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                                  BRB Nos. 92-1424 
                                     and 92-1424A

EARL PASS, SR.                          )
                                        )
          Claimant-Respondent           )
          Cross-Petitioner              )
                                        )
                                        )
     v.                                 )    
                                        )
BATH IRON WORKS CORPORATION             )    
                                        )
                                        )
     and                                )
                                        )
LIBERTY MUTUAL INSURANCE                )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    
          Cross-Respondents             )    
                                        )
     and                                )
                                        )
BATH IRON WORKS CORPORATION             )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
     and                                )    DATE ISSUED:   01/30/1995
                                        )
BATH IRON WORKS CORPORATION             )
                                        )
     and                                )
                                        )
BIRMINGHAM FIRE INSURANCE               )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION AND ORDER

     Appeals of the Decision and Order Awarding Benefits of Martin J. Dolan,
     Jr., Administrative Law Judge, United States Department of Labor.
     Marcia J. Cleveland (McTeague, Higbee, Libner, MacAdam, Case & Watson),
     Topsham, Maine, for claimant.

     Stephen D. Bither (Monaghan, Leahy, Hochadel & Libby), Portland, Maine,
     for self-insured employer.

     Allan M. Muir (Richardson & Troubh), Portland, Maine, for Bath Iron
     Works and Liberty Mutual Insurance Company.

     James C. Hunt (Robinson, Kriger, McCallum & Greene), Portland, Maine,
     for Bath Iron Works and Birmingham Fire Insurance Company.

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

     PER CURIAM:

     Bath Iron Works Corporation and Liberty Mutual Insurance Company (Liberty
Mutual) appeal and claimant cross-appeals the Decision and Order Awarding Benefits
(89-LHC-808, 809) of Administrative Law Judge Martin J. Dolan, 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).  

     Claimant was exposed to asbestos while working as a material handler for Bath
Iron Works Corporation from 1940 until 1989.  On May 7, 1981, claimant was informed
by the shipyard physician, Dr. Zeller, that there was a possibility that he had an
asbestos-related lung disease.  After consulting with a number of physicians,
claimant was hospitalized for short periods for his respiratory condition.[1]   Claimant sought temporary total disability
compensation under the Act for these periods. See 33 U.S.C. §908(b). 
With the exception of these distinct periods of temporary disability while he was
hospitalized, claimant continued to perform his usual work for employer and
continued to be exposed to asbestos until he retired as a result of his pulmonary
condition, on April 30, 1989. 

     In a Decision and Order dated June 8, 1987, the administrative law judge
awarded claimant temporary total disability compensation based upon his average
weekly wage as of May 7, 1981, the date claimant first learned of the work-related
nature of his respiratory condition from Dr. Zeller.  The administrative law judge
further determined that Liberty Mutual, the carrier providing coverage between March 1, 1981 and August 31, 1986,
was liable as the responsible carrier because it was the carrier on the risk when
claimant was last exposed to injurious stimuli prior to his May 7, 1981, date of
awareness.  This decision was not appealed.  

      On July 7, 1990,  claimant filed another claim, seeking permanent total
disability compensation commencing on April 30, 1989, the date he retired.  In a
Decision and Order Awarding Benefits dated February 16, 1992, the administrative
law judge initially determined that because his prior findings as to claimant's
asbestos exposure, his May 7, 1981, date of awareness, and the identity of the
responsible carrier were res judicata, these issues could not be re-litigated.[2]   He did, however, find that based
on the medical evidence submitted claimant's asbestosis, which had rendered him
temporarily totally disabled at various times in 1982, 1983, and 1984, had
progressively worsened to the level that claimant was unable to continue working
at his usual job, and was forced to retire on April 30, 1989.  He thus found that
claimant was permanently and totally disabled due in part to his asbestosis as of
April 30, 1989, noting that employer failed to demonstrate the availability of
suitable alternate employment. Decision and Order at 8.  Although the
administrative law judge found that pursuant to his initial decision the applicable
date of injury was May 7, 1981, he nonetheless determined that the average weekly
wage for the award of permanent total disability compensation was $434.91, based
on claimant's average weekly earnings during the 52-week period prior to his
retirement on April 30, 1989. Id. at 9.  The administrative law judge also
awarded claimant medical benefits pursuant to Section 7 of the Act, 33 U.S.C.
§907, and interest, and awarded Liberty Mutual a credit of $1,900 for the
proceeds claimant received as a result of a third-party settlement. See 33
U.S.C. §933.  

