related to his
employment if he establishes a prima facie case by showing that he suffered a harm and that
employment conditions existed or a work accident occurred which could have caused the harm.
Once the claimant has invoked the presumption, the burden shifts to the employer to rebut it with
substantial countervailing evidence. Peterson v. General Dynamics Corp., 25 BRBS 14 (CRT) (2d
Cir. 1992), cert. denied, 507 U.S. 909 (1993); Davison v. Bender Shipbuilding & Repair Co., Inc.,
30 BRBS 45, 46-47 (1996). If the ALJ finds that the Section 20(a) presumption is rebutted, then all
relevant evidence must be weighed to determine if a causal relationship has been established with
the claimant bearing the burden of persuasion. See, e.g. Meehan Service Seaway Co. v. Director,
OWCP, 125 F.3d 1163, 31 BRBS 114 (CRT) (8th Cir. 1997), cert. denied, 523 U.S. 1020 (1998); see
also Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994).]
In Marinelli v. American Stevedoring, Ltd, 34 BRBS 112 (2000), the Board held that the ALJ had
properly invoked the Section 20(a) presumption when the judge found that the claimant's work-place stress
could have precipitated a cardiac incident. The Board specifically found that the ALJ acted within his
discretion in crediting the claimant's testimony concerning his stressful working conditions, as corroborated
by other testimony. Also noted was the fact that the claimant had passed out at work, striking his head,
after engaging in a dispute with some workers, experiencing chest pain and taking nitroglycerin tablets; and
that he had to be rushed to the hospital. Additionally the Board noted medical opinions that stress may
cause such a cardiac incident.
In Carlisle v. Bunge Corp., 33 BRBS 133 (1999), the Board also found that medical evidence
supported the ALJ's decision that the presumption had been invoked. The Board noted that the evidence
established that the claimant sustained a harm, i.e., carpel tunnel and cubital tunnel syndromes, as diagnosed
by two doctors; and that the ALJ had found that the requisite working conditions existed. See generally
Donnell v. Bath Iron Works Corp., 22 BRBS 136 (1989).
Again, in Everson v. Stevedoring Services of America, 33 BRBS 149 (1999), the Board again
upheld the ALJ's finding that the presumption was invoked based on the claimant's testimony that his work
environment exposed him to loud noise and a doctor's opinion that the noise exposure likely caused some
of the claimant's hearing loss. In Flanagan v. McAllister Brothers, Inc., 33 BRBS 209 (1999), the Board
also found that the ALJ had properly relied on the claimant's testimony when invoking the presumption.
In Flanagan, the ALJ found that the evidence was sufficient to invoke the presumption of a work-related
respiratory condition based on a doctor's diagnosis of asbestosis and the claimant's credible and
uncontroverted testimony that he was exposed to asbestos at the employer's work place.
The Fifth Circuit has also addressed the issue of credible/incredible testimony used by a claimant
to invoke the presumption. Conoco, Inc. v. Director, OWCP, 33 BRBS 187 (CRT) (1999). In Conoco,
the Fifth Circuit found that the claimant had made a prima facie case by proving "(1) a harm and (2) a
condition of work or workplace injury that could have caused the harm, even if her testimony was
inconsistent at times." The Fifth Circuit explained:
The ALJ, as affirmed by the BRB, was within his discretion to discount Conoco's attacks
on [the claimant's] credibility based on her inconsistent statements regarding the exact
location of the impact of the turnbuckle on her body, particulars about the accident scene,
and description of symptoms to various medical professionals. Such inconsistencies will
not undermine automatically the relatively light burden of establishing a prima facie case.
In Quinones v. H.B. Zachery, Inc. 32 BRBS 6 (1998), the Board found that the ALJ properly
invoked the presumption after the judge credited the claimant's testimony regarding the requirements of his
job. Specifically, the ALJ found that the claimant was engaged in labor which involved lifting and moving
heavy materials. In Quinones, it was uncontested that the claimant suffered a "harm," i..e., back pain. Thus,
the focus of the case was the wether the second prong of the prima facie case had been met.
The "working conditions" prong of a prima facie case necessary to invoke Section 20(a) requires
that the ALJ determine whether the employment events claimed as a cause of the harm sustained by the
claimant in fact occurred. Sewell v. Noncommissioned Officers' Open Mess, 32 BRBS 127 (1997),
reconsideration denied en banc, 32 BRBS 127 (1998), (Presumption invoked by showing that working
conditions resulted in stress which could have caused industrial psychological injury.). Importantly in
Sewell, the Board found that in a case involving allegations of stressful working conditions, the claimant is
not required to show unusually stressful conditions in order to establish a prima facie case. Rather, even
where stress may seem relatively mild, the claimant may recover if an injury results. Sewell; see Konno v.
Young Brothers, Ltd., 28 BRBS 57 (1994); see generally, Wheatley v. Adler, 407 U.S. 307 (D.C. Cir.
1968); 1B Larson, Workmen's Compensation Law, § 42.25(f), (g) (1996). The issue in such situations
is the effect of this stress on the claimant.
In reversing the ALJ to find that the presumption had been invoked., the Board first noted the
ALJ's findings. The ALJ had found that the evidence of record failed to establish that the claimant's overall
working conditions were so stressful, even cumulatively, that they gave rise to her psychological injury, and
concluded that the stress involved in bartending at the club were not outside the realm of ordinary work
place experiences. Instead, the ALJ found that the club experienced a natural transition with the new
management, and thus, the ALJ concluded that the claimant had failed to establish a prima facie case.
However, the Board found:
In reviewing the administrative law judge's analysis of the evidence on remand, it is clear
that the administrative law judge considered whether employer's daily interactions with
claimant,..., were legitimate or justified. However, when considering a claim based on
stressful work conditions, the issue is not whether employer's actions were justified but
whether irrespective of the disciplinary and termination procedures, claimant's working
conditions were stressful, i.e., whether claimant experienced cumulative stress in her
general working conditions which could have caused or aggravated her psychological
injury.
***
In this case, claimant alleged stressful working conditions and the evidence credited by the
administrative law judge establishes that stressful conditions existed. While employer's
action in placing its bartenders under greater scrutiny may have been well-justified by
business considerations, this change created stressful working conditions. More
significantly, specific instances, including [the supervisor]'s use of an angry tone with
claimant in the presence of bar patrons, as well as his unwelcome touching of claimant,
clearly were stressful. The administrative law judge did not find these events, which were
the basis for claimant's claim, did not occur. As these incidents involve day-to-day
working conditions rather than personnel actions, such as the disciplinary and termination
proceedings, they can establish working conditions sufficient to demonstrate a prima facie
case.... . Moreover, in the opinion of claimant's treating psychologist, claimant's work-related stress contributed greatly to her major depression.
[ED. NOTE: A legitimate personnel action, however, does not provide a proper basis for finding
a compensable psychological injury. Marino v. Navy Exchange, 20 BRBS 166 (1988).]
Manship v. Norfolk & Western Railway Co., 30 BRBS 175 (1996) is another case where the
presumption was invoked for a claimed psychological injury. The presumption was first invoked for a
physical injury. During his employment, claimant injured his back, was taken to the hospital and
diagnosed with a lower back strain. The next day he was treated by employer's physician who diagnosed
lumbosacaral and sacroilliac strain with sciatica and was authorized to return to work a week later.
However, the next day, the claimant received a letter from his employer advising him that they were
conducting an investigation regarding his "alleged," injury and "false" statements about his back condition.
Three days after claimant filed his LHWCA claim he was terminated. On the day of his formal termination,
the claimant underwent a psychological evaluation where he complained that he feared losing his job, felt
overwhelmed with stress, and had little outside support. He was diagnosed with adjustment disorder with
mixed emotional features.
In Manship, the Board found that the ALJ had properly invoked the presumption based on the
treating physician's opinion that the claimant's emotional disorder was caused in part by the work-related
injury. Employer had argued that employer's discharge of the claimant was the sole cause of the claimant's
psychological problem. In agreeing with the ALJ, the Board noted that in fact, there was no medical
evidence in the record suggesting that the claimant's emotional disorder was not related to his back injury.
Damiano v. Global Terminal & Container Service, 32 BRBS 261 (1998) is another case where
the presumption was invoked because the ALJ rationally credited the claimant's testimony. Here, the noise
from the machinery around which the claimant worked was so loud that it often required the employees to
raise their voices to be heard. The ALJ credited this testimony from the claimant over the contrary
testimony of employer's assistant terminal manager, since the claimant's greatest exposure to injurious noise
levels occurred prior to the time the assistant terminal manager began working for employer and there was
medical evidence of record that the claimant's hearing loss is attributable to noise exposure.
In Rochester v. George Washington University, 30 BRBS 233 (1997), the presumption was
invoked to apply to the claimant's contention that his dystonia condition was related to his industrial back
injury. The claimant had introduced medical literature regarding the possibility that dystonia may devolve
from trauma. However, the presumption was rebutted when the employer introduced "specific and
comprehensive evidence" that this condition in this instance was not related to the claimant's work related
injury.
In Lacy v. Four Corners Pipe Line, 17 BRBS 139 (1985), the Board held that the ALJ erred in
finding no causation without considering the application of Section 20(a). The claimant had established that
she suffered a physical harm (hepatitis) and there was conflicting evidence as to whether the claimant met
her burden of establishing exposure to potentially toxic chemicals which could have caused the harm. If
the claimant was exposed to toxic chemicals during the incubation period for hepatitis, then her prima facie
case was established. The case was remanded to the judge for fact-finding.
In Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984), the judge properly invoked the Section
20(a) presumption where the claimant suffered from cancer (a harm) and claimant alleged that exposure
to asbestos caused the disease (conditions existed which could have caused the harm).
In Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985), the Board affirmed a judge's finding
that the decedent was exposed to asbestos in his job with the employer and that the decedent suffered from
a pulmonary impairment, as the assertions were supported by the medical evidence and testimony and
sufficient to raise the Section 20(a) presumption.
A claimant can meet his burden of showing the existence of an injury through medical evidence.
