Skip to page content
Benefits Review Board
Bookmark and Share

                                   BRB No. 89-6002

JOHN CLARK                              )
          Claimant-Respondent           )
       v.                               )
                                        )    DATE ISSUED:   01/27/1995
NATIONAL STEEL AND                      )
SHIPBUILDING COMPANY                    )
          Self-Insured                  )
          Employer-Petitioner           )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of Henry B. Lasky, Administrative Law
     Judge, United States Department of Labor.

     Diane L. Middleton, San Pedro, California, for claimant.

     Roy D. Axelrod (Littler, Mendelson, Fastiff & Tichy), San Diego,
     California, for self-insured employer.

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


     Employer appeals the Decision and Order Awarding Benefits (88-LHC-1473) of
Administrative Law Judge Henry B. Lasky 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
administrative law judge's 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); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).

     Claimant worked for employer continuously from 1963 to 1986.  From 1963 until
1981, claimant worked as a pipefitter, and from 1981 until 1986, he was a chief
shop steward. Tr. at 27-29, 42.  During the course of his employment, claimant was
exposed to asbestos, fumes, dust, noise, and solvents.  He states that he stopped
working on May 16, 1986, because he suffered from stress, breathlessness, and ear
and chest pains. Tr. at 30, 32-34, 41, 45-47, 49-50.  On July 18, 1986, claimant
filed a claim for compensation under the Act due to exposure to toxic and noxious
substances, extreme noise, tension, pressure, and harassment. Emp. Ex. 1.  He was
officially retired from employment on September 4, 1987, and, in August 1988,
employer initiated payment of permanent partial disability benefits under the Act,
as calculated from October 7, 1987. Emp. Exs. 7, 9-10, 20.  Additionally, between
1980 and 1987, claimant's third-party litigation resulted in settlements with 14
asbestos manufacturers and suppliers for a total of $42,850, of which he received
$26,741.92.[1]  Cl. Ex. 10.  During this time,
claimant was diagnosed with asbestosis, small airways disease, glaucoma, cognitive
impairment, hypertension, and possibly Parkinson's disease. Tr. at 56, 60, 90-93;
Cl. Ex. 11 at 10-11; Emp. Exs. 11, 17.

     On May 23, 1989, the administrative law judge conducted a formal hearing,
wherein claimant and employer disputed, inter alia, the date of injury, the
cause, nature and extent of claimant's disability, whether Sections 12, 13 and/or
33(g) of the Act, 33 U.S.C. §§912, 913, 933(g), bar the claim, and
whether employer is entitled to a credit against claimant's net third-party
settlements.  The administrative law judge determined that the date of injury was
May 16, 1986, and that the claim filed on July 18, 1986, was not barred by either
Section 12 or 13. Decision and Order at 8.  Further, he found that claimant suffers
from work-related pulmonary problems, which forced him to retire, and, given his
overall condition, he is permanently totally disabled from working and is entitled
to medical benefits and to compensation based upon his average weekly wage of $515.
Id. at 7, 11-12, 14-15.  The administrative law judge also awarded employer
Section 8(f), 33 U.S.C. §908(f) (1988), relief but held it liable for a
Section 14(e), 33 U.S.C. §914(e), penalty and an attorney's fee. Id.
at 13-15.  With regard to employer's Section 33(g) contention, the administrative
law judge concluded that, as claimant was not a "person entitled to compensation"
at the time he settled his third-party claims, in that employer was not then paying
benefits, see Dorsey v. Cooper Stevedoring, Inc., 18 BRBS 25 (1986), Section
33(g) does not bar the claim. Decision and Order at 8.  However, as the record
contains evidence of over $26,000 in net settlement proceeds, he determined that
employer is entitled to a Section 33(f), 33 U.S.C. §933(f), credit. Id.
at 8-9.

