Skip to page content
Benefits Review Board
Bookmark and Share

                                 BRB Nos. 98-0550
                                   and 98-0550A

ROBERT D. ADAMS, JR.                    )
          Claimant-Petitioner           )    DATE ISSUED:   01/07/1999
          Cross-Respondent              )
     v.                                 )
          Employer-Respondent           )
          Cross-Petitioner              )
     and                                )
AND DRY DOCK COMPANY,                   )
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Respondent              )
     and                                )
          Employer-Respondent           )
          Cross-Respondent              )    DECISION and ORDER

     Appeals of the Decision and Order of Fletcher E. Campbell, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Hugh B. McCormick, III (Patterson, Wornom & Watkins, L.C.), Newport
     News, Virginia, for claimant.

     F. Nash Bilisoly and Kelly O. Stokes (Vandeventer Black LLP), Norfolk,
     Virginia, for Metro Machine Corporation.

     Jonathan H. Walker (Mason & Mason, P.C.), Newport News, Virginia, for Newport News Shipbuilding and Dry Dock Company.

     Patrick J. Hanna (Rabalais, Hanna & Hebert), Lafayette, Louisiana, for Brown & Root, Incorporated.

     Before: SMITH and McGRANERY, Administrative  Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     SMITH, Administrative Appeals Judge:

     Claimant appeals and Metro Machine Corporation cross-appeals the Decision and
Order (96-LHC-892, 97-LHC-292, and 97-LHC-1181) of Administrative Law Judge
Fletcher E. Campbell, 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 Longshore Act).  We must affirm the findings of fact and
conclusions of law of the administrative law judge if they 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).

     Claimant worked for various employers between 1966 and 1984, during which time
he was allegedly exposed to asbestos fibers.  Specifically, claimant worked for Newport News
Shipbuilding and Dry Dock Co. (Newport News) from 1966 to 1969 and from 1977 to 1979, during which time he testified that he
was exposed to asbestos, specifically a material called kaylo, while working in the vicinity of boilers and with  insulation
on piping, gasket material, packing and sealing materials. See Tr. 57-62.  Claimant also worked as a pipefitter for
Brown and Root from November 1973 to January 1974, from September 1975 to June 1976, and in 1981 and 1982, where he allegedly
came in contact with asbestos- containing gasket material. See id. at 66-67.  Lastly, claimant worked for Metro Machine
Corporation (employer) from 1983 to 1984.  While working for employer, claimant testified that he was exposed to asbestos
materials when he worked with pipe insulation containing asbestos, boilermakers with asbestos containing fire brick, and with
valves and pipe fittings. See id. at 72-75, 138-141. 

     On May 4, 1995, Dr. Foreman diagnosed claimant's respiratory symptoms as  chronic bronchitis with mild emphysema; Dr.
Foreman noted that claimant had calcified pleural plaques related to his remote occupational asbestos exposure, but that he
saw no evidence of pulmonary fibrosis or other complications.  CX-1.   In a  report dated August 29, 1995, Dr. Shaw noted
pleural plaques and calcifications, secondary to asbestos exposure, and chronic bronchitis by history.  CX-2.  Following the
diagnosis of an asbestos-related condition, claimant filed a claim under the Act seeking
entitlement to asbestos-related medical monitoring expenses.

     In his Decision and Order, the administrative law judge initially found that
claimant suffered from pleural plaques which were caused by his work-related
exposure to asbestos.  Next, the administrative law judge denied  claimant's
request for reimbursement of future  medical monitoring expenses related to his
medical condition.   Finally, the administrative law judge determined that employer was the last longshore employer
to expose claimant to asbestos.

     On appeal, claimant asserts that the administrative law judge erred in denying
his claim for future medical benefits in the form of asbestos-related medical
monitoring expenses.  Employer, Newport News and Brown and Root have filed briefs
in response to claimant's appeal, urging affirmance of the denial of medical
expenses.  BRB No. 98-0550.  Employer, in its a cross-appeal, alleges that claimant
has failed to establish the existence of an injury under the Act; employer
additionally challenges the administrative law judge's determination that it was
the last maritime employer to expose claimant to asbestos.   Newport News, Brown
and Root, and claimant have filed briefs in response, urging affirmance of the
administrative law judge's finding that employer is the responsible employer.  BRB
No. 98-0550A.