In Fortier v. General Dynamics Corp., 15 BRBS 4 (1982), the claimant met this burden by showing that
he had a lung condition which resulted in symptoms of chest pain and shortness of breath. The claimant
also established exposure to asbestos. This evidence was sufficient to invoke the Section 20(a)
presumption.
In Woodside v. Bethlehem Steel Corp., 14 BRBS 601 (1982), the Board held that the ALJ
erred in failing to apply the presumption where the employee had chronic obstructive pulmonary disease
(a harm or injury) and where it was undisputed that the employee was exposed to various substances at
work which could have caused his lung problems. The case was remanded for further fact-finding because
the ALJ failed to properly apply the presumption.
An ALJ properly invoked the presumption where he reasonably inferred from the employee's
testimony and general information regarding the chemical composition of petroleum products that the
employee was exposed to benzene and where there was substantial evidence that benzene has been
implicated as a carcinogen. Compton v. Pennsylvania Ave. Gulf Serv. Center, 14 BRBS 472 (1981) (ALJ
properly invoked presumption since conditions existed which could have caused the injury, myelomonocytic
leukemia).
The Board has held that it is error to hold that the Section 20(a) presumption does not apply where
it is undisputed that a claimant has a work-related accident and suffers a disabling back condition. Novak
v. I.T.O. Corp. of Baltimore, 12 BRBS 127 (1979). Error is harmless, however, where there is substantial
evidence to rebut the presumption.
Similarly, in Frye v. Potomac Electric Power Co., 21 BRBS 194 (1988), the Board found that the
ALJ erred in determining whether the claimant's back problems and chronic pain syndrome were causally
related to his employment. As it was undisputed that the claimant suffered from back pain and chronic pain
syndrome and that a work accident occurred, the claimant was entitled to the Section 20(a) presumption
that these conditions were causally related to his employment. Since the record contained conflicting
evidence as to the cause of the claimant's back problems and his chronic pain syndrome, the Board
remanded the claim because the judge failed to consider the conflicting evidence in concluding that these
conditions were not work-related.
20.2.5 Failure to Properly Apply Section 20(a)
It is an error of law if the ALJ fails to consider the Section 20(a) presumption where it is applicable.
Adams v. General Dynamics Corp., 17 BRBS 258 (1985); Dower v. General Dynamics Corp., 14 BRBS
324 (1981); Kielczewski v. Washington Post Co., 8 BRBS 428 (1978).
If the ALJ fails to properly apply the presumption, however, the Board will consider whether there
is substantial evidence to support the judge's ultimate conclusion. If there is such evidence, the judge's
failure to consider the presumption is harmless. Fortier, 15 BRBS 4; Reed v. Macke Co., 14 BRBS 568
(1981); Taylor v. Smith & Kelly Co., 14 BRBS 489 (1981); Roberts v. Bath Iron Works Corp., 13
BRBS 503 (1981); Pardee v. Army & Air Force Exch. Serv., 13 BRBS 1130 (1981); Novak v. I.I.O.
Corp, 12 BRBS 127 (1979). But cf. Volpe v. Northeast Marine Terminals, 671 F.2d 697, 14 BRBS 538
(2d Cir. 1982) (reversing Board decision affirming ALJ where ALJ failed to apply presumption and Board
engaged in fact-finding to supplement his decision).
Failing to find the presumption rebutted is harmless where there is substantial evidence to support
the judge's conclusion that a causal connection existed between the claimant's injury and employment. Kier
v. Bethlehem Steel Corp., 16 BRBS 128 (1984); Seaman v. Jacksonville Shipyards, 14 BRBS 148.9
(1981); Shoemaker v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 141 (1980).
Similarly, the Board has also held that a judge's error in applying the presumption is harmless where
there is substantial evidence to support the judge's finding that no causal relationship existed. See Graham
v. Newport News Shipbuilding & Dry Dock Co., 13 BRBS 336 (1981).
Where the ALJ's finding of no causation is based, however, on an improper application of Section
20(a) and the record lacks evidence rebutting the presumption, the Board has reversed the judge's decision.
Adams, 17 BRBS 258; Dower, 14 BRBS 324.
In Rajotte v. General Dynamics Corp., 18 BRBS 85 (1986), the Board remanded the claim for
reconsideration of the evidence regarding causation because the judge failed to apply the Section 20(a)
presumption and the claimant clearly established that his lung disease could have been caused or aggravated
by asbestos exposure at work. In Hargrove v. Strachan Shipping Co., 32 BRBS 11 (1998), the Board
also remanded the matter for the ALJ to make a determination as to whether the presumption is rebutted
and, if so, as to whether a causal relationship is established based on the record as a whole. In Hargrove,
the Board had found that the ALJ had erred in placing the burden of proof on the claimant to prove that
his psychological condition was work-related. It is well-settled that a psychological impairment which is
work-related is compensable under the LHWCA, and that Section 20(a) applies to such injuries. Sanders
v. Alabama Dry Dock & Shipbuilding Co., 22 BRBS 340 (1989); Turner v. The Potomac Electric
Chesapeake & Potomac Telephone Co., 16 BRBS 255 (1984).
In Hargrove, the evidence showed that the claimant had ongoing psychiatric problems, including
numerous stays in mental hospitals, suicide attempts, electroshock therapy and diagnoses of major
depression and schizophrenic reaction. The record contained medical reports/opinions that if the claimant
had chronic pain as a result of his work-related injury, such chronic pain would definitely have been a
contributing factor to his depression. The Board stated, "As there is evidence of record that claimant
suffers from a psychiatric condition that could have been caused, at least in part, by the loss of working
capacity due to his injury, we hold that the [ALJ] erred in failing to invoke the Section 20(a) presumption."
In Universal Maritime Corp. v. Moore, 31 BRBS 119 (CRT), the Fourth Circuit found that while
the ALJ did was entitled to credit the claimant's testimony that back pain resulted from his work-related
accident, the ALJ erred in continuing to treat the presumption as substantive evidence. The Fourth Circuit
found that the statutory presumption created by the LHWCA functions similarly to the presumption created
by Rule 301 of the Federal Rules of Evidence and the proof scheme under Title VII of the Civil Rights Act
of 1964 as described in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
In Thompson v. Lockhead Shipbuilding & Construction Co., 21 BRBS 94 (1988), the judge did
not err in applying the Section 20(a) presumption to link the claimant's back condition to his work-related
ankle injury. Although the ALJ failed to go through the prescribed analysis for the application of Section
20(a), the judge considered all relevant evidence prior to making his finding.
Likewise, in Oliver v. Murry's Steaks, 21 BRBS 348 (1988), the Board held the ALJ's failure to
apply the section 20(a) presumption was harmless as his finding of no causation was supported by
substantial evidence.
In O'Berry v. Jacksonville Shipyards, 21 BRBS 355, 360 n.3 (1988), the claimant was entitled to
the benefit of the Section 20(a) presumption in that he established a harm, a lung condition, and he testified
that he was exposed to asbestos at work. Although the judge did not apply the Section 20(a) presumption,
the Board held that any error is harmless in this case because the judge's ultimate finding that the claimant's
lung condition was siderosis and not asbestosis is supported by substantial evidence and is sufficient to
rebut the presumption.
20.3 EMPLOYER HAS BURDEN OF REBUTTAL WITH SUBSTANTIAL EVIDENCE
The Section 20(a) presumption is not affirmative evidence giving weight to the claimant's
evidence, but rather is a procedural tool. Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS 11
(CRT) (1st Cir. 1982), aff'g Sprague v. Bath Iron Works Corp., 13 BRBS 1083 (1981); Novak v.
I.T.O. Corp. of Baltimore, 12 BRBS 127 (1979).
Section 20(a) places the burden on the employer to go forward with substantial
countervailing evidence to rebut the presumption that the injury was caused by the claimant's
employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1082, 4 BRBS 466, 475 (D.C. Cir.), cert.
denied, 429 U.S. 820 (1976). When aggravation of or contribution to a pre-existing condition is alleged,
the presumption also applies, and in order to rebut it, employer must establish that the claimant's condition
was not caused or aggravated by his employment. Rajotte v. General Dynamics Corp., 18 BRBS 85
(1986); LaPlante v. General Dynamics Corp./Elec. Boat Div., 15 BRBS 83 (1982); Seaman v.
Jacksonville Shipyards, 14 BRBS 148.9 (1981). See Hensley v. Washington Metro. Area Transit Auth.,
655 F.2d 264, 13 BRBS 182 (D.C. Cir. 1981), cert. denied, 456 U.S. 904 (1982), rev'g 11 BRBS 468
(1979) (employer must establish that aggravation did not arise even in part from employment).
[ED. NOTE: Compare this, however, to the non-LHWCA civil rights case, St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993) (as in the case of all presumptions, see Fed. Rule Evid. 301, the
ultimate burden of persuasion remains at all times with the moving party). Fed. Rule Evid. 301
states:
In all civil actions and proceedings not otherwise provided for by Act of Congress
or by these rules, a presumption imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the presumption, but does
not shift to such party the burden of proof in the sense of the risk of nonpersuasion,
which remains throughout the trial upon the party on whom it was originally cast.]
Thus, once the Section 20(a) presumption applies, the relevant inquiry is whether employer
succeeded in establishing the lack of a causal nexus. Dower v. General Dynamics Corp., 14 BRBS 324
(1981). Employer must produce facts, not speculation, to overcome the presumption of compensability,
and reliance on mere hypothetical probabilities in rejecting a claim is contrary to the presumption created
in Section 20(a). Dearing v. Director, OWCP, 27 BRBS 72 (CRT) (4th Cir. 1993)(Unpublished)
(medical evidence constituted substantial evidence to support employer's rebuttal and sole medical evidence
on claimant's behalf was equivocal); Steele v. Adler, 269 F. Supp. 376 (D.D.C. 1967). See Smith v.
Sealand Terminal, 14 BRBS 844 (1982); Dixon v. John J. McMullen & Assocs., 13 BRBS 707 (1981).