     Employer now appeals the decision, and claimant responds, urging affirmance. 
Employer contends the administrative law judge erred in failing to find that the
claim is barred by Sections 12 and/or 13 of the Act.  It also argues, in light of
the decision of the Supreme Court of the United States in Estate of Cowart v.
Nicklos Drilling Co., ___ U.S. ___, 112 S.Ct. 2589, 26 BRBS 49 (CRT) (1992),
that Section 33(g) bars the claim for compensation.  Additionally, employer
contends the administrative law judge erred in crediting claimant's testimony in
concluding that claimant's job-related condition, as opposed to his non-industrial
conditions, prevents him from continuing to work and in finding that employer
failed to establish the availability of suitable alternate employment.

     Initially, employer contends this claim is barred by Sections 12 and/or 13 of
the Act.  It asserts that claimant was aware of the relationship between his
employment, his disease, and his disability as early as 1981, and, consequently,
the claim filed in 1986 is untimely.  In a case involving an occupational disease
which does not immediately result in death or disability, Section 12(a) of the Act,
33 U.S.C. §912(a) (1988), requires an employee to notify his employer of the
injury within one year of the time he becomes "aware, or by the exercise of
reasonable diligence or by reason of medical advice should have been aware, of the
relationship between the employment, the disease, and the death or disability." 
Similarly, in occupational disease cases, Section 13(b)(2) requires the employee
to file a claim for compensation within two years after the date of awareness. 33
U.S.C. §913(b)(2) (1988).

     The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction the present case arises, has held that the limitations periods do not
commence until the employee becomes aware "that his injury has resulted in the
impairment of his earning power." Abel v. Director, OWCP, 932 F.2d 819, 821,
24 BRBS 130, 134 (CRT) (9th Cir. 1991) (citing Todd Shipyards Corp. v.
Allan, 666 F.2d 399, 14 BRBS 427 (9th Cir. 1982), cert. denied, 459 U.S.
1034 (1982)); see also Argonaut Insurance Co. v. Patterson, 846 F.2d 715,
21 BRBS 51 (CRT) (11th Cir. 1988); Bechtel Associates, P.C. v. Sweeney, 834
F.2d 1029, 20 BRBS 49 (CRT) (D.C. Cir. 1987).  Further, the Ninth Circuit has held
that an employee is not "injured for the purposes of the statute of limitations
until `he [becomes] aware of the full character, extent and impact of the harm done
to him.' " J.M. Martinac Shipbuilding v. Director, OWCP, 900 F.2d 180, 183,
23 BRBS 127, 129 (CRT) (9th Cir. 1990) (quoting Allan, 666 F.2d at 401, 14
BRBS at 429).  Pursuant to these decisions, the Board has held that the time
limitations in Sections 12 and 13 do not begin to run until an employee is aware
or should have been aware of the relationship between his employment, his disease
and an actual, not a potential, disability which impairs his wage-earning capacity.
Love v. Owens-Corning Fiberglas Co., 27 BRBS 148 (1993); see also Welch
v. Pennzoil Co., 23 BRBS 395 (1990); 20 C.F.R. §§702.212(b),

     In this case, claimant worked as a pipefitter until 1981 when he became a
chief shop steward.  Employer contends that claimant became aware of the
relationship between his employment, disease, and disability at this time.  To
support its contention, employer offers the report of Dr. Hughson, dated October
16, 1987, wherein the doctor noted in his background summary that claimant became
a chief shop steward in order to obtain a less physically demanding job. Emp. Ex.
17 at 1.  Additionally, employer argues that the record contains ample evidence of
claimant's history of pre-1986 breathing problems. See Emp. Exs. 11, 19. 
Claimant maintains that he was appointed shop steward in 1981 and that he was
elected chief shop steward thereafter.  He states he declined to run for the
position again and he quit his job in 1986 because of his breathing difficulties.[2]  Tr. at 42, 49-51.