     On appeal, Liberty Mutual challenges the administrative law judge's
determination in his second Decision and Order that because the question of
responsible carrier had previously been decided in his initial decision it was
entitled to res judicata effect.  Bath Iron Works (Bath Iron), in its
capacity as a self-insured employer responds, urging affirmance.  Birmingham Fire
Insurance Company also responds, agreeing with the self-insured employer.[3]   Liberty Mutual replies, reiterating its position
that Bath Iron should be held responsible, citing Liberty Mutual Insurance Co.
v. Commercial Union Insurance Co., 978 F.2d 750, 26 BRBS 85 (CRT) (1st Cir.
1992), as controlling authority.


     Claimant cross-appeals, arguing that the administrative law judge erred in
adopting the May 7, 1981, date of injury from the first claim rather than finding
his April 30, 1989, retirement date to be the proper date of injury, as this was
the date he first became aware that his worsening breathing problems would
permanently force him to retire.  Citing Spear v. General Dynamics Corp.,
25 BRBS 254 (1991), claimant contends that because he sustained aggravating
exposure up until he retired, he sustained a new injury on April 30, 1989, and the
administrative law judge accordingly properly based the award of permanent total
disability compensation on his average weekly wage at that time.  Claimant also
maintains that Liberty Mutual's argument that May 7, 1981 should be employed as the
date of injury for purposes of determining the average weekly wage ignores the fact
that this case involves a separate claim based on the aggravation of his condition
since his first claim and that, pursuant to Section 10(c), 33 U.S.C. §910(c),
the administrative law judge has the discretion to use an average weekly wage which
reflects claimant's lost earnings, even if that wage is determined as of a
different date than the date of injury as defined by Section 10(i), 33 U.S.C.
§910(i)(1988).  Bath Iron responds to claimant's cross-appeal, reiterating
that the administrative law judge's initial determinations regarding claimant's
date of awareness and the responsible carrier are res judicata.  It further
asserts that claimant's reliance on Spear is misplaced because, while there
arguably can be several dates of awareness with regard to the extent of claimant's
hearing loss, each one determined by additional industrial exposure, there is no
degree of quantification which can be ascribed to asbestos exposure.  Bath Iron
also asserts that while hearing loss will not progress in the absence of additional
exposure, asbestosis is, in and of itself, a progressive disease.  

     Initially, we agree with Liberty Mutual that the administrative law judge
erred in finding reconsideration of the responsible carrier issue barred by res
judicata.  The principle of res judicata or claim preclusion precludes
re-litigation of a subsequent action between the same parties on the same cause of
action. See Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989).  In the present
case, however, there are two separate claims; the first being limited to four
distinct periods of temporary total disability compensation which were the subject
of the administrative law judge's initial decision, and the second being a claim
for permanent total disability benefits after claimant retired.  As the parties in
the present case were not attempting to re-litigate the same cause of action when
the case came before the administrative law judge the second time, the doctrine of
res judicata does not apply.  Accordingly, we reverse the administrative law
judge's finding in his second Decision and Order that inasmuch as he had previously
determined the identity of the responsible carrier in his initial decision,
reconsideration of the responsible employer was res judicata and accordingly
could not be relitigated. 

     We further note that reconsideration of the responsible carrier issue is also
not barred under the related doctrine of collateral estoppel.  Under the doctrine
of collateral estoppel, re-litigation of an issue necessarily and actually
litigated in a prior adjudication is precluded where the parties or their privies
had a full and fair opportunity to litigate the issue.  Whether the application of
collateral estoppel is appropriate necessitates four inquires; first, whether the
party to be estopped was a party or assumed control of the prior litigation;
second, whether the issues presented are in substance the same as those resolved
in the earlier litigation; third, whether the controlling facts or legal principles
have changed significantly since the earlier judgment; and finally whether other
special circumstances warrant an exception to the normal rules of preclusion.
See Montana v. United States, 440 U.S. 147, 153-155 (1979); Klein v.
C.I.R., 880 F.2d 260, 262-263 (10th Cir. 1989).  In the present case, although
the responsible carrier issue was litigated in the initial proceedings, the
operative facts changed significantly since the administrative law judge's initial
adjudication; claimant returned to work after the periods of temporary total
disability compensation and received additional injurious exposure.  Inasmuch as
collateral estoppel of a judgment does not prevent re-examination of the same
questions between the same parties where, as here, the facts have changed or new
facts have occurred which may alter the legal rights or relations of the litigants,
we hold that collateral estoppel was also not an impediment to the administrative
law judge's reconsideration of the responsible carrier issue in the second
proceedings in this case. See  50 C.J.S. §712(b).