Highly equivocal evidence is not substantial and will not rebut the presumption. Dewberry v. Southern
Stevedoring Corp., 7 BRBS 322 (1977), aff'd mem., 590 F.2d 331, 9 BRBS 436 (4th Cir. 1978).
When there has been a work-related accident followed by an injury, however, the employer need
only introduce medical testimony or other evidence controverting the existence of a causal relationship and
need not necessarily prove another agency of causation to rebut the presumption. Stevens v. Todd Pac.
Shipyards, 14 BRBS 626 (1982), aff'd mem., 722 F.2d 747 (9th Cir. 1983), cert. denied, 467 U.S. 1243
(1984); Champion v. S & M Traylor Bros., 14 BRBS 251 (1981), rev'd and remanded, 690 F.2d 285,
15 BRBS 33 (CRT) (D.C. Cir. 1982).
The presumption may be rebutted by negative evidence if it is specific and comprehensive enough
to sever the potential connection between the particular injury and the job-related accident. Swinton, 554
F.2d 1075, 4 BRBS 466. Although in Swinton, the evidence adduced was insufficient to meet the
requirements of this test, the Board has held that a combination of medical testimony, a credibility
determination, and negative evidence (no medical record in union clinic or hospital books of claimant
slipping or suffering pain) constituted sufficient evidence to rebut the presumption of causation. Craig v.
Maher Terminal, 11 BRBS 400 (1979). A noise survey showing that a workplace is in conformance with
OSHA noise standard is not, in itself, sufficient to rebut the Section 20(a) presumption. Global
Terminal & Container, Inc. v. Forman, 187 F.3d 625 (Table) (3rd Cir. 1999)(Noise survey was not
representative of noise exposure during claimant's entire employment history at employer, but was instead,
only indicative of the noise exposure during the limited times the survey was actually performed.).
The "ruling out" standard (employer must "rule out" the possibility of a causal relationship
between a claimant's employment and injury) recently adopted by the Board, see Brown v. Jacksonville
Shipyards, Inc, 893 F.2d 294 (11th Cir. 1990); Quinones v. H.B. Zachery, Inc., 32 BRBS 6 (1998);
Plappert v. Marine Corps Exchange, 31 BRBS 13 (1997), has been rejected by the Fifth Circuit.
Conoco, Inc. v. Director, OWCP, [Prewitt], 194 F.3d 684, (5th Cir. 1999)(the plain language of the
statute uses the phrase "substantial evidence to the contrary," and placing a higher "ruling out" standard
on the employer is contrary to statue and case law; "We therefore unequivocally reject the 'ruling out'
standard applied by the Board."). The Eleventh Circuit in Brown, had stated that "None of the
physicians expressed an opinion ruling out the possibility that there was a causal connection between the
accident and [claimant's] disability. Therefore, there was not direct concrete evidence sufficient to rebut
the statutory presumption." (Emphasis added.)
However, according to the Fifth Circuit in Conoco, the Board had purported to rely on the Fifth
Circuit's decision in Noble Drilling v. Drake, 795 F.2d 478 (5th Cir. 1986) to formulate its "ruling out
standard." As the Fifth Circuit noted, Noble Drilling does not support a "ruling out" standard. In Noble
Drilling, to rebut the presumption of causation, the employer was required to present substantial evidence
that the injury was not caused by the employment. The Fifth Circuit reiterated, "When an employer offers
sufficient evidence to rebut the presumption-the kind of evidence a reasonable mind might accept as
adequate to support a conclusion-only then is the presumption overcome; once the presumption is rebutted
it no longer affects the outcome of the case. Noble Drilling at 481. "The language does not require a
'ruling out standard;' indeed, the hurdle is far lower. " See also Lennon v. Waterfront Transport, 20 F.3d
658, 662 (5th Cir. 1994); see also American Grain Trimmers, Inc. v. OWCP, 181 F.3d 810 (7th Cir.
1999)("substantial evidence" burden requires introducing "specific and comprehensible evidence, not
speculation, before the § 20(a) presumption would be defeated.).
However, lately even the Board has begun to whittle away at its strict ruling out standard. In
O'Kelley v. Department of the Army/NAF, 34 BRBS 39 (2000), the Board noted that an employer is not
required to establish another agency of causation in order to rebut the Section 20(a) presumption. In
O'Kelley, the Board found that a doctor's admission on cross-examination of a possible causal connection
between the claimant's employment and his present medical condition reflects his opinion that in the medical
profession there is no absolute certainty. This acknowledgment, according to the Board, does not render
his opinion equivocal, as he repeatedly expressed his opinion that no causal relationship exists between the
claimant's present condition and his employment with employer. Thus the Board held that the employer
had produced evidence sufficient to server the causal relationship between the claimant's employment and
his harm. "To hold otherwise,..., would raise the standard regarding rebuttal of the presumption to an
unreasonable level since, [the doctor] implied during his hearing testimony, 'absolute certainty' is a difficult
concept in the medical profession."
[ED. NOTE: For a good discussion of "substantial evidence" and "preponderance of the
evidence" and production burden versus persuasion burden, see American Grain Trimmers, Inc. v.
OWCP (Janich), 181 F.3d 810 (7th Cir. 1999), cert. denied ___ U.S. ___, 120 S.Ct. 1239 (2000).]
Once an employer offers sufficient evidence to rebut the presumption--the kind of evidence a
reasonable mind might accept as adequate to support a conclusion--only then is the presumption overcome
and it no longer controls the result. Travelers Ins. Co. v. Belair, 412 F.2d 297 (1st Cir. 1969); John W.
McGrath Corp. v. Hughes, 264 F.2d 314 (2d Cir.), cert. denied, 360 U.S. 931 (1959); see also
Greenwood v. Army & Air Force Exch. Serv., 6 BRBS 365 (1977), aff'd, 585 F.2d 791, 9 BRBS 394
(5th Cir. 1978); Gifford v. John T. Clark & Son, Inc., 4 BRBS 210 (1976); Norat v. Universal Terminal
& Stevedoring Corp., 3 BRBS 151 (1976). But cf. Maher Terminals v. Director, OWCP, 992 F.2d
1277, 27 BRBS 1 (CRT) (3d Cir. 1993), cert. granted sub nom. Director, OWCP v. Greenwich
Colleries, 510 U.S. 1068 (1994).
Once the Section 20(a) presumption is rebutted, it falls out of the case and the judge must then
weigh all the evidence and resolve the case based on the record as a whole. Swinton, 554 F.2d 1075, 4
BRBS 466; Hislop v. Marine Terminals Corp., 14 BRBS 927 (1982). This rule is an application of the
"bursting bubble" theory of evidentiary presumptions, derived from the Supreme Court's
interpretation of Section 20(d) in Del Vecchio v. Bowers, 296 U.S. 280 (1935). See Brennan v.
Bethlehem Steel Corp., 7 BRBS 947 (1978) (applying Del Vecchio to Section 20(a)).
Occasionally there may be more than one causation issue (particularly when there is a
psychological component to the injury), in which case the employer must address all possible
elements. For instance, in the Nonappropriated Fund Instrumentalities Act case of Zeigler v. Dept. of
the Army/NAF, (BRB No. 99-0122) (Oct. 7, 1999) (Unpublished) (Claimant and doctor's good faith
belief that treatment for Lyme disease was necessary, is a reasonable, compensable medical expense), the
claimant was a Stars and Stripes reporter, who while on assignment in the Black Forest, was bitten by a
tick. The claimant alleged Lyme disease as well as multi-symptom total disability and presented prima
facie cases sufficient to invoke the presumption that he developed early stage Lyme disease as well as late
stage or chronic Lyme disease. The ALJ found that the employer only presented evidence sufficient to rebut
late stage Lyme disease. When the evidence was weighed in its entirety, the ALJ found that the claimant
never had late stage, chronic Lyme disease, but had early stage Lyme disease that resolved at some point.
However, the ALJ went on to next address whether the claimant had suffered from any compensable
injuries as a result of the tick bite injury. He found that the claimant had additionally invoked the
presumption by presenting a prima facie case that his early stage Lyme disease had caused, aggravated,
or accelerated his depression and psychosomatic symptoms which prevented him from working.
Alternatively, the ALJ found that the claimant had presented a prima facie case sufficient to invoke a
Section 20(a) presumption that the tick bite itself, combined with multiple diagnoses and treatment for Lyme
disease, caused, aggravated, or accelerated his depression and psychosomatic symptoms that prevented
him from working. The ALJ concluded that there was no compelling evidence presented by employer to
rebut the Section 20(a) presumption that the claimant suffered a psychological injury from a work related
event that prevented him from performing his job.
20.3.1 Failure to Rebut
In a number of cases, the Board's holding that Section 20(a) was rebutted has been reversed. In
Champion, 14 BRBS 251, the Board affirmed an ALJ's decision that an employer had rebutted the
presumption with evidence showing that, following a temporary period of work-related asthma, the
claimant's asthma was not work-related. Finding that the Board failed to give full scope to Section 20(a),
the court held that the record lacked evidence to rebut the presumption that emotional trauma caused by
the claimant's original period of asthma was a contributing cause of his persistent and disabling asthma.
Champion v. S & M Traylor Bros., 690 F.2d 285, 15 BRBS 33 (CRT) (D.C. Cir. 1982), rev'g and
remanding 14 BRBS 251 (1981).
Similarly in Hensley v. Washington Metropolitan Area Transit Authority, 655 F.2d 264, 13 BRBS
182 (D.C. Cir. 1981), rev'g 11 BRBS 468 (1979), cert. denied, 456 U.S. 904 (1982), the District of
Columbia Circuit reversed the Board's decision and held that the judge and the Board failed to properly
apply the Section 20(a) presumption. The court emphasized that, in order to rebut the presumption, the
employer must establish that the condition was not aggravated by the employment and found that the
testimony of the employer's physician was insufficient to establish that the claimant's psoriasis was not
aggravated by bus driving as it was based on unsupported assumptions regarding the claimant's work
conditions.
