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 Printer-Friendly Version
No. 00-1815
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH
CIRCUIT
______________
NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY
Petitioner
v.
HERBERT E. WINN
and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents
______________
On Petition for Review of a Final Order
of the
Benefits Review Board
______________
BRIEF FOR FEDERAL RESPONDENT, DIRECTOR,
OFFICE OF
WORKERS’ COMPENSATION PROGRAMS
______________
HENRY L. SOLANO
Solicitor of Labor
CAROL A. DE DEO
Associate Solicitor
MARK REINHALTER
Senior Attorney
GEOFFREY K. COLLVER
U.S. Department of Labor
200 Constitution Ave., NW,
Suite S-4325
Washington, D.C. 20210
(202) 219-5439 ext. 133
Attorneys for the Director, OWCP
TABLE OF CONTENTS
Statement of Subject Matter and Appellate
Jurisdiction......................................... 1
Table of
Authorities........................................................................................
iii
Issue
Presented............................................................................................
3
Statement of the
Case...................................................................................
3
Statement of the
Facts...................................................................................3
Summary of
Argument.....................................................................................
8
Argument:
SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDINGS THAT THE
EMPLOYER FAILED TO ESTABLISH THAT WINN SUFFERED FROM ANY PREEXISTING PERMANENT
PARTIAL DISABILITY PRIOR TO HIS DIAGNOSIS OF ASBESTOSIS THAT MATERIALLY AND
SUBSTANTIALLY CONTRIBUTED TO HIS CURRENT COMPENSABLE DISABILITY.
A. Standard of
Review...................................................................................
9
B. The Standard for Section 8(f) Relief
.............................................................11
C. Substantial Evidence Supports the ALJ's Factual Findings That the
Employer Failed to Prove That Mr. Winn Suffered From an Existing Permanent
Partial Disability That Materially and Substantially Contributed to His
Ultimate
Disability...................................................................................................
14
i
Contribution.............................................................................................
15
i
ii Substantial Evidence Supports the ALJ's Finding that the Employer
Failed to Satisfy the Preexisting Permanent Disability Element for Section 8(f)
Relief ........................23
Conclusion................................................................................................
25
Request for Oral
Argument...........................................................................
26
Certificate of Compliance
Certificate of Service
ii
TABLE OF AUTHORITIES
FEDERAL CASES
American Mutual Insurance Co. v. Jones,
426 F.2d 1263 (D.C.
Cir.
1970)...................................................................... 12
Bath Iron Works v. Director, OWCP [Reno],
136 F.3d 34 (1st
Cir.
1998)...........................................................................
12
Betty B. Coal Co. v. Director, OWCP,
194 F.3d 491 (4th Cir.
1999).........................................................................
11
C&P Telephone Co. v. Director, OWCP,
564 F.2d 503 (D.C.
Cir. 1977)....................................................................
13
Cf. Banks v. Chicago Grain Trimmers Ass’n,
390 U.S.459
(1968)....................................................................................
21
Chemical Manufacturers Ass’n v. NRDC,
470 U.S. 116
(1985)....................................................................................11
Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837
(1984).................................................................................
11
Clinchfield Coal Co. v. Director, OWCP [Harris],
149 F.3d 307
(4th Cir.
1998)........................................................................
23
Consolidated Edison Co. v. NLRB,
305 U.S. 197
(1938).................................................................................
10
Copper Stevedoring, Inc. v. Washington,
556 F.2d 268 (5
th Cir.
1977).................................................................... 21
Director, OWCP v. Newport News & Dry Dock Co., (Parkman)
122 F.3d 1060 (table) (4 th Cir.
1997)...................................................... 20
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
(Carmines), 138 F.3d 134 (4th Cir.
1998)......................................................7
iii
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
(Harcum
I), 8 F.3d 175 (4th Cir.
1993)..................................................11, 12, 15
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
(Langley),
676 F.2d 110 (4 th Cir.
1982)............................................................ 12
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
[Carmines],
138 F.3d 134 (4th Cir.
1998)...................................................................... 8
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
[Harcum
I],
8 F.3d 175 (4th Cir.
1993)...........................................................................
8
Director, OWCP v. Sun Ship Inc. [Ehrentraut],
150 F.3d 288 (3
rd Cir.
1998)..................................................................... 12
Hobbs v. Clinchfield Coal Co.,
45 F.3d 819 (4th
Cir.
1995).........................................................................
22
Humphries v. Director, OWCP,
834 F.2d 372 (4 th
Cir. 1987),
cert. denied, 485 U.S. 1028
(1988).............................................................10
Lawson v. Suwannee Fruit & S.S. Co.,
336 U.S. 198 (1949)
...................................................................................11
Maryland Shipbuilding and Drydock Co. v. Director, OWCP,
618
F.2d 1082 (4 th Cir.
