Bath Iron Works Corp. v. Director, Office of Workers' C, et al

Filing 920100318

Opinion

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var WPFootnote1 = '                   Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = '                   Although the cases refer to this framework in terms of\
"shifting" burdens, the "shifts" do not necessarily correspond to\
the order in which the parties present evidence at a benefits\
hearing, nor does the framework suggest that a hearing before the\
ALJ proceeds to steps two and three only after the ALJ has ruled on\
the adequacy of the claimant\'s prima facie showing or of the\
rebuttal evidence of the employer directed at the section 20(a)\
presumption. The burden-shifting framework is "merely a sensible,\
orderly way to evaluate the evidence," Furnco Constr. Corp. v.\
Waters, 438 U.S. 567, 577 (1978) (discussing Title VII), in light\
of the statutory presumption of causation. See Del Vecchio v.\
Bowers, 296 U.S. 280, 285-87 (1935) (discussing the statutory\
presumption set forth in section 20(d) of the LHWCA).\
'

var WPFootnote3 = '                   It is important to note that the LHWCA "uses the same\
standard -- \'substantial evidence\' -- for two entirely different\
purposes." 2 Richard J. Pierce, Jr., Administrative Law Treatise\
§ 11.2 (5th ed. 2010). Here, we are talking about the Benefits\
Review Board\'s standard of review. As noted, the Act also requires\
the employer to produce "substantial evidence" of non-causation to\
rebut the section 20(a) presumption. The two issues are not\
identical. A commentator has observed, for example, that "it is\
quite possible that the employer [could] present[] \'substantial\
evidence\' to rebut the presumption [at step two of the burden-shifting framework], but that the ALJ could still make a finding\
[at step three of the burden-shifting framework], supported by\
\'substantial evidence,\' that the employee suffered a job-related\
injury." Id.\
'

var WPFootnote4 = '                   Indeed, we have previously rejected the same argument on\
materially indistinguishable facts. See Preston, 380 F.3d at 607\
(holding that Board "did not usurp the ALJ\'s authority to make\
findings of fact" when it concluded that BIW\'s evidence was legally\
insufficient to rebut the section 20(a) presumption).\
'

var WPFootnote5 = '                   Indeed, the ALJ\'s entire decision is fraught with\
ambiguity on this issue. In finding that Fields had not proved his\
case by a preponderance of the evidence (at step three of the\
burden-shifting framework), the ALJ noted:\
\
              Neither Dr. Desai nor Dr. Ciembroniewicz [was]\
specifically asked whether the Claimant\'s work during May\
2002, when he did more kneeling and bending than in the\
past, could have aggravated the underlying back condition\
that ultimately became disabling by June 7, 2002. Since\
BIW rebutted the section 20 presumption, the void in the\
record left by this unaddressed question does not assist\
the Claimant in meeting his burden of proving causation\
by a preponderance of the evidence, and it is not\
appropriate for the trier of fact to close evidentiary\
gaps with his own lay speculation.\
\
We are not certain from this discussion whether the ALJ\'s reference\
to the lack of proof on causation refers to the causal link between\
the working conditions at BIW and Fields\'s osteoarthritis, his\
disabling pain, or both. Also, while the void in the record\
referred to by the ALJ might have been harmful to Fields if he had\
to meet his ultimate burden of establishing causation at step three\
of the burden-shifting framework, it was fatal to BIW\'s case at\
step two when it had to produce substantial evidence to overcome\
the statutory presumption.\
'

var WPFootnote6 = '                   In Shorette, we held that evidence that the employee had\
developed asbestosis prior to his maritime employment was\
insufficient to rebut the section 20(a) presumption because it did\
not address the employee\'s theory that subsequent exposure to\
asbestos had aggravated his conditions. See 109 F.3d at 55-56. \
Similarly, we held in Preston that a psychiatrist\'s opinion\
regarding the cause of the employee\'s psychological symptoms was\
insufficient to rebut the section 20(a) presumption because it did\
not address the alleged connection between the employee\'s working\
conditions and his physical symptoms. See 380 F.3d at 607.\
'

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