In Bath Iron Works v. Brown, 194F.3d 1, (1st Cir. 1999), the court held that the employer failed
to rebut causation. The court noted that the employer could have rebutted the presumption by showing
either that exposure to injurious stimuli [noise] did not cause the harm [hearing loss] or that the claimant was
exposed to injurious stimuli while performing work covered under the LHWCA for a subsequent employer.
In Bell Helicopter Int'l v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT) (8th Cir. 1984), aff'g
Darnell v. Bell Helicopter Int'l, 16 BRBS 98 (1984), the court affirmed the Board's holding that Section
20(a) was not rebutted where the decedent sustained a fatal heart attack at work and employer offered
no evidence that it did not arise out of and in the course of employment. Accord Smith v. Sealand
Terminal, 14 BRBS 844 (1982) (fatal heart attack in the course of employment).
Mere hypothetical probabilities are insufficient to rebut Section 20(a). See id.; see also Dower
v. General Dynamics Corp., 14 BRBS 324 (1981) (evidence which is inconclusive regarding causal
connection between asbestos exposure and rectal cancer is insufficient to rebut); Taylor v. Smith & Kelly
Co., 14 BRBS 489 (1981) (where it is uncontested that claimant suffered some disabling pain, the evidence
was insufficient to rebut the presumption that claimant's pain was due to his work-related fall where a
doctor testified that there was no way to say that any current problems could not possibly be related to the
fall and there was no way of ruling out the fall in any current pain).
The presumption was not rebutted where the employer did not provide concrete evidence but
merely suggested alternate ways that a claimant's injury might have occurred, where there was no evidence
of another cause, and where the medical evidence was inconclusive as to causation. Williams v. Chevron
U.S.A., Inc., 12 BRBS 95 (1980). See Eller & Co. v. Golden, 620 F.2d 71, 12 BRBS 348 (5th Cir.
1980), aff'g 8 BRBS 846 (1978); Owens v. Newport News Shipbuilding & Dry Dock Co., 11 BRBS 409
(1979); Gunter v. Parsons Corp., 6 BRBS 607 (1977), aff'd sub nom. Parsons Corp. v. Director, OWCP,
619 F.2d 38, 12 BRBS 234 (9th Cir. 1980).
While the employer in Port Cooper/T. Smith Stevedoring Co., Inc. v. Hunter, 227 F.3d 285 (5th
Cir. 2000) posited a plausible theory that a hydraulic forklift was incapable of the "kick back" the claimant
described as the cause of his work-related injury, the Fifth Circuit found that the employer's evidence
was not so forceful that it successfully rebutted the presumption. Additionally, the court noted that
the testimony of the employer's expert was undercut by the employer's failure to produce evidence
establishing the precise type of forklift the claimant was operating when he was injured.
In Compton v. Pennsylvania Avenue Gulf Service Center, 9 BRBS 625 (1979), the Board held
that the presumption that a claimant's disease, myelofibrosis with myeloid metaplasia, had been caused by
exposure to benzene at work had been rebutted, noting that employer need not disprove every possible
theory of causation but must only prove the condition is not caused by employment. On remand, finding
the employee has subsequently developed leukemia, the judge admitted additional evidence and invoked
Section 20(a) to link his leukemia and benzene exposure.
The Board affirmed its finding of causation, holding employer failed to meet its burden of providing
substantial evidence to rebut the presumption where its doctor had inadequate information on the amount
of the employee's past exposure to benzene and employer failed to show that the employee's level of
exposure to benzene could not or did not cause the employee's leukemia. Compton v. Pennsylvania Ave.
Gulf Service Center, 14 BRBS 472 (1981).
Although negative evidence may rebut Section 20(a), it must be specific and comprehensive.
Swinton, 554 F.2d 1075, 4 BRBS 466; Adams v. General Dynamics Corp., 17 BRBS 258 (1985)
(pathologist's report silent for asbestosis is inadequate rebuttal evidence).
In Stevens v. Todd Pacific Shipyards, 14 BRBS 626 (1982), the Board affirmed the judge's finding
that there was insufficient evidence to rebut the presumption that sarcoidosis (disease of unknown etiology)
was related to the claimant's employment. Although proof that employment was not a cause is sufficient
in appropriate cases, even though actual cause cannot be identified, the employer's negative evidence here
did not rise to the necessary level. But cf. Champion, 14 BRBS 251 (presumption that sarcoidosis related
to employment exposure to dust rebutted by evidence that, although exact cause is unknown, dust is not
a factor).
Similarly, in Webb v. Corson & Gruman, 14 BRBS 444 (1981), the Board reversed an ALJ's
finding that the presumption was rebutted where no direct, positive evidence was presented in the record.
The judge relied on the claimant's testimony which he discredited to rebut the presumption. The claimant's
testimony did not constitute substantial evidence in rebuttal because it did not sever the potential connection
between injury and employment.
Also, the Board noted in Webb, inaccurate medical histories did not serve as substantial rebuttal
evidence. The Board did not, however, foreclose the possibility that negative credibility determinations
alone could constitute substantial evidence to rebut the presumption. Webb, 14 BRBS 444.
In Jones v. Aluminum Co. of America [JonesII], 35 BRBS 37 (2001), the Board distinguished the
fact that the employer's physician had never affirmatively stated that the decedent's cancer was not caused
by asbestos exposure. It held that because this finding was not included in the medical report, the doctor's
opinion was insufficient under either the "ruling out" standard or the "substantial evidence" standard to rebut
the Section 20(a) presumption. It further held that the absence of diagnostic evidence of asbestosis did not
constitute substantial evidence to rebut the Section 20(a) presumption.
Where an employer did not offer direct evidence to rebut the Section 20(a) presumption but only
relied on the speculative testimony of a medical witness, the judge erred in finding the presumption was
rebutted. Dixon v. John J. McMullen & Assocs., 13 BRBS 707 (1981). In Craig v. Maher Terminal, 11
BRBS 400 (1979), however, the Board held that a combination of medical evidence, a credibility
determination adverse to claimant, and negative evidence was sufficient. See also Mock v. Newport News
Shipbuilding & Dry Dock Co., 14 BRBS 275 (1981) (discussing use of negative evidence in establishing
that alleged accident did not occur).
Where a claimant suffers from a non-work-related disease which could have caused his lung
symptoms, as well as work-related asbestosis, and was exposed to conditions at work which could also
have caused the problem, it is employer's burden to establish that it was the non-work-related condition
which caused the injury. Fortier v. General Dynamics Corp., 15 BRBS 4 (1982). As employer failed to
produce specific and comprehensive evidence that the lung condition was not caused at least in part by
asbestos exposure, the presumption was not rebutted. See id.; LaPlante v. General Dynamics Corp./Elec.
Boat Div., 15 BRBS 83 (1982).
The failure to follow prescribed medical treatment is insufficient to rebut. Ogundele v.
American Sec. & Trust Bank, 15 BRBS 96 (1980). Further, the fact that a claimant's applications for
health insurance benefits certified that his injury was not work-related was insufficient to rebut the
presumption especially because, in this case, claimant had agreed to termination should he sustain another
occupational injury. Muse v. Pollard Delivery Serv., 15 BRBS 56 (1981).
Where a claimant was injured by another employee during an altercation at work and there was
no evidence that the claimant had social or personal contacts with his assailant outside of their
employment, the Section 20(a) presumption that his injury arose out of employment was not rebutted.
Wiliams v. Healy-Ball-Greenfield, 15 BRBS 489 (1983). Accord Twyman v. Colorado Sec., 14 BRBS
829 (1982).
In a course of employment case, the Board reversed a judge's finding that a claimant's injury
(which occurred when his hand was caught in a planning machine) did not occur in the course of his
employment. Mulvaney v. Bethlehem Steel Corp., 14 BRBS 593 (1981). The Board concluded that the
employer failed to produce specific and comprehensive evidence sufficient to rebut Section 20(a).
In Leone v. Sealand Terminal Corp., 19 BRBS 100 (1986), the Board vacated the ALJ's summary
finding that a medical opinion was "unpersuasive" and therefore could not establish rebuttal of the Section
20(a) presumption, and accordingly remanded the claim for the judge to weigh all the relevant evidence
without the benefit of the presumption. The Board noted that if the judge discredits any opinions on
remand, he must provide a rationale for doing so.
In Neely v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 138 (1986), the Board held
that the judge erred in finding no Section 20(a) rebuttal on grounds that the reporting physicians' opinions
were unsupported by a definite scientific study.
In Cairns v. Matson Terminals, 21 BRBS 252 (1988), the Board stated that if the evidence relied
on to find no causal connection is not sufficient to rebut, and no other evidence in the record is sufficient,
causation is established as a matter of law. The Board held that the employer failed to rebut the
presumption afforded by Section 20(a) and that the employee's non-work-related pre-existing disability,
when combined with his work-related lung disease, produced a fully compensable permanent total
disability. Employer failed to offer any general evidence that the employee's non-work-related condition
did not pre-exist or occur simultaneously with his work-related lung disease. See id.; Bechtel Assocs., P.
C. v. Sweeney, 834 F.2d 1029, 20 BRBS 49 (CRT) (D.C. Cir. 1987).
In Alexander v. Ryan-Walsh Stevedoring Co., 23 BRBS 185 (1990), medical reports which were
prepared up to nineteen months after the work accident did not mention the pain of which claimant is
presently complaining. The Board affirmed, however, that this evidence was insufficient to establish rebuttal
of the Section 20(a) presumption. Also, one doctor stated that he would have difficulty relating claimant's
neck problems to the accident in which the claimant was struck on the hand. This testimony was found to
be insufficient to preclude the possibility that aspects of claimant's accident, other than the striking of his
hand, caused or aggravated his neck condition. Accordingly, the Board found that employer did not
successfully rebut the Section 20(a) presumption and affirmed the judge's finding of causation as to the
claimant's cervical condition.