     The administrative law judge determined that claimant's condition did not
impair his earning power until May 1986 when he stopped working.  Decision and
Order at 8.  This finding is supported by substantial evidence in the record. 
Although claimant became a chief shop steward in 1981 and no longer performed the
duties of a pipefitter, he was still classified as a pipefitter until his
retirement and the administrative law judge found that there is no evidence of a
loss in claimant's wage-earning capacity prior to May 1986. See generally Morin
v. Bath Iron Works Corp., ___ BRBS ___, BRB No. 92-947 (Aug. 22, 1994); Tr. at
28-29.  As the limitations periods of Sections 12 and 13 do not begin to run until
an employee knows the full character, extent, and impact of the harm done to him,
i.e. when he knows of an actual and not a potential impairment to his
earning power, see Harris v. Todd Pacific Shipyards Corp., ___ BRBS ___, BRB
No. 93-2227 (Oct. 25, 1994); Love, 27 BRBS at 152-153, the administrative
law judge rationally found that, although claimant was aware of the relationship
between his employment and his disease in 1980, his "customary job was not hampered
until May 16, 1986." Decision and Order at 6.  Therefore, we reject employer's
statute of limitations argument, and we affirm the administrative law judge's
determination that claimant's claim is not barred by either Section 12 or 13.

     Next, employer contends that claimant's claim is barred by Section 33(g) of
the Act.  Citing the Supreme Court's decisions in Harper v. Virginia Dep't of
Taxation, ___ U.S. ___, 113 S.Ct. 2510 (1993), and in Cowart, 112 S.Ct.
at 2589, 26 BRBS at 49 (CRT), employer argues that the Cowart holding should
be applied to this case.  Specifically, it asserts that, because claimant failed
to obtain its prior written approval of numerous third-party settlements, as
required by Section 33(g)(1), and because he failed to give timely notice of the
settlements, as required by Section 33(g)(2), claimant should be barred from
receiving compensation under the Act.

     The Board has recently addressed the issue of the retroactivity of the
Cowart decision to cases pending at the time of the its issuance.  In
Kaye v. California Stevedore & Ballast, ___ BRBS ___, BRB No. 93-1085 (Oct.
19, 1994), the Board held that the decision in Cowart is to be applied in
pending cases. Kaye, slip op. at 11; see also Linton v. Container
Stevedoring Co., ___ BRBS ___, BRB No. 93-427 (Oct. 27, 1994).  Consequently,
the Supreme Court's decision in Cowart applies to this case.

     In this regard, employer argues that the administrative law judge erred in
determining that claimant is not a "person entitled to compensation."  The Supreme
Court defined a "person entitled to compensation" as one whose rights to
compensation have vested and rejected the Board's definition of such a person as
set forth in Dorsey, 18 BRBS at 25. Cowart, 112 S.Ct. at 2595, 26
BRBS at 51-52 (CRT).  More specifically, the Court stated:
     Cowart suffered an injury which by the terms of the LHWCA gave him a
     right to compensation from his employer.  He became a person entitled to
     compensation at the moment his right to recovery vested, not when his
     employer admitted liability, an event yet to happen.

Id.  The Board has interpreted the Court's language as indicating that a
claimant's right to compensation vests at the "time of injury," making the claimant
a "person entitled to compensation" from that time forward. Harris, slip op.
at 7; Glenn v. Todd Pacific Shipyards Corp., 27 BRBS 112 (1993)(Smith, J.,
concurring in the result), aff'g 26 BRBS 186 (1993).  The Board also
determined that, in cases involving occupational diseases, the "time of injury"
occurs when the employee is aware of the relationship between the disease, the
disability and the employment. Harris, slip op. at 9; Glenn, 27 BRBS
at 115; Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78
(1989).   Because the decision in Cowart was issued after the administrative
law judge's decision in this case, we vacate his finding that claimant is not a
"person entitled to compensation," and we remand the case for further consideration
of this issue in accordance with Cowart, 112 S.Ct. at 2593, 2597, 26 BRBS
at 51, 53 (CRT). See Linton, slip op. at 5-7; Harris, slip op. at 12-14; Krause v. Bethlehem Steel Corp., ___ BRBS ___, BRB No. 89-3165 (Dec. 30,

