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                                 BRB No. 02-0671

BENJAMIN M. GOODE                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                                        )
                                        )
CARGILL, INCORPORATED                   )    DATE ISSUED:   06/13/2003
2003
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Daniel A.
     Sarno, Jr., Administrative Law Judge, United States Department
     of Labor.

     John H. Klein (Montagna Breit Klein Camden, LLP), Norfolk,
     Virginia, for claimant.

     Dana Adler Rosen (Clarke, Dolph, Rapaport, Hardy & Hull,
     P.L.C.), Norfolk, Virginia, for self-insured employer.
     
     Before:  DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER, Administrative
     Appeals Judges.

     PER CURIAM:
     
     Employer appeals the Decision and Order Awarding Benefits (01-LHC-1589) of Administrative Law Judge Daniel A. Sarno, Jr., rendered on a
claim filed pursuant to the provisions of the Longshore and Harbor
Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(the Act).  We must affirm the findings of fact and conclusions of law of
the administrative law judge which are rational, supported by substantial
evidence and in accordance with law. O'Keeffe v. Smith, Hinchman &
Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).
     
     The facts underlying this case are not in dispute  Claimant, an elevator/dryer man, worked primarily on
barges and ships loading and unloading grain.  His working conditions were dusty, and on December 23, 1998,
claimant was exposed to toxic chemicals used to treat the grain.  On this day, claimant was a member of a crew
attempting to get a grain sample from a tank when alarms went off signaling the presence of hazardous chemicals
and carbon monoxide.  HT at 31-33.  Upon exiting the tank, claimant, as well as his colleagues, began to
experience immediate physical symptoms, including vomiting.  HT at 32-33.  Subsequent to this exposure,
claimant was diagnosed as suffering from sarcoidosis, irritable bowel syndrome, and secondary fibromyalgia.  EX
3; HT at 27-30.  Claimant stopped working on May 4, 1999, and subsequently filed a claim for total disability
benefits under the Act.
     
     In his decision, the administrative law judge found that claimant is entitled to invocation of the presumption
at Section 20(a) of the Act, 33 U.S.C. §920(a), with regard to the causal relationship between all of his
conditions and his employment, and that employer failed to rebut the presumption with regard to the sarcoidosis. 
The administrative law judge, found, however, that employer rebutted the Section 20(a) presumption with regard
to claimant's irritable bowel syndrome and fibromyalgia, and that neither condition is work-related.  The
administrative law judge found that claimant is unable to return to his usual work, that employer established the
availability of suitable alternate employment, that claimant did not diligently seek alternate work, and that
claimant's condition is still temporary.  Accordingly, he awarded claimant compensation for temporary partial
disability. 33 U.S.C. §908(e).
     
     Employer appeals, arguing that the administrative law judge erred in
finding that claimant's sarcoidosis is work-related.[1]   Employer further contends that the
administrative law judge erred in finding that claimant cannot return to
his usual work because of his sarcoidosis.  Claimant responds, urging
affirmance.
     
     Based upon the undisputed facts that an incident occurred at work and that claimant is suffering from
sarcoidosis, the administrative law judge found claimant entitled to invocation of the Section 20(a) presumption. 
Employer contends this finding is in error because claimant failed to establish that his sarcoidosis could have been
or was caused by the working conditions on December 23, 1998.  We reject this contention.
     