In Leone v. Sealand Terminal Corp., 19 BRBS 100 (1986), the Board affirmed the ALJ's
utilization of the Section 20(a) presumption to link the claimant's present disability to his pre-existing back
condition. The employer conceded that the claimant's pre-existing back condition was aggravated by the
accident and the Board affirmed the judge's application of the Section 20(a) presumption in deciding the
claim. The Board held, however, that the judge erred in failing to find rebuttal, based on the opinion of one
of the doctors. The Board noted that the judge gave no reason for concluding that a doctor's testimony
was insufficient to support rebuttal and found that even if the ALJ discredits any opinions on remand, he
must provide a rationale for doing so.
20.3.2 Successful Rebuttal
Section 20(a) is rebutted where an employer produces evidence proving no causation. Thus, the
Board held that the judge erred in stating a doctor's testimony was not sufficient to rebut the presumption
where he testified unequivocally that there was no relationship between the claimant's exposure to asbestos
and cancer. Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984).
The Board held in Kier, however, that the judge's error was harmless as he properly relied on the
testimony of two other physicians who treated the claimant to establish a causal relationship. See Sprague
v. Director, OWCP, 688 F.2d 862, 15 BRBS 11 (CRT) (1st Cir. 1982), aff'g Sprague v. Bath Iron
Works Corp., 13 BRBS 1083 (1981) (Section 20(a) rebutted by medical evidence that osteotongelitis
caused by staph infection and not by alleged work-related leg wounds); Hislop v. Marine Terminals Corp.,
14 BRBS 927 (1982) (medical report sufficient to establish heart attack did not arise out of exposure to
carbon monoxide at work rebutted presumption); Orkisz v. U.S. Army Tank Automotive Command, 13
BRBS 948 (1981), aff'd, 708 F.2d 726 (6th Cir. 1982) (medical evidence sufficient to establish that the
claimant did not sustain a compensable injury as a result of a slip and fall at work rebutted Section 20(a));
Clymer v. E-Systems, 13 BRBS 1067 (1981), rev'd mem., 694 F.2d 720 (5th Cir. 1982), cert. denied,
464 U.S. 956 (1983) (physician's testimony that claimant's hypertension and diabetes mellitus would have
occurred regardless of employment and were not aggravated by his work environment sufficient to rebut).
In Sistrunk v. Ingalls Shipbuilding, Inc., ___ BRBS ___ (BRB No. 01-298) (Nov. 26, 2001), a
prima facie case (lung cancer plus the presence of asbestos at the shipyard) did not result in recovery once
the Section 20(a) presumption fell out and the medical evidence showed that there was no asbestosis. In
Sistrunk, the ALJ found that the decedent's death was not caused, contributed to, or aggravated by his
exposure to asbestos at the employer's facility, but was caused by carcinoma, cancer, related to his history
of cigarette smoking. Of particular importance was a medical opinion stating that in the absence of
asbestosis, lung cancer cannot be attributable to exposure to asbestos and that there was no lung
parenchyma available for the evaluation of the presence or absence of asbestosis.
Where there is evidence that the claimant suffered chest pain after a 1973 auto accident up until
one month before he was involved in a work-related shoving match in 1976, and x-rays taken after the
work accident do not reveal any evidence of trauma, there is substantial evidence to support the judge's
findings that the presumption was rebutted. Yarbough v. C & P Tel. Co., 12 BRBS 104 (1980).
The testimony of a claimant's two former co-workers indicating that the claimant had a noticeable
tremor in his hand even prior to his fall at work was sufficient to rebut the presumption of causation where
the claimant never raised an aggravation theory. Sinnott v. Pinkerton's, Inc., 14 BRBS 959 (1982), rev'd
and remanded mem., 744 F.2d 878 (D.C. Cir. 1984).
The Eighth Circuit affirmed an ALJ's determination that an employer introduced substantial
evidence to rebut the Section 20(a) presumption where the claimant's injured eyes and ears were examined
at the time of the injury and found to be functioning normally, although three years after the job-related
incident problems arose. Arrar v. St. Louis Shipbuilding Co., 837 F.2d 334, 20 BRBS 79 (CRT) (8th
Cir. 1988).
Section 20(a) presumption was rebutted in a claim for asbestosis where the judge's finding that the
claimant's lung condition is siderosis and not asbestosis is supported by substantial evidence. O'Berry v.
Jacksonville Shipyards, 21 BRBS 355 (1988).
In Cairns v. Matson Terminals, 21 BRBS 252 (1988), the Board affirmed that an employer is
required to come forward with substantial evidence to rebut the presumption that the claim comes within
the provisions of the LHWCA.
The Board vacated a judge's determination that an employer failed to rebut the presumption
because three doctors maintained that the claimant's cancer was due solely to smoking and not
asbestos exposure. These opinions were specific and comprehensive and thereby severed the connection
between the claimant's injury and his employment. Therefore, the Section 20(a) presumption was rebutted.
The case was remanded to the judge to determine whether the claimant's employment caused his injury
based on the evidence as a whole. Neeley v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS
138 (1986).
20.4 IF SUCCESSFUL, PRESUMPTION NO LONGER AFFECTS OUTCOME
Once the presumption is overcome by the introduction of substantial evidence, the fact-finder must
evaluate all of the evidence and reach a decision based on the record as a whole. Del Vecchio v. Bowers,
296 U.S. 280 (1935); Swinton, 554 F.2d 1075, 4 BRBS 466; Glover v. Aerojet-General Shipyard, 6
BRBS 559 (1977); Norat v. Universal Terminal & Stevedoring Corp., 3 BRBS 151 (1976).
When an employer offers sufficient evidence to rebut the presumption--the kind of evidence a
reasonable mind might accept as adequate to support a conclusion--only then is the presumption overcome;
once the presumption is rebutted it no longer affects the outcome of the case. Noble Drilling Co. v. Drake,
795 F.2d 478 (5th Cir. 1986). In Drake, the Fifth Circuit agreed with the Board's finding that the
employer rebutted the presumption of causation between the job-related stress and the claimant's
aneurysm, as two physicians opined that claimant's intracranial hemorrhage was unrelated to his
work. Id. at 481.
If the evidence is in equipoise, then the presumption has been rebutted and does not control the
result. Brennan v. Bethlehem Steel Corp., 7 BRBS 947 (1978). The presumption is not affirmative but,
consistent with the "bursting bubble" theory, is merely a procedure tool. Del Vecchio, 296 U.S. 280;
Sprague, 688 F.2d 862, 15 BRBS 11 (CRT).
In evaluating the evidence, the fact-finder is entitled to weigh the medical evidence and draw his
own inferences from it and is not bound to accept the opinion or theory of any particular medical examiner.
Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962). It is solely within the discretion of the
judge to accept or reject all or any part of any testimony according to his judgment. Perini Corp. v. Heyde,
306 F. Supp. 1321 (D.R.I. 1969). See Poole v. National Steel & Shipbuilding Co., 11 BRBS 390
(1979); Grimes v. George Hyman Constr. Co., 8 BRBS 483 (1978), aff'd mem., 600 F.2d 280 (D.C. Cir.
1979); Tyson v. John C. Grimberg Co., 8 BRBS 413 (1978).
The Ninth Circuit, affirming a Board holding that the presumption of causation was not overcome
stated, "[e]ven after the substantial evidence is produced to rebut the statutory presumption, the employer
still bears the ultimate burden of persuasion." Parsons Corp. of California v. Director, OWCP, 619 F.2d
38, 12 BRBS 234 (9th Cir. 1980), aff'g Gunter v. Parsons Corp. of California, 6 BRBS 607 (1977). The
District of Columbia Circuit reserved judgment on this issue in Hensley, 655 F.2d 264, 13 BRBS 182.
The Board has held that an ALJ's failure to explicitly apply Section 20(a) is harmless error where
he weighs all the evidence and his decision is supported by substantial evidence. See Reed v. Macke Co.,
14 BRBS 568 (1981); Seaman v. Jacksonville Shipyards, 14 BRBS 148.9 (1981); Roberts v. Bath Iron
Works Corp., 13 BRBS 503 (1981). The Board is not authorized to make findings of fact, however, and
it has been reprimanded for supplementing an inadequate decision. Volpe, 671 F.2d 697, 14 BRBS 538.
See Sprague, 688 F.2d at 868 n.11, 15 BRBS at 18 n.11 (CRT).
For cases involving an analysis after the Section 20(a) was rebutted, see Kier, 16 BRBS 128;
Seaman, 14 BRBS 148.9; Reed, 14 BRBS 568; Hislop, 14 BRBS 927; Roberts, 13 BRBS 503.
20.4.1 Evidence Based on Record as a Whole
If the presumption of compensability is successfully rebutted, the presumption no longer affects the
outcome of the case. The fact-finder must then weigh all the evidence in the record and resolve the fact
at issue based on the evidence. Noble Drilling Co. v. Drake, 795 F.2d 478 (5th Cir. 1986).
In Phillips v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 94 (1988), the Board
affirmed the judge's determination that a claimant's permanently totally disabling breathing disorder was not
causally related to his exposure to asbestos where the judge credited medical evidence indicating that the
claimant had a severe chronic obstructive pulmonary disease, which was caused by prolonged
cigarette smoking, and is not a restrictive lung disease which is symptomatic of asbestosis. This evidence
was sufficient to rebut the Section 20(a) presumption and to establish the lack of causation based on the
record as a whole.
In Sistrunk v. Ingalls Shipbuilding, Inc., ___ BRBS ___ (BRB No. 01-298) (Nov. 26, 2001), a
prima facie case (lung cancer plus the presence of asbestos at the shipyard) did not result in recovery once
the Section 20(a) presumption fell out and the medical evidence showed that there was no asbestosis. In
Sistrunk, the ALJ found that the decedent's death was not caused, contributed to, or aggravated by his
exposure to asbestos at the employer's facility, but was caused by carcinoma, cancer, related to his history
of cigarette smoking. Of particular importance was a medical opinion stating that in the absence of
asbestosis, lung cancer cannot be attributable to exposure to asbestos and that there was no lung
parenchyma available for the evaluation of the presence or absence of asbestosis.