1980)...................................................................... 10
Migliorini v. Director, OWCP,
898 F.2d 1292 (7th
Cir.
1990)...................................................................... 22
Newport News Shipbuilding & Dry Dock Co. v. Harris,
934
F.2d 548 (4 th Cir.
1991)...................................................................... 12
Newport News Shipbuilding & Dry Dock Co. v. Howard,
904
F.2d 206 (4 th Cir.
1990)......................................................................11
iv
Newport News Shipbuilding & Dry Dock Co. v. Tann,
841
F.2d 540 (4 th Cir.
1988)...................................................................... 9
Plaquemines Equipment & Machine Co. v. Neuman,
460 F.2d
1241 (5th Cir.
1972).................................................................... 21
Schrader v. Califano,
608 F.2d 114 (4 th Cir.
1979)...................................................................... 22
Skipper v. French,
130 F.3d 603 (4 th Cir.
1997)................................................................... 24
Universal Camera Corp. v. NLRB,
340 U.S. 474
(1947)................................................................................10
Zapata Haynie Corp. v. Barnard,
933 F.2d 256 (4 th
Cir.
1991)......................................................................11
FEDERAL STATUTES
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§
901-950
(1994)......................................................................................................
1
§§ 8(c)(1)-(20)
.........................................................................................13
§
8(c)(23)............................................................................................
2, 13
§
8(f).........................................................................................
2, 11, passim
§ 8
(f)(1)..................................................................................................15
§
19(c)-(d)................................................................................................
2
§
21(b)(3)..............................................................................................
2, 9
§
21(c)...................................................................................................
2, 3
v
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH
CIRCUIT
______________
No. 00-1815
______________
NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY
Petitioner
v.
HERBERT E. WINN
and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents
______________
On Petition for Review of a Final Order
of the
Benefits Review Board
______________
BRIEF FOR FEDERAL RESPONDENT, DIRECTOR,
OFFICE OF
WORKERS’ COMPENSATION PROGRAMS
______________
STATEMENT OF SUBJECT MATTER AND
APPELLATE
JURISDICTION
This case arose from a claim
filed by Herbert E. Winn (“the claimant") for workers’
compensation disability benefits under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §§ 901-950 (1994) (the “LHWCA"
or the “Act") against Newport News Shipbuilding & Dry Dock Co.,
(the “employer" or “NNS") seeking compensation under 33
U.S.C. § 908(c)(23), for the occupational disease of asbestosis
which was not diagnosed until after Winn voluntarily retired from employment.
The employer filed a timely application with the district director requesting
that its liability to pay compensation for the claimant’s permanent
pulmonary impairment be limited to 104 weeks of benefits, pursuant to section
8(f) of the Act, 33 U.S.C. § 908(f).
The case was presented to an
administrative law judge (the “ALJ") who had jurisdiction under
section 19(c)-(d) of the Act, 33 U.S.C. § 919(c)-(d). The Benefits Review
Board (the “Board") had jurisdiction of the employer’s timely
appeal of the ALJ’s denial of its application for section 8(f) relief,
pursuant to section 21(b)(3), 33 U.S.C. § 921(b)(3).
Section 21(c) of the Act, 33
U.S.C. § 921(c), vests the court of appeals for the circuit in which a
worker’s injury occurred with jurisdiction to review a “final order
of the Board," upon a petition for review filed within sixty days after
issuance of the order by a “person adversely affected or aggrieved."
In the present case, the claimant’s injury was sustained in the course of
employment performed in Virginia, within this Court’s territorial
jurisdiction. The Board issued its final order on May 9, 2000. The employer
filed its petition for review with this Court on June 26, 2000, within the
sixty
2
days allowed by section 21(c). Thus, this Court has subject matter and
appellate jurisdiction under section 21(c), 33 U.S.C. § 921(c).
ISSUE PRESENTED
Whether substantial evidence
supports the ALJ’s finding that the employer failed to bear its burden to
prove that claimant’s alleged chronic obstructive pulmonary disease (COPD)
constituted a preexisting permanent partial disability which materially and
substantially contributed to the claimant’s ultimate level of impairment
as required by section 8(f).
STATEMENT OF THE CASE
The Director accepts the employer’s statement of the case.
Petitioner’s Brief (“PB") at 3-4.
STATEMENT OF THE FACTS
The claimant was employed by NNS
as a helper, handyman and machinist between 1960 and 1986. JA 15. The employer
and claimant stipulated that, throughout his course of employment with NNS, he
was continuously exposed to airborne asbestos dust and fibers. JA 16. The
parties additionally stipulated that on April 18, 1997, Dr. James V. Scutero
diagnosed the claimant with asbestosis, and as a result of that disease, the
claimant had a 20% permanent impairment rating as specified under the classes
of impairment set forth in the AMA Guides to the Evaluation of
3
Permanent Impairment (4th Edition). JA 17.