     Although this case must be remanded for further consideration of the
applicability of Section 33(g), we nonetheless shall address employer's remaining
contentions on appeal.  Employer challenges the administrative law judge's finding
that claimant is permanently totally disabled.  It argues that claimant's testimony
should not be credited because it contains numerous discrepancies.[3]   Further, it argues that the administrative law
judge erred in finding that claimant's inability to return to his usual work is
prevented by his work-related pulmonary condition as opposed to his non-industrial
glaucoma, and, alternatively, that it presented sufficient evidence of suitable
alternate employment such that, at most, claimant is only permanently partially

     In this case, claimant testified he stopped working and is unable to return
because of his breathing problems. Tr. at 49.  Dr. Dahlgren, claimant's physician,
determined that claimant stopped working because of shortness of breath, and he
found that claimant has work-related asbestosis. Cl. Ex. 1 at 1, 11.  Dr. Dahlgren
also noted that claimant's pulmonary function studies revealed a normal vital
capacity but impaired flow rates in the small airways, and his chest x-rays showed
arteriosclerosis compatible with chronic obstructive pulmonary disease, pleural
plaques compatible with pleural asbestosis, and parenchymal changes compatible with
interstitial fibrosis and asbestosis.  Dr. Dahlgren concluded that claimant has a
"Class III or moderate to greater than moderate impairment[,]" requiring him to be
restricted to "semi-sedentary to light work" free from "atmospheres of respiratory
irritants. . . ." Id. at 9-12.  Dr. Hughson, on whose testimony employer
relies, stated in his report that claimant stopped working because of his
respiratory and visual difficulties; however, he detected no evidence of
restrictive lung disease.  Emp. Ex. 17 at 1, 10.  Although Dr. Hughson found
evidence of pleural plaques due to asbestos exposure, he found no evidence of
interstitial fibrosis or restrictive lung disease, and he concluded that claimant's
small airways disease is not disabling.  He opined that claimant is a Class II
individual with a 10 percent permanent impairment of the whole person due in part
to industrial exposures, but that claimant does not yet have a need for medical
treatment for his lung condition. Id. at 9-11.

     The administrative law judge accepted the similarities between the two
doctors' opinions regarding the existence of pulmonary disease and concluded that
claimant ceased working on May 16, 1986, because of his pulmonary disease,
rejecting employer's argument that claimant's non-industrial conditions,
specifically his end-stage glaucoma, forced his retirement.[4]  Decision and Order at 11.  We also reject employer's contention. 
Questions of witness credibility, including those involving medical witnesses, are
for the administrative law judge as the trier-of-fact. Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  It
is solely within his discretion to accept or reject all or any part of any
testimony according to his judgment. Perini Corp. v. Heyde, 306 F.Supp. 1321
(D.R.I. 1969).  Because both doctors agree that claimant left work, at least in
part, due to his pulmonary problems, it is rational for the administrative law
judge to have so concluded.  Therefore, contrary to employer's arguments, claimant
is not a voluntary retiree limited to a permanent partial disability award based
on his percent of impairment pursuant to Section 8(c)(23). 33 U.S.C.
§§908(c)(21), (23), 910(d)(2) (1988); see generally Morin, slip
op. at 3-4.

     Employer further contends that, if only his pulmonary condition is considered,
claimant is able to return to his usual work.  Claimant testified he cannot return
to work.  Dr. Dahlgren concluded that claimant cannot return to his work at the
shipyard and that if he cannot be rehabilitated into the labor market, he is
permanently totally disabled from all work. Cl. Ex. 1 at 12-13, 16.  Dr. Hughson
opined that claimant's pulmonary condition does not prevent him from returning to
work as a pipefitter, but that the combination of claimant's other conditions may
prevent such a return. Emp. Ex. 18.  On this matter, the administrative law judge
credited the testimony of claimant and his physician over the testimony of
employer's witnesses.  As the record contains evidence to support this credibility
determination, we affirm the finding that claimant cannot return to his usual work.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  Thus, claimant has
established a prima facie case of total disability. Chong v. Todd Pacific
Shipyards Corp., 22 BRBS 242 (1989), aff'd mem. sub nom. Chong v. Director,
OWCP, 909 F.2d 1488 (9th Cir. 1990).

