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BRB No. 12-0626


NADA GREEN
(Widow of LARRY B. GREEN)

		Claimant-Petitioner
		
	v.

ELECTRIC BOAT CORPORATION

		Self-Insured
		Employer-Respondent
		
DIRECTOR, OFFICE OF WORKERSí
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

		Party-in-Interest


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DATE ISSUED: 06/24/2013








DECISION and ORDER


Appeal of the Decision and Order Denying Benefits of Colleen A. Geraghty, Administrative Law Judge, United States Department of Labor.

Stephen C. Embry (Embry and Neusner), Groton, Connecticut, for claimant.

Edward W. Murphy (Morrison Mahony LLP), Boston, Massachusetts, for self-insured employer.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals the Decision and Order Denying Benefits (2011-LHC-00951, 00952, 00953) of Administrative Law Judge Colleen A. Geraghty rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workersí Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judgeís findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); OíKeeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Decedent injured his back on October 16, 1981 and July 2, 1983, during the course of his employment for employer as a painter. In a March 1985 decision, Judge Glennon awarded claimant compensation for permanent total disability from July 3, 1983. CX 8. Employer was found entitled to Section 8(f) relief. 33 U.S.C. §908(f). Nonetheless, decedent returned to work for 11 months until he sustained a third work-related back injury on June 5, 1989. Tr. at 78; CX 1 at 2. Decedent received treatment from the Veteranís Administration Hospital (the VA) in August 2000 after a slip and fall at a grocery store resulted in low back pain. Decedent subsequently was treated at the VA for morbid obesity, diabetes, hypertension, obstructive sleep apnea, depression, hypercholesterolemia, kidney disease, and low back pain. CX 19. Decedent died on February 10, 2010; the death certificate states the cause of death as coronary artery disease and hypertension. CXs 3, 20 at 9, 11. Claimant asserted that: decedentís back injuries caused chronic pain and depression; these conditions caused an inability to exercise, binge eating and adrenal hypertension; and decedentís inability to exercise affected his cardiovascular fitness and weight gain, which in turn worsened his cardiovascular status resulting in death.

In her decision, the administrative law judge found claimant entitled to the Section 20(a) presumption, 33 U.S.C. §920(a), that decedentís back injuries contributed to his morbid obesity and coronary artery disease, which in turn caused or hastened his death. Decision and Order at 17. The administrative law judge found the opinions of Drs. Morgan and Tousignant, that decedentís back injuries did not hasten his death, rebut the Section 20(a) presumption. The administrative law judge concluded that claimant failed to establish by a preponderance of the evidence that decedentís back injuries caused, contributed, or hastened his death. Id. at 20. Therefore, the administrative law judge denied the claim for death benefits.

On appeal, claimant challenges the denial of death benefits. Employer responds, urging affirmance.

Claimant first contends the administrative law judge erred by relying on evidence submitted by the Director, Office of Workersí Compensation Programs (the Director), with his post-hearing brief that claimant returned to work beginning in 1988. Claimant asserts she objected to the admission of this evidence, the administrative law judge did not rule on her objection, and the administrative law judge considered this evidence in her decision when she found that decedentís return to work for 11 months in 1988 and 1989 ďundermines Mrs. Greenís testimony that from 1984 to the mid-1990s the decedent could not sleep, walk, or exercise because those activities bothered his back.Ē Decision and Order at 19 n.27.