      Initially, we reject employer's assertion that claimant has failed to
establish the existence of an injury under the Act.  Claimant need not show that
he has a specific illness or disease in order to establish that he has suffered an
injury under the Act; rather, claimant need only establish that he has sustained
some physical harm, i.e., that something has gone wrong with the human
frame. See Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)(en banc); Romeike
v. Kaiser Shipyards, 22 BRBS 57 (1989). In the instant case,  the
uncontroverted diagnoses of Drs. Foreman and Shaw establish that claimant has
chronic bronchitis, along with pleural plaques and calcifications.  Thus, something
has gone wrong within the human frame.  Accordingly, we affirm the administrative
law judge's finding that claimant has established an injury under the Act.[1]   See Romeike, 22 BRBS at 57.
     We next address claimant's challenge to the administrative law judge's decision to deny him reimbursement for the cost
of periodic future medical monitoring of his asbestos-related lung condition.  In his decision, the administrative law judge,
relying on the decision of the United States Supreme Court in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S.
424 (1997), determined that claimant was not legally entitled to recover such monitoring costs under the Longshore Act.  In
Buckley, the Supreme Court held that an employee who was exposed to asbestos, but was disease and symptom-free, could
not recover under the Federal Employees Liability Act (FELA) for negligently inflicted emotional distress, as the statute
permits plaintiffs to recover for emotional injury only if they sustain a "physical impact" as a result of defendant's
negligence.  As contact with a substance which can potentially cause disease at a substantially later time does not meet this
test, the Court held the employee could not recover damages for his emotional distress and similarly could not recover a lump
sum for medical monitoring costs that he expected to incur in the future.[2]   In rendering
its decision, however, the Court specifically noted that the parties did not dispute that an exposed employee could recover
related reasonable medical monitoring costs if and when he developed symptoms.  521 U.S. at 438.  After citing to
Buckley, the administrative law judge concluded that he could "see no distinction whatever between the FELA and the
[Longshore Act] that would justify a different holding in this case," and he therefore denied claimant's request for future
medical monitoring. See Decision and Order at 4.  For the reasons that follow, we vacate the administrative law judge's
decision on this issue, and we remand the case for further consideration.

     As the case at bar arises under the Longshore Act, rather than FELA, there are significant distinctions.  Initially,
this case does not involve issues of negligence or recovery in tort for alleged emotional distress.  Most significantly, the
administrative law judge here found claimant sustained physical injury from his exposure to asbestos, unlike Buckley
where the plaintiff sustained only exposure to a substance he feared would result in physical harm. With regard to medical
monitoring, the Court in Buckley held a lump sum tort recovery was unavailable, and this remedy is similarly
unavailable here.  The issue here is whether claimant can be reimbursed for the actual costs of medical monitoring for a
demonstrated injury.

     The Longshore Act sets forth specific provisions regarding a claimant's entitlement to medical benefits.  Specifically,
Section 7, 33 U.S.C. §907, of the Longshore Act generally describes an employer's duty to provide medical and
related services and costs necessitated by its employee's work-related injury, employer's rights regarding control of those
services, and the Secretary's duty to oversee them. See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989). 
In this regard, Section 7(a) of the Act  states that 

          [t]he employer shall furnish such medical, surgical, and other attendance or treatment ... for
          such period as the nature of the injury or the process of  recovery may require.