Accordingly, the parties stipulated that the claimant was entitled to permanent
partial disability benefits at the rate of $53.41 per week from April 18, 1997,
through the present and continuing. Id. at 17. Further, the employer
agreed to pay all past, present and future medical bills related to the
claimant’s asbestosis treatment and surveillance. JA at 17-18.
Administrative Law Judge Richard
K. Malamphy accepted the parties’ stipulations in a Decision and Order
dated April 2, 1999. JA 38. In that Decision and Order, the ALJ also considered
the employer’s request for section 8(f) relief. JA 33-38. The ALJ found
that the employer failed to establish that the claimant’s alleged chronic
obstructive pulmonary disease (COPD) constituted a preexisting permanent
partial disability, and further, that the alleged COPD did not materially and
substantially contribute to his ultimate level of disability. Id.
Accordingly, the ALJ denied the employer’s request for section 8(f)
relief. Id.
In its effort to convince the ALJ
of its entitlement to section 8(f) relief, the employer relied on the opinions
of Drs. James Reid, Charles Donlan and R.J. Guardia. JA 9-12. The
employer’s in-house physician, Dr. Reid, opined that “by 1985, Mr.
Winn was known to have COPD with approximately 10% impairment...[t]hus, if
Mr. Winn did not have COPD,
4
and only his alleged asbestosis, his AMA rating would be at least 10%
less." JA 9. The ALJ rejected Dr. Reid’s opinion stating that the
“assessment is conclusory rather than based on fact." JA 37.
In attempting to develop evidence
favorable to its section 8(f) request, the employer sent a letter with Dr.
Reid’s report attached to Dr. Donlan, another physician who never treated
Mr. Winn, and inquired whether he agreed with Dr. Reid’s opinion. In
response, Dr. Donlan opined that the claimant did have pulmonary asbestosis, as
well as chronic bronchitis, and that his pulmonary function tests -- performed
several months after asbestosis had been diagnosed -- showed mild obstructive
impairment. JA 10. Dr. Donlan also found that the claimant’s
“[d]iffusion capacity was mildly reduced to 75% of predicted."
Id. Further, Dr. Donlan opined:
Using AMA guidelines, I would place his impairment as Class II, 10%.
I think the majority of this impairment would be secondary to chronic
bronchitis from cigarette smoking. I would agree with Dr. Reed (sic) that the
pre-existing disease of chronic bronchitis contributes to his overall
impairment. I would agree with Dr. Reed (sic) that had he not had chronic
bronchitis that his impairment would be less.
JA 10.
5
In a supplemental three-sentence
letter dated January 26, 1999, Dr. Donlan opined, “I would conclude that
his overall impairment would be 4% had he had asbestosis alone." JA 11.
Dr. Donlan never mentioned COPD.
The ALJ rejected Dr.
Donlan’s opinion as unsubstantiated and inconsistent with the other
doctors’ opinions in regards to the claimant’s level of impairment.
Specifically, the ALJ stated, “Dr. Reid has stated that the [c]laimant now
has a 20% impairment [due to asbestosis]... and Dr. Donlan has reported a
10% impairment with 4% attributable to asbestosis." JA 37.
The employer also submitted to
the ALJ a brief letter from Dr. Guardia. Dr. Guardia “reviewed Mr.
Wynn’s [sic] record," noted that although his office had once treated
“Wynn" for an auto accident but never for a pulmonary condition, and
reviewed “the reports from Dr. Donlan and Dr. Reid." JA 12. Dr.
Guardia merely stated, “I would agree that had Mr. Wynn [sic] not been a
smoker, his disability would have been much less." JA 12. The ALJ found
Dr. Guardia’s report “not illuminating as he does not specifically
mention what reports were reviewed or describe the basis for his
conclusions." JA 37. The ALJ found that the employer had failed to prove
that
Winn’s alleged COPD amounted
to a preexisting permanent partial disability within the meaning of section
8(f) and also failed to prove that
6
Winn’s pulmonary impairment from asbestosis was materially and
substantially contributed to by a preexisting permanent partial disability. JA
37.
Upon the employer’s appeal
to the Benefits Review Board, the Board, citing Director, OWCP v. Newport
News Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134,
(4th Cir. 1998), affirmed the decision of the ALJ. JA 41-44. The
Board first addressed the employer’s argument that the ALJ erred in not
crediting what it characterized as “uncontradicted evidence"
supporting its right to section 8(f) relief. JA 43. The Board reaffirmed that
the employer, as the moving party, bears the burden to establish entitlement to
section 8(f) relief and that the absence of contrary evidence by itself did not
obligate the ALJ to credit evidence which was otherwise not worthy of credit.
JA 43. The Board held that “the [ALJ] properly concluded that employer
failed to establish any contribution from claimant’s alleged pre-existing
COPD to his current permanent partial disability."1 JA 44.