The Director submitted with his post-hearing brief opposing employerís request for Section 8(f) relief a letter from employer to OWCP dated February 22, 2011, which stated that decedent had returned to work from July 10, 1988 to June 5, 1989, when he again stopped working due to an injury. Directorís Post-Hearing Br. at Ex. 6. The administrative law judge did not rule on the admissibility of this evidence. Nonetheless, we reject claimantís contention that the administrative law judge relied on this evidence to claimantís prejudice. The record also contains properly admitted evidence of the June 1989 work injury. Dr. Bakerís January 7, 2011 report states that decedent had a work-related back injury on June 5, 1989. CX 1 at 2. Dr. Seldenís July 6, 1998 office note states that decedent reinjured his back in 1989. CX 11 at 8. Dr. Tousignant addressed decedentís having sustained three work injuries. EX 8 at 22-23. Dr. Morgan testified that decedent returned to work in 1989 for 11 months, and he stopped working due to an injury to his back. Tr. at 66, 73-74. The administrative law judge cited Dr. Morganís testimony and Dr. Seldenís note. Decision and Order at 6, 8. As there is evidence of record supporting the administrative law judgeís statement that decedent returned to work for 11 months in 1988 and 1989, claimant has not established that the administrative law judge relied on the Directorís post-hearing exhibit to find that decedent returned to work in 1988. See generally Collins v. Electric Boat Corp., 45 BRBS 79 (2011). The administrative law judgeís failure to address claimantís motion to exclude the Directorís evidence, therefore, is harmless. 1 Moreover, the administrative law judgeís reliance on decedentís return to work to impeach claimantís testimony concerning decedentís alleged immobility is within her discretion. See generally Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 28 BRBS 7(CRT) (2 d Cir. 1993).

Claimant next asserts that the administrative law judgeís denial of death benefits is not supported by substantial evidence. Pursuant to Section 9 of the Act, eligible survivors are entitled to death benefits ďif the injury causes death.Ē 33 U.S.C. §909. In determining whether a death is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked only after the claimant establishes a prima facie case, i.e., the claimant demonstrates that the decedent suffered a harm and that an accident occurred, or conditions existed, at work which could have caused that harm. Rainey v. Director, OWCP, 517 F.3d 632, 42 BRBS 11(CRT) (2 d Cir. 2008); American Stevedoring, Ltd. v. Marinelli, 248 F.3d 54, 35 BRBS 41(CRT) (2 d Cir. 2001); see generally U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982). Where, as here, claimant establishes a prima facie case, Section 20(a) applies to relate the death to the employment, and the employer can rebut this presumption by producing substantial evidence that the decedentís death was not caused, contributed to or hastened by his employment. Rainey, 517 F.3d 632, 42 BRBS 11(CRT); Marinelli, 248 F.3d 54, 35 BRBS 41(CRT); see Fineman v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993); see also Brown & Root, Inc. v. Sain, 162 F.3d 813, 32 BRBS 205(CRT) (4 th Cir. 1998). If employer rebuts the presumption, it no longer controls, and the issue of causation must be resolved on the evidence of record as a whole, with the claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4 th Cir. 1997).

Claimant contends that in addressing rebuttal, the administrative law judge did not consider the role chronic pain played in causing decedentís depression and eating disorders. We reject this contention. The administrative law judge found the opinions of Drs. Morgan and Tousignant rebut the Section 20(a) presumption. Dr. Morgan opined that decedentís morbid obesity was caused by neuroendocrine and neurobehavioral factors, including eating disorders, diabetes, and enlarged adrenal glands. Tr. at 69-73. He opined that decedentís work injuries did not cause chronic back pain; decedentís chronic back pain was a result of his obesity and non-work-related degenerative disc disease. Id. at 73-75, 77, 102, 105. Dr. Morgan concluded that decedentís back injuries did not cause, contribute to or worsen decedentís metabolic syndrome or cardiovascular disease. Id. at 69-71, 73-75. Dr. Tousignant opined that decedentís fatal heart attack was due to obesity, obstructive sleep apnea, poorly controlled diabetes, coronary artery disease, and hypertension, and that his death was not hastened by the work-related back injuries. EX 8 at 24-25. In his deposition testimony, Dr. Tousignant opined that decedentís obesity was not related to the work injuries and that the back pain was caused by obesity and degenerative joint disease. Id. 8 at 27-28, 32, 60. The administrative law judgeís finding that the opinions of Drs. Morgan and Tousignant rebut the Section 20(a) presumption is supported by substantial evidence. Rainey, 517 F.3d 632, 42 BRBS 11(CRT); OíKelley v. Depít of the Army/NAF, 34 BRBS 39 (2000). Moreover, as the administrative law judge relied on Dr. Morganís testimony that decedentís chronic back pain was not due to the work injuries, she was not required to address the contribution of chronic pain to decedentís depression and eating disorders to find the presumption rebutted. Therefore, we affirm the finding that employer rebutted the Section 20(a) presumption. See Coffey v. Marine Terminals Corp., 34 BRBS 85 (2000); Duhagon v. Metropolitan Stevedore Co., 31 BRBS 89 (1997), affíd, 169 F.3d 615, 33 BRBS 1(CRT) (9 th Cir. 1999); Rochester v. George Washington University, 30 BRBS 233 (1997). Thus, the issue of whether decedentís death was related to his work injuries was properly addressed based on the record as a whole, requiring claimant to prove her claim by a preponderance of the evidence. See Sistrunk v. Ingalls Shipbuilding, Inc., 35 BRBS 171 (2001); Santoro v. Maher Terminal, Inc., 30 BRBS 171 (1996).