     Once a claimant demonstrates total disability, the burden shifts to the
employer to establish the availability of specific jobs the claimant can
realistically secure and perform given his age, education, physical restrictions
and vocational history. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21
BRBS 122 (CRT) (9th Cir. 1988).  In this case, employer presented a labor market
study, dated November 29, 1988, as evidence of the availability of suitable
alternate employment.  The study located seven positions:  golf starter, signal
operator, gate tender, fast food worker, telephone interviewer, answer service
operator, and taxi dispatcher. Emp. Ex. 22.  The administrative law judge
determined that these positions are unsuitable for claimant given his physical and
cognitive limitations.[5]   Decision and Order at
12; see also Cl. Exs. 1, 6, 11 at 36; Emp. Ex. 28.  For example, he noted
that the golf starter position requires some knowledge of golf, the signal operator
position requires keyboard skills, and the gate tender position requires the
prospective employee to pass a guard test. Decision and Order at 12; Emp. Ex. 22. 
The administrative law judge also determined that the fast food position is
unsuitable for claimant because the report indicates he may be exposed to some
strong or toxic odors which would not be beneficial for him.  We affirm the
administrative law judge's finding that these positions do not constitute suitable
alternate employment as the administrative law judge rationally found the positions
unsuitable given claimant's abilities and restrictions. See generally Johnson
v. Director, OWCP, 911 F.2d 247, 24 BRBS 3 (CRT)(9th Cir. 1990) cert.
denied, 111 S.Ct. 1582 (1991).  
     With regard to the remaining positions identified by employer, the
administrative law judge gave no specific reason for finding them unsuitable,
stating merely:  "The last three positions are similarly not suited for the
Claimant." Decision and Order at 12.  Because the administrative law judge did not
specifically explain his reasons for finding the telephone interviewer, answer
service operator, or taxi dispatcher positions unsuitable, we remand the case for
him to reconsider the suitability of these jobs in light of claimant's age and
abilities. See generally Bryant v. Carolina Shipping Co., 25 BRBS 294
(1992).  If the administrative law judge finds that suitable alternate employment
is established, he must determine claimant's post-injury wage-earning capacity and
award benefits pursuant to Section 8(c)(21) and (h), 33 U.S.C. §908(c)(21),

     Accordingly, the administrative law judge's finding that Section 33(g) is
inapplicable  and his award of permanent total disability benefits are vacated, and
the case is remanded for further consideration in accordance with this opinion. 
In all other respects, the Decision and Order is affirmed.


                                        ROY P. SMITH
                                        Administrative Appeals Judge

                                        NANCY S. DOLDER
                                        Administrative Appeals Judge

                                        REGINA C. McGRANERY
                                        Administrative Appeals Judge

To Top of Document


1)Claimant recovered $11,584.50 from 10 settlements prior to May 16, 1986, the date he stopped working. Cl. Ex. 10. Back to Text
2)Employer argues that claimant's retirement is based on a disability caused by glaucoma. Emp. Ex. 24; Tr. at 209-210. Back to Text
3)For example, employer alleges there are discrepancies between claimant's deposition and trial testimony concerning the number of hours per week claimant spent on inspections, the number of packs of cigarettes claimant smoked per day, the degree of claimant's vision problems, and whether claimant had been informed of his asbestosis. The administrative law judge did not discuss these in his decision, but relied primarily on the physicians' opinions of record. Back to Text
4)The administrative law judge gave little weight to the evidence showing that claimant "officially" received a disability retirement due to glaucoma, and he found no evidence to corroborate the clinic physicians' statement that claimant is "legally blind," in light of claimant's continued ability to drive his car. Decision and Order at 11. Back to Text
5)Drs. Boone and Baser, licensed psychologists consulted by claimant and employer, respectively, determined that claimant's battery of cognitive tests revealed memory problems and difficulties learning new skills and retaining that information over a period of time. Cl. Ex. 6; Emp. Ex. 28. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document