The employer timely filed an
appeal of the Board’s decision to this Court.
_____________________
1 Because it grounded
its affirmance of the ALJ's denial of section 8(f) relief on the contribution
element, the Board found it unnecessary to specifically address the employer's
challenge to the ALJ's adverse finding on the pre-existing permanent partial
disability element.
7
SUMMARY OF ARGUMENT
The employer simply failed to
carry its burden of proof to establish all the elements necessary to qualify
for section 8(f) relief. Specifically, the employer failed to convince the ALJ:
(1) that the claimant had the preexisting permanent partial disability alleged
by the employer; and (2) that such a preexisting permanent partial disability
materially and substantially contributed to the claimant’s ultimate level
of impairment as this Court has defined that legal standard in Director,
OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum I], 8 F.3d 175
(4th Cir. 1993). The ALJ’s assessment of the evidence was
thorough, rational and in accordance with the law. Accordingly, the
Board’s decision affirming the ALJ’s denial of section 8(f) relief is
based on substantial evidence.
The Board correctly determined
that the ALJ reasonably found the employer’s medical-opinion evidence to
be undocumented, unreasoned, and unpersuasive. Because of these flaws in the
employer’s evidence, the ALJ was fully justified in refusing to credit the
employer’s evidence, and the Board was correct in affirming the ALJ’s
decision. Both the ALJ and the Board properly applied the legal standard for
contribution as set forth in Director, OWCP v. Newport News Shipbuilding
& Dry Dock Co. [Carmines], 138 F.3d 134, 140 (4th Cir. 1998)
to the facts of this case. Thus,
8
this Court should affirm the Board’s determination that the
employer failed to establish its entitlement to section 8(f) relief, as the
decision is supported by substantial evidence and in accordance with the law.
ARGUMENT
SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDINGS THAT THE
EMPLOYER FAILED TO ESTABLISH THAT WINN SUFFERED FROM ANY PREEXISTING PERMANENT
PARTIAL DISABILITY PRIOR TO HIS DIAGNOSIS OF ASBESTOSIS THAT MATERIALLY AND
SUBSTANTIALLY CONTRIBUTED TO HIS CURRENT COMPENSABLE DISABILITY.
A. Standard of Review.
In reviewing a decision of the
Benefits Review Board, this Court reviews the Board’s decisions for errors
of law and to determine whether the Board adhered to the substantial evidence
standard when it reviewed the ALJ’s factual findings. See Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th
Cir. 1988). To the extent that the employer’s petition in this case
challenges the validity of the ALJ’s findings of fact, the statute
provides that “the findings of fact in the decision under review by the
Board shall be conclusive if supported by substantial evidence in the record
considered as a whole." 33 U.S.C. § 921(b)(3). Thus, this Court
should not disturb the ALJ’s factual findings unless they are unsupported
by substantial
9
evidence on the record considered as a whole. Maryland Shipbuilding
and Drydock Co. v. Director, OWCP, 618 F.2d 1082, 1084 (4th Cir.
1980).
Substantial evidence has been
defined as “more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Where
evidence is subject to multiple or conflicting inferences, “the ALJ’s
findings may not be disregarded on the basis that other inferences might have
been more reasonable. Deference must be given the fact-finder’s inferences
and credibility assessments ...." Tann, 841 F.2d at 543.
Moreover, since the substantiality of the evidence must be viewed upon
“the record as a whole," the Court must “tak[e] into account
whatever in the record fairly detracts from its weight." Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1947) .
The employer attempts to generate
a legal issue upon which to attack the ALJ’s well-reasoned factual
findings by asserting that the ALJ and the Board applied an erroneous legal
standard. PB at 21. As to questions of law, this Court exercises plenary
review. Humphries v. Director, OWCP, 834 F.2d 372, 374 (4th
Cir. 1987), cert. denied, 485 U.S. 1028 (1988) .2
____________________
2 Although the courts
certainly remain the final authorities on questions of statutory construction,
the Director's constructions of the Act, should be accepted as controlling
unless they are unreasonable or contrary to the
10
The employer, however, neither articulates any claimed legal error nor
identifies any erroneous legal standard allegedly applied. Rather, the employer
attempts to recast its factual argument as a legal one. In reality, the
employer is actually arguing over the ALJ’s application of the correct
legal standard, set forth in Carmines, to the facts of this case. Thus,
this case does not present a true legal issue.
B. The Standard for Section
8(f) Relief.
Under section 8(f) of the Act, 33
U.S.C. § 908(f) TA \s "§ 908(f)" , an employer’s workers’
compensation liability is partially mitigated when an employee’s
preexisting disability causes his or her workplace injury to be greater than it
would be without the preexisting disability. Lawson v. Suwannee Fruit &
S.S. Co., 336 U.S. 198 (1949); American Mutual Insurance Co. v.
