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                                     BRB Nos. 00-1088
                                      and 00-1088A

JOHN A. WILLIAMS                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
SELBY BATTERSBY COMPANY                 )
                                        )
     and                                )
                                        )
THE HARTFORD INSURANCE                  )    DATE ISSUED:   07/27/2001
                                             
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )
                                        )
     and                                )
                                        )
EMPLOYERS MUTUAL LIABILITY              )
INSURANCE COMPANY OF                    )
WISCONSIN (WAUSAU)                      )
                                        )
FEDERAL INSURANCE COMPANY               )
                                        )
HOME INSURANCE COMPANY                  )
                                        )
COMMERCE AND INDUSTRY                   )
INSURANCE COMPANY                       )
                                        )
          Carriers-Respondents          )
          Cross-Respondents             )    DECISION and ORDER

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

     Gary R. West (Patten, Wornom, Hatten & Diamonstein, L.C.), Newport News,
     Virginia, for claimant.

     Gerard E. W. Voyer, Donna White Kearney, and Christopher J. Wiemken
     (Taylor & Walker, P.C.), Norfolk, Virginia, for The Hartford Insurance
     Company.
     
     Matthew H. Kraft (Inman & Strickler, P.L.C.), Virginia Beach, Virginia,
     for Employers Mutual Liability Company of Wisconsin (Wausau).

     David R. Kunz and Caroline Rieker (David Robertson Kunz & Associates),
     Philadelphia, Pennsylvania, for Federal Insurance Company.

     Steven H. Theisen (Midkiff, Muncie & Ross, P.C.), Richmond, Virginia,
     for Home Insurance Company. 

     R. John Barrett, F. Nash Bilisoly, and Kelly O. Stokes (Vandeventer
     Black LLP), Norfolk, Virginia, for Commerce and Industries Insurance
     Company.       

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

     PER CURIAM:

     Claimant appeals, and Hartford Insurance Company (Hartford) cross-appeals, the
Decision and Order (99-LHC-1154) 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 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 worked for the Selby Battersby Company (Selby Battersby) from 1946
until he retired in 1981.  Claimant's Social Security records show that during this
time he intermittently worked for other employers as well.  C/I Ex. at 1.  His job
at Selby Battersby involved "mixing" the composition for the floors of carriers,
submarines and tankers on board the ships at shipyards.  Tr. at 36-37.  He worked
at several different shipyards including those in  Newport News, Baltimore, and
Pascagoula.  Tr. at 37.  He testified that he worked around pipe coverers on board
ships and that he saw dust being generated by their work. Tr. at 38, 40.  Claimant
stated that he believed that the "scratch" that he used for his mixing contained
asbestos, but agreed that the bags in which the substance came made no reference 
to asbestos.  Tr. at 49.  Claimant also was occasionally involved with removing old
flooring, which he described as asbestos-like tile.  The parties stipulated to the
following periods of insurance coverage: Wausau Insurance Company (through
Employers Mutual Liability Insurance Company of Wisconsin)(Wausau) from April 1,
1968, through April 1, 1973; Hartford, from April 30, 1977, through April 30, 1982;
and Commerce and Industry Insurance Company, from April 30, 1982, through March 1,
1986.  Claimant filed a claim under the Act for medical benefits to cover the cost
of periodic monitoring for his asymptomatic asbestosis.

     In his decision, the administrative law judge found, based on the parties'
stipulation, that claimant has asbestosis, and thus that he established an
"injury."   The administrative law judge found, however, that claimant did not
establish that he was exposed to asbestos while working for Selby Battersby.  
Accordingly, the administrative law judge found that claimant did not establish that his asbestosis is work-related.   The
administrative law judge found, assuming that had claimant established that his
condition was causally related to asbestos exposure at Selby Battersby, he
nonetheless would not be entitled to future medical benefits.  The administrative
law judge also determined that  had claimant carried his burden on the issue of the
work-relatedness of his condition, Hartford would be the responsible carrier.   

     On appeal, claimant challenges the administrative law judge's finding that he
did not establish that his asbestosis is employment-related and that he is not
entitled to future medical expenses.   Hartford responds, urging that the
administrative law judge's finding that claimant did not establish exposure to
asbestos and that he is not entitled to future medical costs, be affirmed.  On
cross-appeal, Hartford challenges the administrative law judge's finding that,
assuming claimant established exposure to asbestos and therefore that his
asbestosis is causally related to his work at Selby Battersby, Hartford is the
responsible carrier.   Wausau, Federal Insurance Company, Commerce and Industry 
Insurance Company and Home Insurance Company respond to both appeals, urging that
the administrative law judge's decision be affirmed in all respects.

     Claimant argues that the administrative law judge erred in not finding that
he was exposed to asbestos, i.e., did not establish the "working conditions"
prong of his prima facie case, despite claimant's testimony of exposure in
many instances, evidence presented by one of employer's carriers that establishes
the use of asbestos-containing products for a significant portion of claimant's
employment, and the absence of evidence from employer disputing asbestos use.   In
order for a claimant to be entitled to medical expenses, the injury must be work-related. Romeike v. Kaiser Shipyards,
22 BRBS 57 (1989).  Claimant bears the burden of proving the existence of an injury or harm and that a work-related
accident occurred or that working conditions existed which could have caused the harm in order to establish his prima
facie case. See Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1998); Bolden v.
G.A.T.X. Terminals Corp., 30 BRBS 71 (1996).  It is claimant's burden to establish each element of his prima
facie case by affirmative proof. See Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989); see also
Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT)(1994).  If the elements of claimant's
prima facie case are established, the Section 20(a) presumption applies to link claimant's harm to his
employment.  33 U.S.C. §920(a); see Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS
119(CRT) (4th Cir. 1997).