     In light of our determination that consideration of the responsible carrier
issue is not barred on res judicata or collateral estoppel principles, we
direct out attention to the parties' arguments relating to this issue.  The basic
premise of Liberty Mutual's argument on appeal is that it is not the responsible
carrier because claimant received subsequent exposure to injurious stimuli while
Bath Iron was on the risk as a self-insured employer and that this exposure
aggravated his underlying condition, resulting in his permanent total disability
on April 30, 1989.  Liberty Mutual avers that consistent with the recent opinion
of the United States Court of Appeals for the First Circuit in Liberty
Mutual, 978 F.2d at 750, 26 BRBS at 85 (CRT), the responsible carrier is the
carrier on the risk when claimant first becomes disabled. While recognizing that
Liberty Mutual did not arise in a situation such as the present case where
claimant experienced an earlier period of disability and need for medical care
which was deemed the responsibility of a prior carrier, Liberty Mutual avers that
the First Circuit's pronouncement is consistent with the rules of aggravation
articulated by the Board in Spear v. General Dynamics Corp., 25 BRBS 254
(1991).[4] 
     Bath Iron argues, however, that even if the administrative law judge's prior
findings regarding the responsible carrier are not entitled to res judicata
effect, his determination that Liberty Mutual is liable as the responsible
carrier is nonetheless affirmable, as the administrative law judge provided an
adequate factual basis for finding that claimant's permanent total disability is
the extension and natural progression of the original 1981 injury.  Moreover, the
self-insured employer asserts that the argument that, due to claimant's subsequent
exposure to asbestos after Liberty Mutual was no longer on the risk, the subsequent
carrier should be held responsible, is not consistent with the rule enunciated in
Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.) cert.
denied, 350 U.S. 913 (1955).  Bath Iron argues that Cardillo focuses on
exposure to injurious stimuli prior to the date of awareness and not on the date
of last exposure under any circumstances.  

     We conclude that this case must be remanded for reconsideration of the
responsible carrier issue, as the administrative law judge did not render findings
on this issue based on the facts relating to the present claim and on current case
precedent.  The standard for determining the responsible employer or carrier was
first enunciated in Cardillo, 225 F.2d at 137.  Pursuant to Cardillo,
the last employer or carrier to expose the employee to injurious stimuli prior to
his awareness of his occupational disease is liable under the Act. See also
Todd Shipyard Corp. v. Black, 717 F.2d 1280, 16 BRBS 13 (CRT)(9th Cir.
1983), cert. denied, 466 U.S. 937 (1984).  Liberty Mutual argues that it is
not the responsible carrier because claimant received subsequent exposure to
injurious stimuli when it was no longer on the risk and that this exposure
aggravated his occupational lung condition, resulting in his permanent total
disability.  Bath Iron responds that the administrative law judge's finding that
Liberty Mutual is liable as the responsible carrier can be affirmed even if his
prior determination is not accorded res judicata effect because he
reasonably concluded in his second decision that claimant's permanent total
disability was due to the natural progression of the initial May 5, 1981 injury. 
Neither argument actually provides the correct analysis, however, as actual
causation is irrelevant to carrier liability in occupational disease cases.
Pursuant to Cardillo, the last employer or carrier to expose claimant to
potentially injurious stimuli prior to claimant's date of awareness of his
occupational injury is liable regardless of whether that exposure actually
contributed to claimant's disability. Franklin v. Dillingham Ship Repair,
18 BRBS 198 (1986); see also Lustig v. Todd Shipyards Corp., 20 BRBS
207, 213 (1988), aff'd in pert. part and rev'd in part sub nom. Lustig v. U. S.
Dep't of Labor, 881 F.2d 593, 22 BRBS 159 (CRT)(9th Cir. 1989). 