33 U.S.C. §907(a); see Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988).  Section 7 does not
require that an injury be economically disabling in order for claimant to be entitled to medical expenses, but requires only
that the injury be work-related, and that the medical expenses be appropriate for the injury.  Thus, in order for
a medical expense to be assessed against employer, the expense must be both
reasonable and necessary and must be related to the injury at hand. See Pardee
v. Army & Air Force Exchange Service, 13 BRBS 1130 (1981); 20 C.F.R.
§702.402.  Whether a particular medical expense is necessary is a factual
issue within the administrative law judge's authority to resolve.[3]   See Wheeler v. Interocean Stevedoring,
Inc., 21 BRBS 33 (1988).  Based upon the foregoing, we hold that the
administrative law judge erred in concluding that the Longshore Act does not
provide for the possible entitlement by a claimant to reimbursement for the cost
of future medical monitoring for a proven physical harm;  rather, such entitlement
may be established if claimant sets forth an evidentiary basis to support a finding
that such monitoring is reasonable and necessary. See Ingalls Shipbuilding, Inc.
v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14 (CRT)(5th Cir. 1993);
Romeike, 22 BRBS at 57.  In the instant case, Dr. Shaw recommended that
claimant have a follow-up examination in approximately five years, see CX-2;
in contrast, Dr. Foreman indicated that monitoring for asbestosis was not
necessary. See Foreman depo. at 9.  We therefore reverse the administrative
law judge's finding that a claimant may not recover medical monitoring costs under
the Longshore Act, and we remand the case for the administrative  law judge to
address the totality of the evidence regarding this issue pursuant to the specific
provisions of Section 7 of the Longshore Act.

     Lastly, employer, in its cross-appeal, challenges the administrative law
judge's determination that it is the responsible employer.  The standard for determining the
responsible employer was enunciated in Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied,
350 U.S. 913 (1955), which held that the last employer to expose the employee to injurious stimuli prior to his awareness of
his occupational disease is liable for compensation.  Employer bears the burden of demonstrating it is not the responsible
employer. See Lewis v. Todd Pacific Shipyards Corp., 30 BRBS 154 (1996).  In the instant case, the
administrative law judge found that employer was the last maritime employer to
expose claimant to asbestos, noting that Mr. Fisher, employer's director of
personnel, acknowledged that employer's employees were exposed to asbestos fibers
during 1983-1984.  As argued by employer on appeal, however, the administrative law
judge did not discuss the testimony of Mr. Crosby, a foreman for employer, who
testified that although there was asbestos on the vessels where employer performed
work, the pipefitters would not work on asbestos removal. CX-5.  In this regard,
Mr. Crosby further testified that subcontractors would set up zones, seal off the
zones, and that asbestos removals were done mainly on the back shift.  Id.
at 4.  Although employer's  employees were aboard ships during this period of
time, Mr. Crosby stated that they were not allowed back into the area where the
asbestos was being removed until air samples were taken.[4]   Id. at 16.   

     Decisions under the Act must comply with the Administrative Procedure Act
(APA), which requires that the administrative law judge adequately detail the
rationale behind his decision, analyze and discuss the medical evidence of record,
and explicitly set forth the reasons for his acceptance or rejection of such
evidence, in his decision. See 5 U.S.C. §557(c)(3)(A); see also
33 U.S.C. §919(d).   In light of the administrative law judge's failure to
address and analyze all of the evidence regarding the issue of responsible
employer, we vacate his determination that employer was the last maritime employer
to expose claimant to asbestos; on remand, the administrative law judge must 
reconsider this issue in light of all the relevant evidence in accordance with the
applicable legal standards and the requirements of the APA. See,  e.g., Cotton
v.  Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990);
Ballesteros, 20 BRBS at 184.

     Accordingly, the administrative law judge's determination that claimant has
sustained an injury under the Act is affirmed.  The administrative law judge's
denial of medical benefits to claimant, and his finding regarding the last employer
to expose claimant to asbestos, are vacated, and the case is remanded for further
consideration consistent with this opinion.