Jones,
________________________________________________________
purpose of the statute or clearly expressed legislative intent. See
generally, e.g., Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-5 &
nn. 9, 11 (1984); Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116,
125-6 (1985). This Court has expressly accorded the Director Chevron deference
with respect to the construction of section 8(f), 33 U.S.C. § 908(f). See
Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206,
208-209, 210-11 (4th Cir. 1990). In this case however, since the only legal
principles implicated by the employer's petition for review are clearly
answered by controlling circuit precedent, there is no reason for the Director
to seek deference for any position stated herein. See, e.g., Betty B. Coal
Co. v. Director, OWCP, 194 F.3d 491, 498 (4th Cir. 1999); Director, OWCP
v. Newport News Shipbuilding & Dry Dock Co. (Harcum I), 8 F.3d 175, 179
(4th Cir. 1993); Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 258 (4th
Cir. 1991).
11
426 F.2d 1263 (D.C. Cir. 1970). In a permanent partial disability case,
as here, section 8(f) relief is available to the employer where the employer
affirmatively establishes: 1) that the claimant suffered from a preexisting
permanent partial disability; and 2) that the resulting disability is
“materially and substantially greater than that which would have resulted
from the subsequent injury alone."3 33 U.S.C. § 908(f);
Harcum I, 8 F.3d 175, 182-83.
To establish the first element,
the employer must prove that the employee had an “existing permanent
partial disability" which was in existence prior to the injury for which
compensation is sought. Director, OWCP v. Newport News Shipbuilding &
Dry Dock Co. (Langley), 676 F.2d 110, 114 (4th Cir. 1982). There
are three tests for determining whether an existing medical condition rises to
the level of a permanent partial disability within the meaning of section 8(f).
C&P Telephone Co. v. Director, OWCP, 564 F.2d 503, 513 (D.C. Cir.
1977). Impairments to specified body parts
____________________
3 Other courts have
held, in agreement with the Director, that the employer must also establish
that the preexisting disability was manifest to the employer during the
employment. Bath Iron Works v. Director, OWCP [Reno], 136 F.3d 34 (1st
Cir. 1998); Director, OWCP v. Sun Ship Inc. [Ehrentraut], 150 F.3d 288
(3rd Cir. 1998). The employer was not required to prove the manifest element
for section 8(f) relief in this case because this Court has found that
requirement inapplicable to cases involving post-retirement occupational
diseases. Newport News Shipbuilding & Dry Dock Co. v. Harris, 934
F.2d 548, 551-53 (4th Cir. 1991).
12
and functions set forth in a statutory schedule, 33 U.S.C. §§
908(c)(1)-(20); (23), will constitute existing permanent partial disabilities,
as will conditions that diminish a worker’s ability to earn wages. In
addition, a condition will constitute an existing permanent partial disability
if it satisfies the “cautious employer" test: “such a serious
physical disability in fact that a cautious employer would have been motivated
to discharge the handicapped employee because of a greatly increased risk of
employment-related accident and compensation liability." C & P
Telephone Co., 564 F.2d at 513.4
To satisfy the contribution
element, this Court has held that section 8(f) also requires that the existing
disability contribute to the worker’s ultimate level of disability. See
e.g., Harcum I, 8 F.3d at 185. To fulfill the contribution requirement when
the workplace injury causes permanent partial disability, the employer must
establish that the disability is “materially and substantially
greater" than that which would have resulted from the workplace injury
alone. Id. A showing of material and substantial contribution
“requires quantification of the level of impairment that would ensue from
the work-related injury alone." Id. at 185-186 In Carmines,
138 F.3d at 142, this Court reaffirmed the holding
____________________
4 This Court has yet
to decide whether the "cautious employer" test is a valid method of identifying
an "existing permanent partial disability."
13
of Harcum I, and further explained that quantification is
necessary so the ALJ may have a basis from which to determine whether the
ultimate permanent partial disability is, in fact, materially and substantially
greater because of such pre-existing disability.
Finally, it is indisputably the
employer’s burden to prove each and every element necessary for section
8(f) relief. Langley, 676 F.2d at 114. If the employer’s evidence
fails to satisfy this burden, the fact that the evidence is uncontradicted is
irrelevant. Carmines, 138 F.3d at 142.
C. Substantial Evidence Supports the ALJ’s Factual Findings
That the Employer Failed to Prove That Mr. Winn Suffered From an Existing
Permanent Partial Disability That Materially and Substantially
Contributed to His Ultimate Disability.
The employer clearly failed to
establish the elements necessary for section 8(f) relief in this case. The
employer’s evidence failed to prove that the claimant’s purported
COPD constituted a preexisting permanent partial disability within the meaning
of section 8(f), that materially and substantially contributed to the
claimant’s ultimate disability. Although the ALJ’s analysis
emphasized the employer’s evidentiary failings with respect to the
preexisting permanent partial disability element and the Board focused on the
contribution element of section 8(f), both conclusions are correct.