20.4.2 Doubts Resolved in Employee's Favor
In considering the evidence, the fact-finder operates under the statutory policy that all doubtful fact
questions are to be resolved in favor of the injured employee, because the intent of the statute is to place
the burden of possible error on those best able to bear it. Noble Drilling Co. v. Drake, 795 F.2d 478, 481
(5th Cir. 1986); Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968), cert. denied, 395 U.S. 920
(1969). But cf. Maher Terminals v. Director, OWCP, 992 F.2d 1277, 27 BRBS 1 (CRT) (3d Cir.
1993), cert. granted sub nom. Director, OWCP v. Greenwich Colleries, 510 U.S. 1068 (1994) (APA
prohibits application of the true doubt rule to the LHWCA).
This statutory policy places a less stringent burden of proof on the claimant than the preponderance
of the evidence standard which is applicable in a civil suit. Drake, 795 F.2d 478. In Drake, the Fifth
Circuit found that the required causal connection is established by substantial evidence under the LHWCA.
Id. at 481; see Mid-Gulf Stevedores v. Neuman, 462 F.2d 185 (5th Cir. 1972).
Under the "true doubt" rule, if doubt exists in the administrative law judge's mind about the
proper resolution of evidentiary conflicts, that doubt must be resolved in claimant's favor. Heckstall v.
General Port Serv. Corp., 12 BRBS 298, 303 (1980); Melendez v. Bethlehem Steel Corp., 2 BRBS 395
(1975). This statutory policy places a less stringent burden of proof on the claimant than the
"preponderance of the evidence" standard which is applicable in a civil suit. Strachan Shipping Co. v.
Shea, 406 F.2d 521 (5th Cir.), cert. denied, 395 U.S. 921 (1969). But cf. Maher Terminals, 992 F.2d
1277, 27 BRBS 1 (CRT).
The mere presence, however, of conflicting evidence does not require a conclusion that there are
doubts which must be resolved in the claimant's favor. Hislop v. Marine Terminals Corp., 14 BRBS 927
(1982); Heckstall, 12 BRBS 298; Bielo v. Navy Resale Sys., 7 BRBS 1030 (1978). Before applying
the true doubt rule, the judge should attempt to evaluate the conflicting evidence. See Betz v. Arthur
Snowden Co., 14 BRBS 805 (1981).
Although an ALJ errs in applying the "true doubt" rule in his analysis of causation, this error is
harmless as a claimant is entitled to the Section 20(a) presumption and there was not sufficient evidence
of rebuttal. Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988) (Board affirms ALJ's determination that
claimant's lung impairment was due to asbestos exposure while working for employer, rather than a pre-existing obstructive condition).
The circuits are now split on the application of the "true doubt" rule. Under the true doubt rule,
if doubt exists in the judge's mind about the proper resolution of evidentiary conflicts, that doubt must be
resolved in the claimant's favor; however, the mere presence of conflicting evidence does not require a
conclusion in favor of the claimant. Thompson v. Northwest Enviro Servs., 26 BRBS 53 (1992). See
Wright v. Connolly-Pacific Co., 25 BRBS 161, 168 (1991); see also Heckstall v. General Port Serv.
Corp., 12 BRBS 298, 303 (1980).
The Third Circuit in Maher Terminals, 992 F.2d 1277, 27 BRBS 1 (CRT), has held that the
Administrative Procedure Act (APA) prohibits application of the true doubt rule to the LHWCA. In Maher
Terminals, the Third Circuit held that the claimant must prove that her husband's death was related to his
work injury by a preponderance of the evidence. In Avondale Shipyards v. Kennel, 914 F.2d 88 (5th
Cir. 1990), however, the Fifth Circuit affirmed the judge's use of the true doubt rule in favor of the
claimant. In Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir. 1986), the Fifth Circuit stated
that the judge is required to resolve all doubts, factual as well as legal, in favor of the injured worker in
order to place the burden of possible error on those best able to bear it. See Jones v. Director, OWCP,
977 F.2d 1106 (7th Cir. 1992).
The Ninth Circuit has cogently stated the logical consequence of the established rule of doubt-resolution:
Even after the substantial evidence is produced to rebut the statutory
presumption [of liability] the employer still bears the ultimate burden of
persuasion. This rule does not follow from the presumption in 33 U.S.C.
§ 920(a), although the presumption reflects the overall policy of the Act.
The rule follows from the overall humanitarian statutory policy that all
doubtful questions of fact be resolved in favor of the injured employee.
Parsons Corp. of California v. Director, OWCP, 619 F.2d 38, 41 (9th Cir. 1980).
20.5 APPLICATION OF SECTION 20(a)
20.5.1 Causal Relationship of Injury to Employment
The Section 20(a) presumption also applies to the issue of whether an injury arose in the course
of employment. Travelers Ins. Co. v. Donovan, 221 F.2d 886 (D.C. Cir. 1955) (citing O'Leary v.
Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951)); see Oliver v. Murry's Steaks, 17 BRBS 105 (1985);
Mulvaney v. Bethlehem Steel Corp., 14 BRBS 593 (1981). Moreover, if an injury or death occurs during
the course of employment, the presumption that the injury arises out of the employment is strengthened.
Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968) (en banc); Butler v. District Parking Management
Co., 363 F.2d 682 (D.C. Cir. 1966). Substantial evidence supported the finding of a causal connection
between employment and intracranial hemorrhage. The Fifth Circuit approved of the Board's standard
regarding the Section 20(a) presumption enunciated in Kelaita. Noble Drilling Co. v. Drake, 795 F.2d
478, 19 BRBS 6 (CRT) (5th Cir. 1986).
In Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988), the Board would not address
the issue regarding subsequent supervening injury because the employer did not raise the issue before the
judge. The employer asserted the issue was raised during the formal hearing, but the record revealed that
the parties merely offered evidence relevant to the issue.
Under the aggravation rule, if a claimant's work played any role in the manifestation of his
underlying arteriosclerosis, then the non-work relatedness of the disease and the fact that his chest pains
could have appeared anywhere are irrelevant--the entire resulting disability is compensable. Cairns v.
Matson Terminals, 21 BRBS 252 (1988).
In Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92 (1991), a physician testified that the
claimant's prior cervical condition "did not play a significant role in his current difficulties." The Board held
that this testimony did not sever the potential causal connection between the claimant's harm and his
employment because the physician did not state that the claimant's work-related injury and prior surgery
played no role in causing his present condition. Thus, the Board affirmed the judge's finding that the
employer failed to establish rebuttal of the Section 20(a) presumption, and further held that causation was
established.
The weight of the evidence supported a ALJ's finding in Merrill v. Todd Pacific Shipyards Corp.,
25 BRBS 140 (1991) that a claimant aggravated his chronic back condition which began due to his work
injury. One physician opined that the subsequent incident was a new injury; this opinion was accorded little
weight, however, where that physician did not establish that the claimant's disability was unrelated to his
earlier work injury. Accordingly, the Board affirmed the judge's finding that the claimant's condition was
causally related to his employment and therefore compensable.
In Uglesich v. Stevedoring Services of America, 24 BRBS 180 (1991), the claimant's treating
physician testified that the claimant's right knee condition was the natural unavoidable result of the previous
injury to his left knee. Specifically, the claimant's treating physician testified that although the claimant had
pre-existing arthritis of the right knee, the fact that the claimant favored his left leg and favored his right knee
exacerbated the symptoms of his right knee. The Board affirmed the judge's finding that causation existed
for the condition of the claimant's right knee condition as it resulted from the claimant's previous left knee
injury. See Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966).
20.5.2 Arising Out of and in the Course of Employment
It is reasonable for a judge to find medical evidence that a claimant's injury was unrelated to
employment to be inconclusive where the physician acknowledges that a relationship between injury and
employment was a possibility. MacDonald v. Trailer Maine Transp. Corp., 18 BRBS 259 (1986).
Moreover, any error was harmless where the judge properly weighed all of the medical evidence and
concluded that causation was established.
Where a claimant embarks on a personal mission, he severs the employment nexus. Oliver v.
Murry's Steaks, 21 BRBS 348 (1988). In Oliver, the Board affirmed the ALJ's determination that a
claimant's injury did not arise in the course of employment.
A prima facie claim must allege an injury arising out of and in the course of employment; mere
existence of a physical impairment is plainly insufficient. Once the presumption applies to link the injury to
the employment, the employer must produce substantial countervailing evidence to rebut the work-relatedness of an injury. If the presumption is rebutted, the judge must weigh all the evidence and resolve
the causation issue on the record as a whole. Care v. Washington Metro. Area Transit Auth., 21 BRBS
248 (1988). But cf. Maher Terminals, 992 F.2d 1277, 27 BRBS 1 (CRT) (APA prohibits application of
true doubt rule to LHWCA).
In Peterson v. Columbia Marine Lines, 21 BRBS 299 (1988), the Board rejected the employer's
argument that no causation was established, where that argument hinged on the fact that the doctor on
whom the judge relied to find causation was unable to identify the specific chemicals which produced the
claimant's chemical hypersensitivity. Instead, the Board found that causation was established because the
doctor had indicated that the claimant's symptoms were due to the cumulative effect of chemical exposures
over many years and that any or all of the chemicals to which he was exposed could have played a part
in his symptomatology.
In Willis v. Titan Contractors, 20 BRBS 11 (1987), the Board reversed the finding of the judge
that the claimant's injury did not occur in the course of his employment. The judge found that the claimant's
use of the work equipment on which he was injured was unauthorized and therefore concluded that the
claimant was not acting in the course of his employment when he was injured.
The Section 20(a) presumption applies to the issue of whether an injury arises in the course of
employment. The fact that an activity is not authorized is not sufficient alone to sever the
connection between the injury and the employment. Willis, 20 BRBS 11. In Willis, the employer did
not present any evidence that the claimant's work activity at the time of his injury was unrelated to his
employment. Since there was no evidence of record directly controverting the presumption, the claimant's
injury arose in the course of his employment as a matter of law. Willis, 20 BRBS 11.