                         ROY P. SMITH
                         Administrative Appeals Judge

     I concur:                                                     
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

     McGRANERY, Administrative Appeals Judge, concurring:

     I concur in the Board's decision vacating both the administrative law judge's
denial of medical monitoring expenses and the administrative law judge's
determination that employer was the last longshore employer to expose claimant to
asbestos.  I also concur in the Board analysis of the last employer issue.  I write
separately, however, because I view differently the import of the Supreme Court's
decision in Metro-North Commuter Railroad Co.  v.  Buckley, 521 U.S. 424

     In Buckley, the Supreme Court did not purport to provide a definitive
statement on the circumstances under which an employer which had exposed an
employee to asbestos would be held liable for medical monitoring for asbestosis. 
The High Court addressed only the issue of whether a lump sum payment for medical
monitoring expenses could be required of an employer under the FELA, solely because
it had exposed the employee to asbestos.  The Court held that exposure alone
provided an insufficient basis to require from employer a payment for medical
monitoring expenses.[5]   

     In the instant case, claimant seeks medical monitoring for asbestosis, not
just because he was exposed to asbestos, but because as a result of that exposure
he developed pleural plaques and calcification.[6] 
 It is well established, as the majority asserts, that pleural plaques can
constitute an injury under the Longshore Act.   See Romeike v. Kaiser
Shipyards, 22 BRBS 57 (1989).   Since the evidence is uncontradicted that
pleural plaques result from asbestos exposure, the Longshore Act imposes liability
upon the responsible employer to pay for all medical treatment reasonable and
necessary for this condition.  33 U.S.C. §907(a).  Hence, if claimant ever
develops persuasive evidence that medical monitoring for asbestosis is reasonable
and necessary for his treatment in connection with this condition, he is entitled
to payment for those expenses.  

     Claimant's right to reasonable and necessary medical expenses is not affected
by the Court's decision in Buckley.  The Supreme Court vacated the Second
Circuit's decision establishing claimant's right to employer's payment for medical
monitoring because the High Court was concerned about judicial creation of a legal
right which did not otherwise exist; the Court did not seek to limit any right to
medical monitoring currently provided by law or contract.  Although the record
contains meager evidence on the reasonableness and necessity of monitoring claimant
for asbestosis, I agree with the majority that the case must be remanded for the
administrative law judge to consider the evidence.  The administrative law judge
should direct the responsible employer to pay for all medical expenses which
claimant proves are reasonable and necessary for treatment relating to claimant's
pleural plaques. 

     In sum, I agree with the majority's decision to vacate the administrative law
judge's Decision and Order and to remand the case for consideration of all relevant
evidence on both the issues of claimant's right to medical monitoring and the
proper designation of the responsible employer.   

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document


1)Once claimant establishes the existence of a harm and of working conditions which could have caused it, in this case, asbestos exposure, Section 20(a) is invoked, shifting the burden to employer to prove that claimant's condition was not caused or aggravated by his work environment. In this case, both doctors attributed claimant's pleural plaques and calcifications to his asbestos exposure; thus, claimant's injury is indisputably work-related. Under the aggravation rule, moreover, the relative contributions of work-related and non work-related conditions are not apportioned; thus, if a work-related condition combines with a prior disease, the entire resulting condition is compensable. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d 327, 15 BRBS 52 (CRT)(4th Cir. 1982). Back to Text
2)The Court noted that cases authorizing payment for medical monitoring in the absence of physical injury did not endorse a traditional tort remedy of lump-sum damages, but imposed limitations on the recovery. Thus, the Court concluded that FELA did not contain an unqualified right to a tort recovery based on medical monitoring. Back to Text
3)In order for treatment costs to be paid by employer, the treatment must also be authorized. 33 U.S.C. §907(d). Where employer refuses authorization, however, treatment procured thereafter need only be reasonable and necessary for employer to be liable. See Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT)(5th Cir.), cert. denied, 479 U.S. 826 (1986). Back to Text
4)The administrative law judge also failed to discuss that portion of Mr. Fisher's testimony that would support Mr. Crosby. Mr. Fisher gave a similar accounting of how employer "contracted-out" asbestos removal projects, and that the areas where the work was being done were sealed off. CX-6 at 27. Back to Text
5)As Justice Ginsburg points out in her dissent, the majority's discussion of its holding on this issue is not clear. We need not, however, address the nuances of the majority's opinion because they are not relevant to the issue presented in the case above. Back to Text
6)The medical evidence did not attribute claimant's chronic bronchitis to asbestos exposure. See Cl.'s Exs. 1, 2. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document