     In establishing that an injury is causally related to his employment,
claimant is aided by the Section 20(a) presumption, which provides a
presumed causal nexus between the injury and the employment.  In order to
be entitled to the Section 20(a) presumption, claimant must establish a
prima facie case by showing that he suffered a harm and either
that a work-related accident occurred or that working conditions existed
which could have caused the harm; clamant bears the burden of
establishing each element of his prima facie case by affirmative
proof. See Bolden v. G.A.T.X. Corp., 30 BRBS 71 (1996); see
also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS
43(CRT) (1994).  Although the Section 20(a) presumption does not aid
claimant in establishing either element of a prima facie claim,
Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989);
Mackey v. Marine Terminals Corp., 21 BRBS 129 (1988), claimant,
contrary to employer's assertion, does not have to introduce affirmative
evidence establishing that the accident in fact caused the alleged harm
in order to invoke the Section 20(a) presumption. Stevens v. Tacoma
Boatbuilding Co., 23 BRBS 191 (1990).  In order to invoke the
presumption, claimant need only prove that he suffered a harm and that an
accident occurred or working conditions existed which could have
caused that harm or aggravated a pre-existing condition. See generally
U.S. Industries/Federal Sheet Metal, Inc., v. Director, OWCP, 455
U.S. 608, 14 BRBS 631 (1982); Brown v. I.T.T./Continental Baking
Co., 921 F.2d 289, 24 BRBS 75(CRT) (D.C. Cir. 1990); Champion v. S
& M Traylor Bros., 690 F.2d 285, 15 BRBS 33(CRT) (D.C. Cir. 1982).
     
     Employer contends that since the cause of sarcoidosis is unknown,
claimant cannot establish that his employment exposure caused or could
have caused the disease.  To the extent that employer contends that
claimant must establish that the toxic exposure caused claimant's
sarcoidosis, it misperceives the operation of Section 20(a). See  id. 
See also Universal Maritime Corp. v. Moore, 126 F.3d 256, 261, 31
BRBS 119, 123(CRT) (4th Cir. 1997) ("an employee seeking to have the
benefit of the statutory presumption must first allege (1) an injury or
death (2) that arose out of and in the course of (3) his maritime
employment.  To this claim attaches a presumption of coverage by the Act,
shifting the burden of proceeding further to the employer.").  With
regard to whether claimant's exposures at work could have caused his
sarcoidosis, the administrative law judge rationally found that claimant
introduced sufficient evidence to invoke the Section 20(a) presumption. 
Dr. Donlan opined that sarcoidosis can be aggravated by environmental
exposures and acknowledged that claimant's symptoms seemed to have their
onset on December 23, 1998.  EX 2; Dep. at 13.  As the administrative law
judge rationally concluded that claimant introduced sufficient evidence
to establish that the basis of his claim goes "beyond mere fancy," see
Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968), we affirm the
administrative law judge's finding that claimant established a prima
facie case and his invocation of the Section 20(a) presumption.
     
     Once the Section 20(a) presumption is invoked the burden shifts to
employer to rebut the presumption with substantial evidence that
claimant's condition was not caused or aggravated by his employment.
See  Moore, 126 F.3d 256, 31 BRBS 119(CRT); Gooden v. Director,
OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th  Cir. 1998); see also
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C.
Cir.), cert. denied, 429 U.S. 820 (1976).  If claimant's working
conditions could have aggravated a pre-existing condition, employer must
establish that claimant's work neither directly caused the injury nor
aggravated the pre-existing condition.  Conoco, Inc. v. Director,
OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999).  In establishing
rebuttal of the presumption, proof of another agency of causation is not
necessary as long as employer introduces substantial evidence that the
injury is not related to the employment.   Employer cannot rebut the
Section 20(a) presumption merely by demonstrating that the cause of the
condition cannot be medically determined. See Stevens v. Todd Pacific
Shipyards, 14 BRBS 626 (1982)(Kalaris, J., concurring and
dissenting), aff'd mem., 722 F.2d 747 (9th Cir. 1983), cert.
denied, 467 U.S. 1243 (1984).  Despite the lack of definitive studies
demonstrating the cause of a condition, however, employer can rebut the
Section 20(a) presumption if it introduces substantial evidence that this
claimant's condition was not caused or aggravated by his employment.
Neeley v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 138
(1986).   If the administrative law judge finds that the Section
20(a) presumption is rebutted, he must weigh all of the evidence and
resolve the causation issue based on the record as a whole, with claimant
bearing the burden of persuasion. See Moore, 126 F.3d 256, 31 BRBS
119(CRT); see also Greenwich Collieries, 512 U.S. 267, 28 BRBS
43(CRT).
     