In Mattera v. M/V Mary Antoinette, Pacific King, Inc., 20 BRBS 43 (1987), the Board held that
an injured employee who suffered a back injury while undergoing rehabilitation testing in connection with
his work-related arm injury, had an injury which arose in the course of his employment.
<STRONG>20.5.3 Medical Bills
The Board has held that Section 20(a) is applicable to medical bills. Jenkins v. Maryland
Shipbuilding & Dry Dock Co., 6 BRBS 550 (1977), rev'd on other grounds, 594 F.2d 404, 10 BRBS 1
(4th Cir. 1979).
When a claimant sustains an injury at work which is followed by the occurrence of a subsequent
injury or aggravation outside work, the employer is liable for the entire resultant disability and for medical
expenses due to both injuries if the subsequent injury is the natural and unavoidable result of the original
work injury. If the subsequent progression of the condition, however, is not a natural or unavoidable result
of the work injury, but is the result of an intervening cause, the employer is relieved of liability for disability
attributable to the intervening cause. Colburn v. General Dynamics Corp., 21 BRBS 219 (1988).
The Fourth Circuit has held that the presumption does not relieve the claimant of his burden of
proving the elements of his claim for medical benefits and reversed the Board's requirement that the
employer prove with substantial evidence that the claimant's private physician did not file a report within
Section 7(d). Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404, 10 BRBS 1 (4th Cir.
1979), rev'g 6 BRBS 550 (1977). See Shahady v. Atlas Tire & Marble, 13 BRBS 1007, 1014 (1981),
rev'd on other grounds, 682 F.2d 968 (D.C. Cir. 1982), cert. denied, 459 U.S. 1146 (1983) (Section
20(a) does not apply to Section 7).
20.6 SECTION 20(a) DOES NOT APPLY
20.6.1 Fact of Injury
(See Topic 20.2.2, supra.)
20.6.2 Jurisdiction
The case law is divided as to whether the Section 20(a) presumption applies to "jurisdiction."
Courts which apply the Section 20(a) presumption to the Issue of Jurisdiction.
In Cardillo v. Liberty Mutual. Ins. Co., 330 U.S. 469 (1947), the Supreme Court stated:
We are aided here, of course, by the provision of § 20 of the [LHWCA] that, in
proceedings under that Act, jurisdiction is to be 'presumed, in the absence of substantial
evidence to the contrary'- a provision which applies with equal force to proceedings under
the District of Columbia Act. And the Deputy Commissioner's findings as to jurisdiction
are entitled to great weight and will be rejected only where there is apparent error. ... His
conclusion that jurisdiction exists in this case is supported both by the statutory provisions
and by the evidence in the record. The jurisdiction of the Deputy commissioner to
consider the claim in this case rests upon the statement in the District of Columbia Act that
it 'shall apply in respect to the injury or death of an employee of an employer carrying on
any employment in the District of Columbia, irrespective of the place where the injury or
death occurs, ... .
In its actual holding the Court stated, "And since the Deputy Commissioner had jurisdiction over
the case, the resulting award of compensation should have been sustained."
[ED. NOTE: There is often confusion between "coverage" (also referred to as "jurisdiction in this
work.) and "subject matter jurisdiction." To some extent this is apparent in Cardillo. See also
Employers Mutual Liability Insurance Co. v. Arrien, 244 F. Supp. 110 (N.D.N.Y. 1965) (distinction
between presumption of coverage and presumption of jurisdiction); Atlantic Stevedoring Co. v.
O'Keeffe, 220 F. Supp. 881 (S.D. Ga. 1963), rev'd on other grounds, 354 F.2d 48 (5th Cir. 1965).
In O'Keeffe, the district court judge stated: "[He was] ... inclined to the belief that there is a
distinction between presumption of coverage and presumption of jurisdiction. Jurisdiction must be
first established, and when once shown, then, and only then, does the coverage presumption become
effective. ... [I]f the Deputy Commissioner assumed jurisdiction of a case over which, from the
facts in the record, he obviously had no jurisdiction, no presumption in the statute could create or
confer jurisdiction."). "Subject matter jurisdiction" is a court's authority to hear a claim pursuant
to Congressional authority. "Coverage," rather, refers to issues of situs and status. For more on
this, see Topic 1.2 "Subject Matter Jurisdiction."]
Subsequently some courts began to cite Cardillo for the proposition that the Section 20(a)
presumption applies to jurisdiction. See e.g., Edgerton v. Washington Metropolitan Area Transit Authority
(WMATA), 925 F.2d 422 (D.C. Cir. 1991); George v. Director, OWCP, 86 F.3d 1162 (9th Cir. 1996)
(Table) (Applied § 20(a) presumption and placed burden on employer to show that river was not
navigable.).
[ED. NOTE: The George case is a prime example of the confusion in this area. In George, an
unreported decision, the Ninth Circuit stated:
Believing the question of navigability to be jurisdictional, the BRB found that this
presumption did not apply. In fact, because traditional admiralty jurisdiction is
broader than jurisdiction under the LHWCA, there is admiralty jurisdiction in a case
involving an accident on the American River even if it is not navigable for the
purposes of the LHWCA. Therefore, the presumption of § 20 applies to navigability.]
In Edgerton v. WMATA, the District of Columbia Circuit reversed a Board decision that upheld
the ALJ decision that the claimant had failed to establish jurisdiction under the District of Columbia
Workers' Compensation Act (DCWCA) where neither party presented evidence on jurisdiction. The
circuit court stated, that the "ALJ failed to recognize that the burden of disapproving the jurisdiction of the
[DCWCA] rests upon the party opposing the claim...This presumption of jurisdiction 'applies with equal
force to proceedings under the [DCWCA]." The circuit court noted that the employer probably
"possessed records indicating precisely what routes [the claimant] drove at the relevant times; WMATA's
failure to introduce any such evidence, therefore, supports an inference pursuant to the 20(a) presumption
that the actual facts bolstered [his] claim of frequent work-related District contacts."
In Davis v. Department of Labor and Industries of Washington, 317 U.S. 249 (1942), a case
addressing state versus federal workers compensation selection, the Court, in dicta had stated, "... we are
aided by the provision of the federal act,...Section 20, which provides that in proceedings under that act,
jurisdiction is to be 'presumed, in the absence of substantial evidence to the contrary.'"
Other courts have indicated a presumption may apply to jurisdiction. For example, in Travelers
Ins. Co. v. Shea, 382 F.2d 344 (5th Cir. 1967), the Fifth Circuit stated, "In the absence of substantial
evidence to the contrary, we must presume that the claim is covered by the Act. 33 U.S.C.A. § 920." The
Fifth Circuit then cited O'Leary v. Puget Sound Bridge & Dry Dock Co., 349 F.2d 571 (9th Cir. 1965),
for this pronouncement. However, when one reads O'Leary, that case states, "The statutory presumption
of § 20 (33 U.S.C. § 920(a)) cannot, as appellant urges, bring an injury within the coverage of the Act
under the admitted facts involved here... ."
In New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031 (5th Cir. 1981), that court
stated, "The Act itself contains a statutory presumption that in the absence of substantial evidence to the
contrary, the claim is within the provisions of the Act. 33 U.S.C.A. § 920. This presumption of coverage
was first used in connection with the issue of jurisdiction, but has been extended to include the nature and
extent of the injury." See also, Army Air Force Exchange v. Greenwood, 585 F. 2d 791 (5th Cir. 1978)
(" The judicial policy has long been to resolve all doubts in favor of the employee and his family and to
construe the Act in favor of the employee for whose benefits it is primarily intended."); Tampa Ship Repair
v. Director, 535 F.2d 936, 938 (5th Cir. 1976) (The policy of the LHWCA has been "to resolve doubtful
questions of coverage in the Claimant's favor."); Mungia v. Chevron U.S.A. Inc, 999 F.2d 808, n. 2 (5th
Cir. 1993)("It should be noted that jurisdiction is presumed under the Act. The presumption is, of course,
rebuttable, but the burden of establishing jurisdiction (or the lack thereof) does not lie with the claimant.");
Saipan Stevedore Co. Inc. v. Director, OWCP, 133 F.3d 717 (9th Cir. 1997) (Notes with approval Fifth
Circuit holding in Turner that presumption of coverage applies to jurisdictional issues and that this reasoning
is consistent with the concerns that led to the passage of the LHWCA.); Director, OWCP v. National Van
Lines (Riley), 613 F.2d 972, 11 BRBS 298 (D.C. Cir. 1979), aff'g Riley v. Eureka Van & Storage Co.,
1 BRBS 449 (1975), cert. denied, 448 U.S. 907 (1980) (D.C. circuit court stated that it was "bound by
the congressionally mandated presumption of jurisdiction ... which applies with equal force to proceedings
under the District of Columbia Act.").
[ED. NOTE: In Watkins v. Newport News Shipbuilding & Dry Dock Co., ___ BRBS ___ (BRB No.
01-0538) (March 5, 2002), the Board stated, "We need not address the general scope of the Section
20(a) presumption in coverage cases, as the courts have held that the Section 20(a) presumption is
not applicable to the legal interpretation of the Act's coverage provisions. See Fleischmann v.
Director, OWCP, 137 F.3d 131, 32 BRBS 28 (CRT) (2d Cir. 1998), cert. denied, 525 U.S. 981
(1998); Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 6 BRBS 229 (5th Cir.),
cert. denied, 434 U.S. 903 (1977); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 264, 4
BRBS 304 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977)." See also, Morrissey v. Kiewit-Atkinson-Kenny, ___ BRBS ___ (BRB No. 01-0465) (February 8, 2002), wherein the Board found
that it did not need to address the claimant's contention that the Section 20(a) presumption aids him
in establishing that the Act's coverage provisions are met. It is clear that the material facts in this
case are undisbuted and that the coverage determination presents a legal issue."]