14
The employer simply did not meet its burden of proof, on either element,
to establish section 8(f) relief. Indeed, the ALJ found the employer’s
evidence unsupported and unconvincing, and the Board affirmed those findings as
rational and in accordance with the law.
i. Contribution.
Substantial evidence supports the
ALJ’s and the Board’s findings that the employer failed to satisfy
the contribution element in this case. To satisfy the contribution element in
cases of permanent partial disability, the employer must show that the
resulting disability is “materially and substantially greater than that
which would have resulted from the subsequent injury alone." 33 U.S.C.
§908 (f)(1); Harcum I, 8 F.3d 175, 182-183. To satisfy this
element, this Court has held that “a showing of this kind requires
quantification of the level of impairment that would ensue from the
work-related injury alone." Harcum I, 8 F.3d at 185-186
(emphasis added). The Board correctly affirmed the ALJ’s finding that the
employer failed to carry its burden of proof on this point.
The ALJ was well within his
discretionary authority in rejecting the doctors’ reports submitted by NNS
as insufficient to establish quantification because they failed to provide any
rationale or basis for the conclusions
15
within those reports. Although Dr. Donlan’s opinion -- that
claimant’s overall impairment would be 4% had he had asbestosis alone --
constitutes an attempt to satisfy the quantification requirement, his opinion
was found to be unworthy of credit by the ALJ, not only because it was contrary
to the stipulations of record, but because Dr. Donlan provided no basis
whatsoever for his opinion. The fact that the letter is a mere three sentences
long confirms the correctness of the ALJ’s determination. As this Court
noted in Carmines, the mere assertion of “contribution" by the
employer's physician, without any basis to support the conclusion, need not be
accepted by an ALJ. Carmines, 138 F.3d at 144.
Dr. Reid’s attempt to
quantify the level of Winn’s pulmonary impairment attributable to
asbestosis alone was no more convincing to the ALJ and, furthermore, was
legally insufficient to meet the applicable legal standard. Dr. Reid stated,
"by 1985, Mr. Winn was known to have COPD with approximately 10% impairment.
Thus, if Mr. Winn did not have COPD, and only his alleged asbestosis, his AMA
rating would be at least 10% less." JA 9. Expressions of quantification derived
solely through mathematical deduction without any basis in evidence or logic
are, as a matter of law, insufficient, to satisfy the contribution requirement.
This Court has specifically held, “it is not proper simply to calculate
the current
16
disability and subtract the disability that resulted from the
pre-existing injury." Carmines, 138 F.3d at 143. To do so
overlooks the more reasonable probability that the asbestosis is the cause of
the full amount of pulmonary impairment even though other additional pulmonary
conditions might co-exist. Id. This is exactly what Dr. Reid did in this
case. Thus, even if it were assumed, arguendo, that Mr. Winn did, in
fact, have a preexisting permanent partial disability, the employer still
failed to satisfy its burden of proof in establishing that claimant’s
current disability is materially and substantially greater because of his
pre-existing disability.
The ALJ reasonably concluded that
Mr. Winn’s COPD did not constitute a preexisting permanent partial
disability that materially and substantially contributed to his ultimate
disability, for purposes of section 8(f) relief. After a thorough review of the
record evidence, the ALJ rationally and reasonably concluded that “the
Shipyard [NNS] has not established that the Claimant had a preexisting
disability prior to the diagnosis of asbestosis in 1997." JA 37. The Board
affirmed the ALJ’s determination, focusing on the contribution element
alone. JA 43-44. The Board did not address the employer’s challenge to the
ALJ’s finding that the employer’s evidence also failed to establish a
preexisting permanent partial disability under section 8(f). See fn. 3;
JA 44.
17
A brief examination of the
evidence discloses that the employer introduced three doctors’ reports.
The employer hoped to convince the ALJ that the claimant had COPD, and that
this condition constituted a preexisting permanent partial disability that
materially and substantially contributed to his ultimate disability for
purposes of section 8(f) relief. JA 9-12. The ALJ considered and then rejected
the submitted reports. JA 34-37. Indeed, the ALJ simply found the reports
unpersuasive and lacking in any credible support for the conclusions stated
within. JA 37.
The ALJ first rejected Dr. Reid’s report, finding his assessment
“conclusory rather than based on fact." JA 37. In his report Dr. Reid
stated (JA 9):
The Shipyard clinic read Mr. Winn’s chest x-rays on April 9,
1979 and again on April 27, 1982 to show “Inc BVM" – increase
bronchovascular markings (Exhibit 1). These are the x-ray findings indicative
of chronic obstructive pulmonary disease (“COPD"). The Shipyard
clinic interpreted Mr. Winn’s pulmonary function tests in 1981, 1982,
1983, and 1985 to show “mild SAO" – small airways obstruction
(Exhibits 2 and 3). In a long time smoker such as Mr. Winn, these x-ray
findings and pulmonary function tests were diagnostic for COPD. Thus, by 1985,
Mr. Winn was known to have COPD with approximately 10% impairment.