     The administrative law judge found that employer did not rebut the Section 20(a) presumption because it
is insufficient for an employer merely to show that the cause of a disease is unknown.  Decision and Order at 13. 
Employer contends this finding is in error, and that, moreover, the administrative law judge erred in stating that
it did not introduce medical evidence sufficient to rebut the Section 20(a) presumption.
     
     Employer first argues that rebuttal is established based upon the
medical evidence stating that the cause of sarcoidosis is unknown.
See, e.g., EX 3: "Joint Statement of the American Thoracic
Society and the European Respiratory Society," Am. J. of Respiratory
and Critical Care Medicine, Vol. 150 (1999).  However, as the
administrative law judge properly stated, the fact that the cause of
sarcoidosis is unknown does not establish that claimant's exposure is not
a cause of the condition, especially in light of the medical community's
emphasis on possible environmental factors as a cause or aggravation of
the condition. Id.; see Stevens, 14 BRBS at 628.  The medical
literature acknowledges as possible causes environmental exposures to
infectious agents as well as exposure to inorganic agents such as
aluminum, zirconium and talc. Id., EX 3 at 739.  Thus, we affirm
the administrative law judge's finding that this evidence does not rebut
the Section 20(a) presumption.
     
     Employer also contends that the opinion of Dr. Donlan, who is Board-certified in internal and pulmonary medicine, is sufficient to rebut the
Section 20(a) presumption.  Dr. Donlan stated that the etiology of
sarcoidosis is unknown, but that "I do not think one could relate the
sarcoidosis to exposure that occurred at a grain elevator at [claimant's]
workplace," CX 6a, and that "I cannot make out a relationship between the
exposure and the development of sarcoidosis."  EX 2 (examination of Nov.
11, 2001).  This opinion constitutes substantial evidence that claimant's
sarcoidosis was not caused by claimant's employment. See Neeley,
19 BRBS at 140.
     
     We must remand the case, however, for the administrative law judge to
discuss whether employer introduced substantial evidence that claimant's
sarcoidosis was not aggravated by his employment. See Conoco, Inc.,
194 F.3d 684, 33 BRBS 187(CRT). Dr. Donlan stated that
sarcoidosis can be aggravated by environmental factors,  Dep. at 13, but
he also stated that aggravation does not occur in patients like claimant
who lack "lung involvement."  Dep. at 6, 13-14.  On the other hand, Dr.
Donlan stated that claimant's condition became symptomatic upon exposure
and that he was unaware of the side effects of the chemicals to which
claimant was exposed.[2]   EX 2.  It is
not clear to which of claimant's symptoms Dr. Donlan is referring; the
administrative law judge found that claimant's gastrointestinal problems
are not work-related or related to the sarcoidosis.[3]    If claimant's work exposure caused his
condition to become symptomatic, or otherwise worsened his symptoms,
claimant has sustained a work-related injury.[4]   See Gardner v. Director, OWCP, 640 F.2d 1385, 13
BRBS 101 (1st Cir. 1981); Pittman v. Jeffboat, Inc., 18 BRBS 212
(1986); see also Gooden, 135 F.3d at 1066, 32 BRBS at 59(CRT). 
Therefore, since Dr. Donlan's opinion is sufficient to rebut the Section
20(a) presumption with regard to the cause of claimant's sarcoidosis, and
as the administrative law judge did not address whether employer
presented substantial evidence that claimant's sarcoidosis was not
aggravated by his employment, we remand this case for further findings. 
If the administrative law judge finds that employer rebutted the Section
20(a) presumption, he must weigh the evidence as a whole in order to
determine if claimant established that his sarcoidosis is work-related.
Moore, 126 F.3d 256, 31 BRBS 119(CRT).
     