     We affirm the administrative law judge's finding that claimant did not
establish his prima facie case.  In finding that claimant failed to prove
his case, the administrative law judge reasoned that the composition of the
"scratch" claimant used is unknown; that Mr. Beierschmitt, retired superintendent
for Selby Battersby, testified that company used something called Selbalith, which
contained asbestos, but there is no evidence connecting Selbalith with "scratch;"
that there is no evidence regarding the materials contained in the pipe insulation
near which claimant allegedly worked; and that even though claimant testified that
the insulation he saw had glass flakes, the record does not verify that these
flakes were asbestos, fiberglass, or something else.  CX 3 at 36, 71-72. The
administrative law judge concluded that while claimant testified that the "scratch"
he used generated dust which he now believes to have been asbestos,  Tr. at 49,
that speculation based on second-hand statements of co-workers does not constitute
probative, material and competent evidence to establish that the substance was, in
fact, asbestos.  The administrative law judge also found that claimant was not a
credible witness and that his recollection was hazy at best, not because of an
intent to deceive, but because of advanced age or for other reasons. Decision and
Order at 11-12.  The administrative law judge found claimant's testimony at the
hearing to be confusing and contradictory.   The administrative law judge concluded
that in light of the lack of credibility of claimant's testimony and the total
absence of testimony of any co-worker or other person who could verify asbestos
exposure through first-hand knowledge of the venues where claimant worked, claimant
failed to sustain his burden of demonstrating exposure to asbestos while working
for Selby Battersby. Thus, he concluded that claimant did not establish working
conditions which may have exposed him to asbestos.[1]   Decision and Order at 5.
     The administrative law judge's credibility determinations are not to be
disturbed unless they are inherently incredible or patently unreasonable. See
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911
(1979); see also Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 24 BRBS
46(CRT) (5th  Cir. 1990).  In the instant case, the administrative law judge fully
considered claimant's testimony regarding his alleged exposure to asbestos, as well
as the absence of corroborating evidence, and concluded that claimant was  not
exposed to asbestos while working for Selby Battersby.  On the basis of the record
before us, the administrative law judge's decision to reject the testimony of
claimant is neither inherently incredible nor patently unreasonable.  Moreover, the
administrative law judge rationally determined that the evidence of employer's use
of a substance containing asbestos does not establish that claimant actually was
exposed to that product. See generally Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th
Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th  Cir.
1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2nd Cir. 1961).  Accordingly, as it is
rational and supported by substantial evidence, we affirm the administrative law
judge's determination that claimant failed to establish the existence of work-related conditions during his tenure with Selby Battersby which could have caused
his asbestosis.   As claimant failed to establish an essential element of his
prima facie case, we affirm the denial of the claim for medical
benefits.[2]  See U. S. Industries/Federal Sheet
Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982).

     In light of our affirmance of the administrative law judge's finding that
claimant did not establish his prima facie case, we need not address
Hartford's contentions, on cross-appeal, regarding the responsible carrier issue.

     Accordingly, the administrative law judge's Decision and Order is affirmed. 

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)Claimant argues that the administrative law judge's comment that "many things generate dust and most of them do not contain asbestos," Decision and Order at 11, is evidence of an assumption of facts, not in this record, and evidence of a total ignorance of U.S. Naval shipbuilding construction sites between 1946 and 1981. Cl. Br. at 12. Claimant also contends that by requiring him to show what kind of insulation employer used on pipes, the administrative law judge is placing an unfair burden on him. Claimant, however, is asking the administrative law judge to make assumptions about shipbuilding, in the absence of record evidence, and the burden of proof is on claimant to establish his prima facie case. See U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996). Back to Text
2)The administrative law judge, relying on Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997), determined that even had claimant established the work-relatedness of his asbestosis, claimant was not legally entitled to recover medical monitoring costs under the Longshore Act. In Metro North, 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. 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. As the case at bar arises under the Longshore Act, rather than under FELA, there are significant distinctions which the administrative law judge did not address. This case does not involve issues of negligence or recovery in tort for alleged emotional distress. The Longshore Act provides for possible entitlement by a claimant to reimbursement for the cost of future medical monitoring for a work-related harm in the absence of disability if claimant sets forth an evidentiary basis to support a finding that such monitoring is reasonable and necessary. See 33 U.S.C. §907; 20 C.F.R. §702.402; Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993); Crawford v. Director, OWCP, 932 F.2d 152, 24 BRBS 123(CRT) (2d Cir. 1991); Romeike, 22 BRBS at 57. Thus, the administrative law judge erred in relying on Metro North as a basis for denying medical monitoring. The error, however, is harmless, as the administrative law judge also found that claimant would not be entitled to medical monitoring "[c]onsidering this case from the point of view of the necessity of the proposed medical monitoring." Decision and Order at 13. The administrative law judge found that Dr. Donlan did not state why he thinks that an annual x-ray is necessary or important, and did not cite any medical literature on the subject, and that therefore, despite being claimant's treating physician, his opinion is unexplained and unreasoned. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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