Thus, if Mr. Winn did not have COPD, and only his alleged
asbestosis, his AMA rating would be at least 10% less.
18
Dr. Reid’s report fails to
indicate that he ever examined the claimant personally, as he refers generally
to findings made by the “Shipyard clinic." Id. Moreover, Dr.
Reid failed to consider the obvious possibility that the claimant’s long
years of asbestos exposure themselves accounted for the reduced values on the
pulmonary function tests and abnormal x-ray findings, rather than the never
previously diagnosed COPD. The claimant and the employer stipulated that from
1960 through 1986, Mr. Winn was continuously exposed to asbestos dust and
fibers. JA 15-16. Thus, the chest x-ray markings and pulmonary function tests
reviewed by Dr. Reid appear after two decades of asbestos exposure. However,
Dr. Reid never mentioned this fact in his report and apparently failed to take
it into account when forming his opinion regarding the claimant’s
impairment. Applying common sense and logic, the ALJ was entitled to reject Dr.
Reid’s report for this reason alone.
Further, the ALJ found Dr.
Donlan’s conclusions in direct conflict with Dr. Reid and the stipulated
facts, as Dr. Donlan found the claimant to have an overall impairment of 10%
with only a 4% impairment due to asbestosis alone. JA 36. Additionally, the ALJ
found Dr. Donlan’s report lacking in support for his ultimate conclusions,
stating “Dr. Donlan merely mentions that he did perform testing." JA
37. As stated above, the ALJ was
19
not persuaded by the inconsistent and unsupported opinion of Dr. Donlan
and therefore rejected it as unworthy of credit. Finally, the ALJ also rejected
Dr. Guardia’s brief and conclusory four-sentence letter, finding that such
letter was “not illuminating as he [did] not specifically mention what
reports were reviewed or describe the basis for his conclusions." JA 37.
Contrary to the employer’s
argument that the ALJ and the Board violated the Administrative Procedure Act
(“APA") by not providing any reasoning in their decisions regarding
the employer’s inadequate evidence (Petitioner’s Brief at 13-14), the
ALJ very clearly stated his reasons for finding the submitted physicians’
reports incredible, unpersuasive and conclusory. Indeed, ALJ Malamphy precisely
followed the mandate of Carmines to “examine the logic of their
conclusions and evaluate the evidence upon which their conclusions are
based." Carmines, 138 F.3d at 140.5
____________________
5 The employer argues
that an unpublished case of the Fourth Circuit, Director, OWCP v. Newport
News & Dry Dock Co., (Parkman) 122 F.3d 1060 (table) (4th Cir. 1997)
that preceded Carmines, sets forth the legal standard for determining
contribution. PB at 27. Besides the fact that Parkman is an unpublished
opinion, and factually distinguishable from the present case, the more recent
controlling published opinion in Carmines on this very point is more
instructive than Parkman, as it discusses the standard at length and
describes the reasoning behind their holdings. See Local Rule 36(c)
(disfavoring citation of unpublished opinions).
20
The ALJ’s decision in this
case indicates that he closely reviewed each of the doctors’ reports,
carefully evaluated their weight and credibility, and ultimately found them to
be of little or no evidentiary value. One of the most important functions of an
ALJ as a fact finder is to assess evidence for its appropriate weight. Since
Drs. Reid, Donlan and Guardia offered no basis or analysis to either support or
explain their medical opinions, the ALJ was well within his discretionary
authority as fact-finder in rejecting their opinions. E.g. Plaquemines
Equipment & Machine Co. v. Neuman, 460 F.2d 1241 (5th Cir.
1972) and authorities cited therein; Copper Stevedoring, Inc. v.
Washington, 556 F.2d 268, 275-275 (5th Cir. 1977). Cf. Banks
v. Chicago Grain Trimmers Ass’n, 390 U.S.459, 467 (1968).
Moreover, the ALJ was also well
within his discretionary authority in rejecting the employer’s evidence as
insufficient to prove that the claimant had a pre-existing permanent partial
disability (in the form of COPD) that materially and substantially contributed
to his ultimate disability. At the very least, implicit in the employer’s
burden to prove its entitlement to section 8(f) relief is the requirement that
medical opinion testimony, in order to constitute “substantial
evidence" must have a reasoned and documented basis for the opinion
expressed. See, e.g., Schrader v. Califano, 608 F.2d 114, 118, n.4
(4th Cir. 1979); Hobbs v. Clinchfield Coal Co., 45 F.3d 819,
21
822 (4th Cir. 1995); Migliorini v. Director, OWCP, 898
F.2d 1292 (7th Cir. 1990) (medical-opinion evidence requires
documentation to be capable of supporting ALJ’s reliance).