     Assuming, arguendo, that claimant's condition is work-related,
employer also contends that the administrative law judge erred in finding
that claimant cannot return to his usual work.  The administrative law
judge stated that it was undisputed that claimant's usual work was dusty
and exposed him to fumes.  In finding that claimant cannot return to his
usual work, the administrative law judge relied on the opinions of Drs.
Donlan, Espada, and Tomlinson, who stated that claimant should not work
in such an environment.  CXS 1; 5dd; EX 2.  Employer relies on the
opinions of Drs. Tomlinson and Donlan that claimant is not disabled from
working. See CX 5dd; Dep. at 7.  Dr. Tomlinson, however, was
commenting on claimant's physical capacity to work, and the
administrative law judge rationally gave less weight to Dr. Donlan's
deposition testimony that claimant could return to work in a dusty
environment, Dept. at 7, in view of Dr. Donlan's earlier statement that
claimant should avoid working in dusty environments, EX 2, and of the
opinions of Drs. Espada and Tomlinson. See generally Todd Shipyards
Corp. v. Donovan, 300 F.2d 741 (5th  Cir. 1962).  In this case, the
administrative law judge appropriately took into account the
inadvisability of claimant's working in a dusty environment in
determining if claimant could return to his usual work. See
Armand v. American Marine Corp., 21 BRBS 305 (1988).  As the
administrative law judge's finding that claimant cannot return to his
usual work is rational and supported by substantial evidence, it is
affirmed. See generally Boone v. Newport News Shipbuilding & Dry Dock
Co., 21 BRBS 1 (1988).  Claimant has not appealed the administrative
law judge's findings that employer established the availability of
suitable alternate employment and that claimant did not seek alternate
work in a diligent manner.  Therefore, if on remand the administrative
law judge finds that claimant's sarcoidosis is work-related, the award of
temporary partial disability benefits is affirmed.     Accordingly, we vacate the administrative law judge's finding that employer did not rebut the Section 20(a)
presumption with regard to claimant's sarcoidosis, and we remand  the case for further findings.  In all other
respects, the administrative law judge's Decision and Order is affirmed.  
     
     SO ORDERED.
        
                                                                         
                            NANCY S. DOLDER, Chief
                            Administrative Appeals Judge



                                                                   
                            ROY P. SMITH
                            Administrative Appeals Judge



                                                                   
                            PETER A. GABAUER, Jr.
                            Administrative Appeals Judge
        

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Footnotes.


1)On appeal, employer argues that the administrative law judge found claimant's gastrointestinal problems to be work-related. Brief at 5. The administrative law judge specifically found that these problems are unrelated to either claimant's sarcoidosis or to his work environment. Decision and Order at 13. As claimant did not appeal these findings, and they are favorable to employer, this issue will not be further addressed. Back to Text
2)Employer erroneously states that Dr. Donlan concluded that Foxtoxide does not cause sarcoidosis. Brief at 24. Dr. Donlan stated, "I am not aware of the particular side effects from the chemical Foxtoxide, . . . ." EX 2. Back to Text
3)Dr. Donlan stressed that claimant's primary symptoms are gastrointestinal, and not pulmonary, in nature. Dep. at 6, 15-17. On a few occasions, claimant reported to Dr. Donlan that he was intermittently short of breath and had a cough. EX 2. In June 1999, however, Dr. Donlan stated that claimant's pulmonary function studies were "essentially normal." Id. A pulmonary function test administered in 2000 was interpreted as showing mild restrictive lung disease, CX 4f, although Dr. Patel concluded that claimant did not have "any significant pulmonary symptoms." CX 4b. Back to Text
4)Employer argues that the work exposure did not aggravate or render symptomatic claimant's sarcoidosis because his condition had not been previously diagnosed. Employer mistakenly equates the lack of a diagnosis with an absence of a condition. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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