     Bath Iron also argues that because claimant was aware that he had a work-related lung condition in 1981 and sustained distinct periods of disability shortly
thereafter, the administrative law judge properly determined that his date of
awareness for purposes of assessing carrier liability occurred while Liberty Mutual
was on the risk.  This argument, however, is of dubious validity in light of the
United States Court of Appeals for the First Circuit's decision in Liberty
Mutual, supra. In Liberty Mutual, the First Circuit, within whose
jurisdiction this case arises, held that in cases where claimant's awareness that
he suffers from an occupational disease and his disability from that disease do not
coincide, the date on which the worker suffers a diminution of earning capacity is
the operative date of awareness for purposes of assigning carrier liability under
the Cardillo last-injurious exposure rule.[5]   In the present case, claimant was awarded temporary total disability
compensation in the initial decision for the periods during which he had been
hospitalized in 1982, 1983, and 1984.  The administrative law judge, however,
credited claimant's testimony and the opinions of his physicians, that with the
exception of the periods of hospitalization, claimant was able to perform his usual
work.  Moreover, claimant continued to be exposed to asbestos until the end of his
employment.  In his second decision, in determining the applicable average weekly
wage for the award of permanent total disability, the administrative law judge
found that April 30, 1989, marked the onset of claimant's permanent total
disability and the date on which his occupational disease first affected his wage-earning capacity, and thus was claimant's date of awareness for purposes of average
weekly wage. See 33 U.S.C. §910(i). Liberty Mutual indicates
that the date on which the worker suffers a diminution in his earning capacity is
the date of disablement and that awareness for purposes of determining carrier
liability turns on knowledge of the relationship between the injury, disease and
death or disability.  As the administrative law judge's decisions contain findings
which suggest that claimant's wage-earning capacity was not adversely affected
until after Liberty Mutual was no longer on the risk, we vacate the administrative
law judge's finding that Liberty Mutual is liable as the responsible carrier and
remand for him to reconsider this issue consistent with Liberty Mutual.  

     It is apparent from the foregoing that the same date of awareness is relevant
in determining the responsible carrier under Liberty Mutual and claimant's
average weekly wage.  As these determinations must be made consistently based on
the date that claimant becomes aware of the relationship between his employment,
his disease and his disability, the administrative law judge's average weekly wage
finding is also vacated. See  Argonaut Insurance Co. v. Patterson, 846 F.2d
715, 21 BRBS 51 (CRT)(11th Cir. 1988); Sans v. Todd Shipyards Corp, 19 BRBS
24 (1986).  On remand, if the administrative law judge concludes that claimant did
not become aware of the relationship between his employment, his occupational
disease, and his disability until April 30, 1989, when he retired, he should
reinstate his prior average weekly wage determination consistent with claimant's
arguments on cross-appeal.  If, however, he determines on remand that claimant's
date of awareness occurred at any other previous time, claimant's average weekly
wage should be calculated as of that date. 

     Accordingly, the administrative law judge's finding in his Decision and Order
Awarding Benefits that reconsideration of the responsible carrier issue is barred
by res judicata is reversed.  His finding that Liberty Mutual is liable as
the responsible carrier and his findings regarding the applicable average weekly
wage are vacated, and the case is remanded for further consideration of these
issues consistent with this opinion.  In all other respects, the administrative law
judge's Decision and Order awarding benefits is affirmed. 
       
     SO ORDERED.
     
                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                        
 
                         NANCY D. DOLDER 
                         Administrative Appeals Judge


                                                                        

                         REGINA McGRANERY
                         Administrative Appeals Judge





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Footnotes.


1)Claimant was hospitalized from February 5, 1982 to March 9, 1982, from February 21, 1983 through February 29, 1983, and from February 6, 1984 through March 8, 1984. Back to Text
2)Liberty Mutual provided insurance coverage between March 1, 1981 and August 31, 1986. Back to Text
3)Commercial Union Insurance Company, the carrier providing coverage for employer prior to Liberty Mutual, submitted a letter in which it indicated that inasmuch as no one was contending that it should be held liable as the responsible carrier, it was not filing a formal brief. Back to Text
4)In Spear v. General Dynamics Corp, 25 BRBS 254 (1991), the Board held that where claimant received a 1980 audiogram and accompanying report and filed a claim but continued working in covered employment where he was exposed to injurious noise resulting in an aggravation of his hearing loss reflected on a 1986 audiogram, the carrier on the risk at the time of the 1986 audiogram was liable notwithstanding that claimant may have been aware of his hearing loss based on receipt of the earlier audiogram. In this case, the claim for the hearing loss on the 1980 audiogram had not been adjudicated and merged with the later claim for the hearing loss evidenced on the 1986 audiogram. Although in Spear, claimant did sustain a distinct aggravation of his occupational hearing loss through continued employment resulting in a new injury, this fact was not determinative of the responsible carrier question. Spear indicates that in an occupational hearing loss case, the responsible carrier is the last carrier on the risk to expose claimant to injurious stimuli prior to his awareness of the full extent of his occupational injury. Back to Text
5)The United States Court of Appeals for the First Circuit noted that predicating carrier liability on disability rather than on awareness of a potentially disabling occupational disease was warranted because of deficiencies in medical knowledge regarding the predication as to the course of progress of an occupational disease. See Liberty Mutual Insurance Co. v. Commercial Union Co., 978 F.2d 750, 753, 26 BRBS 90-91 (CRT) (1st Cir. 1992). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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