Courts which do not apply Section 20(a) to the Issue of Jurisdiction
However, all courts do not apply the Section 20(a) presumption to jurisdiction. See Fusco v. Perini
N. River Assocs., 622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981).
The situs requirement must also be met without the benefit of the presumption. Boughman v. Boise
Cascade Corp., 14 BRBS 173 (1981). See Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 4
BRBS 156 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6
BRBS 150 (1977) (In order to be covered under the LHWCA, claimant must satisfy both the status
requirement of § 2(3) and the situs requirement of § 3(a).); Stockman v. John T. Clark & Son, Inc., 539
F.2d 264, 4 BRBS 304 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977) (presumption does not apply
to questions of legal interpretation such as coverage under the LHWCA).
With rare exception, Dorn v. Safeway Stores, Inc., 18 BRBS 178 (1986), the Board has
consistently held that the Section 20(a) presumption that a claim comes within the provisions of the
LHWCA is inapplicable to the threshold issues of jurisdiction. See Sedmak v. Perini North River
Associates, 9 BRBS 378 (1978); aff'd sub nom. Fusco v. Perini North River Associates, 601 F.2d 1111
(2d Cir. 1980) (decision on remand); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 1111 (2d Cir.
1976), aff'd sub nom. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977); George v.
Lucas Marine Construction, 28 BRBS 230 (1994) ("the Board has determined that claimants must satisfy
both the status and situs tests without benefit of the [20(a)] presumption."), overruled at 86 F.3d 1162 (9th
Cir. 1996) (Table) (Applied § 20(a) presumption and placed burden on employer to show that river was
not navigable.); Wynn v. Newport News Shipbuilding and Dry Dock Company, 16 BRBS 31 (1983);
Boughman v. Boise Cascade Corporation, 14 BRBS 173 (1981); Holmes v. Seafood Specialist Boat
Works, 14 BRBS 141 (1981); Palma v. California Cartage Co., 18 BRBS 119 (1986); Sheridon v. Petro-Drive, Inc., 18 BRBS 57 (1986).
In holding Section 20(a) inapplicable to status as a maritime employee, the Board has reasoned
that jurisdiction is a threshold issue which must be settled before the presumption of coverage applies. In
order to find jurisdiction, the evidence must establish that the claimant was engaged in "maritime
employment" in accordance with Section 2(3) of the LHWCA (status) and that he was injured "upon
navigable waters" in accordance with Section 3(a) (situs). Fusco v. Perini N. River Assocs., 622 F.2d
1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). The situs requirement must
also be met without the benefit of the presumption. Boughman v. Boise Cascade Corp., 14 BRBS 173
(1981). See Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 4 BRBS 156 (2d Cir. 1976), aff'd
sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977) (In order to be
covered under the LHWCA, claimant must satisfy both the status requirement of § 2(3) and the situs
requirement of § 3(a).); Stockman v. John T. Clark & Son, Inc., 539 F.2d 264, 4 BRBS 304 (1st Cir.
1976), cert. denied, 433 U.S. 908 (1977) (presumption does not apply to questions of legal interpretation
such as coverage under the LHWCA).
The Board in Sedmak distinguished and rejected a contrary holding in Overseas African
Construction Corp. v. McMullen, 500 F.2d 1291 (2d Cir. 1974), and followed the later Second Circuit
case, Dellaventura, 544 F.2d 35. The Board also determined that in McMullen the Second Circuit had
held that a prima facie case of jurisdiction had been made. Thus, the court did not totally rely on the
Section 20(a) presumption.
[ED. NOTE: The conflicting case law in this area poses a dilemma. On the one hand is the
jurisprudence holding that the Section 20(a) presumption does apply to "jurisdiction." It draws
its strength from the wording of Section 20(a) itself, although that section does not specifically
mention "jurisdiction." On the other hand, there is jurisprudence that recognizes "jurisdiction as
an issue that may be raised at any time, even sua sponte. That line of thought argues that a tribunal
of limited jurisdiction such as that involving a longshore case, must have an affirmative basis for
asserting jurisdiction, and thus the burden of proof should rest on the parties seeking to invoke the
proceeding. For support, it notes Northeast Marine Terminal, Inc. v. Caputo, 432 U.S. 249 (1977)
wherein the Supreme Court held that in order to invoke jurisdiction under the LHWCA, the
claimant must meet both a status and situs requirement. Where the middle ground will be
determined between substantive Sections 2 and 3 of the LHWCA, and procedural Section 20,
remains to be determined.]
20.6.3 Nature and Extent of Injury
Section 20(a) presumption does not aid the claimant in establishing the nature and extent of
disability. Holton v. Independent Stevedoring Co., 14 BRBS 441 (1981); Duncan v. Bethlehem Steel
Corp., 12 BRBS 112 (1979). The Board noted that a claimant is fully able to muster evidence on this
point. See Brocato v. Universal Maritime Serv. Corp., 9 BRBS 1073 (1978); Davis v. George Hyman
Constr. Co., 9 BRBS 127 (1978), aff'd in relevant part sub nom. Davis v. U.S. Dep't of Labor, 646 F.2d
609 (D.C. Cir. 1980); Hunigman v. Sun Shipbuilding & Dry Dock Co., 8 BRBS 141 (1978).
20.6.4 Loss of Wage-Earning Capacity
The Board has found no authority or case law to support a presumption in favor of the claimant
with respect to the issue of loss of wage-earning capacity. Leach v. Thompson's Dairy, Inc., 6 BRBS 184
(1977). Therefore, the Section 20(a) presumption is not applicable to the issue of the claimant's loss of
wage-earning capacity. Leach v. Thompson's Dairy, Inc., 13 BRBS 231 (1981).
20.7 SECTION 20(b) PRESUMPTION THAT NOTICE OF CLAIM HAS BEEN GIVEN
Section 20(b) 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 --
(b) that sufficient notice of the claim was given.
33 U.S.C. § 920(b).
The Board has taken the position that Section 20(b) applies to Section 13, which sets forth the
requirements for filing of the notice of injury with the employer. See Jackson v. Ingalls Shipbuilding Div.,
Litton Sys., 15 BRBS 299 (1983); Carlow v. General Dynamics Corp., 15 BRBS 115 (1982), overruling
Kirkland v. Air America, Inc., 13 BRBS 1108 (1981); Mattox v. Sun Shipbuilding & Dry Dock Co., 15
BRBS 162 (1982).
In Horton v. General Dynamics Corp., 20 BRBS 99 (1987), the Board found that the presumption
of Section 20(b) is applicable to Section 13, as it refers to notice of the claim. Therefore, the employer
must establish that the claim was filed more than two years after awareness. The Board also stated,
however, that the Section 20(b) presumption does not apply with regard to Section 12. Thus, claimant has
the burden of establishing sufficient notice of the injury. In Horton, no credible evidence of record
established the claimant's date of awareness, thereby giving the claimant the benefit of Section 20(b). Thus,
the ALJ's denial of benefits pursuant to Section 13 must be reversed, as employer did not establish that
the claim was filed more than two years after awareness.
Several of the circuit courts, however, disagree with this position and have held Section 20(b)
applicable to Section 12. See, e.g., Stevenson v. Linens of the Week, 688 F.2d 93 (D.C. Cir. 1982),
rev'g 14 BRBS 304 (1981); United Brands Co. v. Melson, 594 F.2d 1068, 1072, 10 BRBS 494 (5th
Cir. 1979), aff'g 6 BRBS 503 (1977). See Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d
286, 14 BRBS 705 (3d Cir. 1982), rev'g 13 BRBS 1052 (1981), where the Third Circuit, assuming
without deciding that the Section 20(b) presumption was applicable to Section 12 notice of injury, stated
that the claimant's prior application for non-occupational sickness benefits was sufficient to rebut the
presumption.
The Board affirmed the ALJ's application of the Section 20(b) presumption to the issue of the
employer's knowledge under Section 12 in a DCW Act case and his finding that the presumption was not
rebutted. Forlong v. American Sec. & Trust Co., 21 BRBS 155 (1988).
the Section 20(b) presumption, part of the employer's burden is to establish that it filed in
compliance with Section 30 before it can prevail pursuant to Section 13(a). McQuillen v. Horne Bros.,
Inc., 16 BRBS 10 (1983); Fortier, 15 BRBS 4; Peterson v. Washington Metro. Area Transit Auth., 13
BRBS 891 (1981). An exception to this rule has been recognized, however, in those instances where the
Section 13 limitation period has run prior to the time that the employer gains knowledge of the injury for
Section 30 purposes. Speedy v. General Dynamics Corp., 15 BRBS 352, 354 n.4 (1983); Keatts v.
Horne Bros., Inc., 14 BRBS 605, 607 (1982).
Section 20(b) affords a claimant with the presumption that, in the absence of substantial evidence
to the contrary, sufficient notice of the injury and the claim have been given to the employer. This section
is used in determining whether a claimant has complied with the filing requirements of Sections 12 and 13.
See Shaller v. Cramp Shipbuilding & Drydock Co., 23 BRBS 140 (1989) (Section 20(b) applies to
Section 12); Horton v. General Dynamics Corp., 20 BRBS 99, 102 (1987) (Section 20(b) applies to
Section 13). In Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990), the Board
noted in a footnote that to the extent Horton holds that Section 20(b) is inapplicable to Section 12, it has
been overruled by Shaller.
In Kulick v. Continental Baking Corp., 19 BRBS 115 (1986), a DCW Act claim, the Board,
governed by the pre-1984 Amendment LHWCA, affirmed the judge's finding that the employer rebutted
the Section 20(b) presumption that the employer had knowledge of the injury. The Board noted its position
that it only applies Section 20(b) to Section 13, but as the case arose in the District of Columbia Circuit,
the Board applied the holding of the District of Columbia Circuit in Stevenson v. Linens of the Week,
688 F.2d 93 (D.C. Cir. 1982), which found that the Section 20(b) presumption applies to Section 12.
20.8 SECTION 20(c) PRESUMPTION THAT EMPLOYEE WAS NOT INTOXICATED
(See Topic 3.2, supra.)
20.9 SECTION 20(d) PRESUMPTION THAT EMPLOYEE DID NOT INTENTIONALLY INJURE SELF OR OTHER
(See Topic 3.2, supra.)