In rejecting the employer’s
evidence, the ALJ faithfully applied this Court’s recent decision in
Carmines, 138 F.3d 134. The employer asserts that much of Carmines
is merely dictum, including Carmines’ observation that an ALJ
need not accept uncontradicted evidence just because it is uncontradicted. PB
at 25-28. To the contrary, in Carmines, the same employer as in the
present case argued that its in-house doctor’s opinion must be accepted
solely because it was “uncontradicted." Carmines, 138 F.3d at
142. This Court flatly rejected that assertion. Indeed, Carmines
expressly held that the fact certain evidence was “uncontradicted"
was “irrelevant." Id. The Carmines court’s
statement in this regard was not dicta, but rather a core element of its
holding. In any event, this holding in Carmines is nothing more than a
statement of the very unexceptional proposition of black letter law that a
factfinder, here the ALJ, and not an appellate body, is the adjudicator who is
supposed to weigh the value of evidence. Id. at 140-142.
Accordingly, the ALJ in this case
did exactly as this Court instructed in Carmines and did “not
merely credulously accept the assertions of the
22
parties or their representatives, but must examine the logic of
their conclusions and evaluate the evidence upon which their conclusions are
based." Carmines, 134 F.3d at 140 (emphasis added). In no sense did
the ALJ, as the employer asserts, substitute his own medical opinion for that
of the expert medical opinions. PB at 18. Instead, the ALJ merely examined
those medical opinions submitted by the employer for the logic of their
conclusions, evaluated the underlying evidence available to the doctors, and
found their opinions to be insufficiently unexplained and conclusory. JA 37.
Such analysis where the ALJ examines the conclusions of the parties’
representatives, rather than merely accepting them as truth, is mandated by
Carmines, and Harcum I, and should be upheld by this Court. Under
this Court’s well-established precedent, and under the standard of review
applicable in this case, the ALJ’s finding that the employer failed to
establish contribution for purposes of section 8(f) relief, must be
affirmed.
ii. Substantial Evidence Supports the ALJ’s Finding that the
Employer Failed to Satisfy the Preexisting Permanent Partial Disability Element
for Section 8(f) Relief.
If for some reason, this Court
were to decline to affirm the Board’s decision regarding the contribution
element of section 8(f), this Court may nevertheless affirm the Board’s
result on an alternative ground. Clinchfield Coal Co. v. Director, OWCP
[Harris], 149 F.3d 307, 309 (4th Cir. 1998);
23
Skipper v. French, 130 F.3d 603, 610 (4th Cir. 1997).
The ALJ alternatively found that the claimant’s purported COPD did not
constitute a pre-existing permanent partial disability for purposes of section
8(f) relief. JA 37. As stated above with respect to the contribution element,
the ALJ rejected the employer’s evidence as unsupported, conclusory and
unpersuasive as it relates to the preexisting permanent partial disability
element of section 8(f) as well. As set forth above, the ALJ’s findings
are thorough, well-reasoned, supported by substantial evidence in the record
and should be affirmed by this Court.
24
CONCLUSION
Substantial evidence supports the
Board’s decision affirming the ALJ’s denial of the employer’s
request for section 8(f) relief. The employer failed to satisfy its burden of
proof to establish that the claimant’s purported preexisting COPD
materially and substantially contributed to his pulmonary impairment due to
asbestosis.
Respectfully submitted,
HENRY L. SOLANO
Solicitor of Labor
CAROL A. DE DEO
Associate Solicitor
MARK REINHALTER
Senior Attorney
GEOFFREY K. COLLVER
Attorney
U.S. Department of
Labor
Suite S-4325
200 Constitution Ave., NW
Washington, D.C.
20210
(202) 219-5439 (ext. 133)
Attorneys for the Director,
Office of Workers’
Compensation
Programs
25
STATEMENT REGARDING ORAL ARGUMENT
Due to the existence of binding
precedent on all the issues raised by the petitioner, the Director, OWCP
believes that oral argument will not aid the Court in deciding the present
case.
26
CERTIFICATE OF SERVICE
I hereby certify that on October
5, 2000, a copy of the foregoing document was served by mail, postage prepaid,
on the following:
Christopher A. Taggi, Esq.
Mason, Cowardin & Mason
11742
Jefferson Avenue
Suite 260
Newport News, Virginia 23606
Gary R. West, Esq.
Patten, Wornom, Hatten
& Diamonstein
12350 Jefferson Avenue
Suite 360
Newport News, Virginia 23602
LAWANDA J. HAMLIN
Paralegal Specialist
U.S.
Department of Labor
27
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