Claimant asserts the administrative law judge improperly injected fault into her weighing of the evidence by finding that decedent could have lost weight had he controlled his eating, rather than focusing on the contribution of chronic pain to his obesity. In weighing the evidence as a whole, the administrative law judge found that all the experts agree that coronary artery disease was the direct cause of death, and that decedentís morbid obesity contributed to his coronary artery disease as well as to his diabetes, hypertension, and obstructive sleep apnea. Decision and Order at 19. The administrative law judge stated that the key difference is that Drs. Morgan and Tousignant, unlike claimantís expert, Dr. Baker, do not link claimantís work injuries to his chronic back pain.

The administrative law judge is entitled to evaluate the credibility of all witnesses and to draw her own inferences and conclusions from the evidence. John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2 d Cir. 1961); see also Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5 th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5 th Cir. 1962). In this case, the administrative law judge rationally found less persuasive the opinion of Dr. Baker linking decedentís death to the work injuries. Dr. Baker opined that the injuries caused chronic pain, limited decedentís physical activities, and contributed to depression and over-eating. In turn, these contributed to obesity, which worsened decedentís underlying conditions and hastened his death. CX 21. The administrative law judge found more persuasive the opinions of Drs. Morgan and Tousignant as they are more consistent with decedentís contemporaneous medical records. The administrative law judge rationally relied on decedentís ability to return to work for 11 months in 1988-1989, the absence of medical records documenting back pain complaints from 1984 to 2000, and the exercise recommendations by the VA physicians after the 2000 non-work-related back injury to reject claimantís assertion that decedentís back condition precluded physical activity. Moreover, the administrative law judge rationally rejected claimantís assertion that decedentís eating disorders and weight gain could be attributed to depression related to chronic back pain as unsupported by the VA records, which attributed decedentís depression to non-work-related causes. In her weighing of the evidence as a whole, the administrative law judge clearly addressed and rejected claimantís assertion of work-related chronic back pain leading to morbid obesity, and, rather than injecting fault into her analysis, she discussed the cause of decedentís weight gain only in so far as it was necessary to address claimantís assertion that it was due, in part, to work-related depression. Consequently, as the administrative law judgeís weighing of the evidence is rational and her conclusion that claimant did not establish that decedentís back injuries caused or contributed to his death is supported by substantial evidence, we affirm the finding that claimant is not entitled to death benefits. See Sistrunk, 35 BRBS 171; Coffey, 34 BRBS 85.

Accordingly, the administrative law judgeís Decision and Order Denying Benefits is affirmed.

SO ORDERED.

____________________________________

NANCY S. DOLDER, Chief

Administrative Appeals Judge

____________________________________

ROY P. SMITH

Administrative Appeals Judge

____________________________________

REGINA C. McGRANERY

Administrative Appeals Judge

ENDNOTES

1. As claimant has not shown that the Directorís post-hearing exhibits were admitted into the record, we need not address claimantís contention that the Directorís evidence was not relevant to the death benefits claim and that she did not have an opportunity to impeach this evidence of a third work-related injury. See Parks v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998), affíd, 202 F.3d 259 (4th Cir. 1999) (table).



NOTE: This is a LHCA Unpublished Document


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