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                                 BRB No. 97-1316

ELLEN J. DAY                            )
(Widow of DONALD DAY)                   )
          Claimant-Petitioner           )
     v.                                 )
BATH IRON WORKS CORPORATION             )    DATE ISSUED:   06/17/1998
          Self-Insured                  )
          Employer-Respondent           )
     and                                )
COMPANY                                 )
          Carrier-Respondent            )    DECISION and ORDER
     Appeal of the Decision and Order of Jeffrey Tureck, Administrative Law
     Judge, United States Department of Labor.

     Ronald W. Lupton (Stinson, Lupton, Weiss & Gabree P.A.), Bath, Maine,
     for claimant.

     Kevin M. Gillis (Troubh, Heisler & Piampiano), Portland, Maine, for
     Commercial Union Insurance Company.

     Stephen Hessert (Norman, Hanson & DeTroy), Portland, Maine, for self-insured employer.      

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


     Claimant appeals the Decision and Order (96-LHC-357) of Administrative Law
Judge Jeffrey Tureck 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).

     The decedent, a spray painter and machinist for employer, filed a disability
claim on March 23, 1994, for pulmonary problems allegedly due to work-related
asbestosis.  He died on October 4, 1994, from lung disease.  Subsequently, his
widow filed a claim for death benefits on October 15, 1994.  In his Decision and
Order, the administrative law judge found that Dr. Craighead's opinion is
sufficient to establish rebuttal of the presumption at Section 20(a) of the Act,
33 U.S.C. §920(a).  After crediting Dr. Craighead's opinion over the contrary
opinions of Drs. Bates and Pusch, the administrative law judge found that there was
no causal relationship between the decedent's work-related asbestos exposure and
the disability and death.  Consequently, he denied disability and death benefits. 
On appeal, claimant challenges the administrative law judge's denial of disability
and death benefits.  Both self-insured employer and carrier filed response briefs,
urging affirmance.

     Section 20(a) of the Act presumes, in the absence of substantial evidence to
the contrary, that claims for disability and death benefits come within the
provisions of the Act, i.e., that the disability and death were work-related. See Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS 11 (CRT)(1st
Cir. 1982).  Once the Section 20(a) presumption is invoked, the burden shifts to
employer to rebut the presumption with substantial evidence that the decedent's
disability and death were not caused, aggravated, or accelerated by his employment.
See Peterson v. General Dynamics Corp., 25 BRBS 71 (1991)(en
banc), aff'd sub nom. Ins. Co. of North America v. U.S. Dept. of Labor,
969 F.2d 1400, 26 BRBS 14 (CRT)(2d Cir. 1992), cert. denied, 113 S.Ct. 1253
(1993).  If employer presents specific and comprehensive evidence sufficient to
sever the connection between the disability and death and the employment, the
presumption no longer controls and the issue of causation must be resolved on the
whole body of proof. See Universal Maritime Corp. v. Moore, 126 F.3d 256,
31 BRBS 119 (CRT)(4th Cir. 1997).  The Board has held that if a work-related
condition hastens death, the death is work-related.  Fineman v. Newport News
Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993); Woodside v. Bethlehem Steel
Corp., 14 BRBS 601 (1982)(Ramsey, C.J. dissenting).  

     After consideration of claimant's arguments on appeal and the administrative
law judge's decision in light of the record evidence, we affirm the administrative
law judge's denial of disability and death benefits.  The administrative law judge
found that the decedent had work-related asbestosis.  The administrative law judge
properly found, however, that Dr. Craighead's opinion, that the decedent's
disability was in no way related to asbestosis, and that the decedent's death was
not caused, contributed to, aggravated, accelerated or hastened by occupational
asbestosis, is sufficient to establish rebuttal of the Section 20(a) presumption
as it is in accordance with law. See Fineman, 27 BRBS at 104; Phillips
v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 94 (1988);
Woodside, 14 BRBS at 601; Decision and Order at 4; Emp. Ex. 20 at 14-15. 
Contrary to claimant's contention, the administrative law judge was not required
to discredit the opinion of Dr. Craighead on the basis that he is employer's
expert.  Furthermore, claimant's remaining challenges to Dr. Craighead's opinion
lack merit as the fact that objective medical evidence established that the
decedent had asbestosis is irrelevant to the causation issue and as Dr. Craighead
diagnosed asbestosis but did not find that it was related to the decedent's
disability and death.  

     After properly finding that Dr. Craighead's opinion was sufficient to
establish rebuttal, the administrative law judge acted within his discretion in
crediting Dr. Craighead's opinion over the contrary opinions of Drs. Bates and
Pusch based on Dr. Craighead's expertise.[1]  
See Sprague, 688 F.2d at 862, 15 BRBS at 11 (CRT); Phillips, 22 BRBS
at 94; Decision and Order at 4-7.    While Drs. Bates and Pusch believed that the
cause of death was due to asbestosis and acute alveolar damage, Dr. Craighead
testified that the cause of death was due to bronchiolitis obliterans and
organizing pneumonia, and not caused, contributed to, aggravated, accelerated, or
hastened by occupational asbestos exposure.  Cl. Exs. 33 at 11, 16, 36 at 14; Emp.
Ex. 20 at 14-15.  Moreover, while claimant asserted that the decedent had been
disabled since April 1989, the administrative law judge noted that the decedent did
not complain of respiratory problems to Dr. Kline until late 1993 and was able to
work until 1994.  Decision and Order at 7; Cl. Ex. 34 at 13-15.  Hence, the
administrative law judge rationally found that the decedent was not disabled by his
asbestosis during this time period, and concluded that decedent's pulmonary
problems between late 1993 and 1994 could not be related to asbestosis, based on
his rapidly declining health as both Drs. Craighead and Bates characterized
asbestosis as a slowly progressing disease and as Dr. Craighead opined that the
decedent's disability was in no way related to asbestos exposure.[2]   See generally Bath Iron Works Corp. v.
Director, OWCP [Harford], 137 F.3d 673 (1st Cir. 1998); Decision and Order at
7; Cl. Ex. 33 at 17; Emp. Ex. 20 at 14.  Moreover, the administrative law judge was
not required to credit the opinions of Drs. Bates and Pusch as treating physicians
with controlling weight. Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th
Cir. 1962); Phillips, 22 BRBS at 94.  Any error in the administrative law
judge's failure to consider the lay testimony of claimant and Mr. Lahr, the
decedent's former employee, is harmless as the testimony does not establish that
the decedent's disability was work-related.  Cl. Ex. 35 at 6-8; Tr. at 23, 26.   

     Accordingly, the administrative law judge's Decision and Order denying
disability and death benefits is affirmed.       


                         ROY P. SMITH   
                         Administrative Appeals Judge


                         JAMES F. BROWN
                         Administrative Appeals Judge



                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)The administrative law judge noted that Dr. Craighead is an expert in the field of pathology and has unique experience and knowledge concerning asbestosis as he chaired the Pneumoconiosis Committee of the College of American Pathologists and National Institute of Occupational Safety and Health which drafted, "The Pathology of Asbestos Associated Disease of the Lungs and Pleural Cavities: Diagnostic Criteria and Grading Schemes." In addition, Dr. Craighead has published numerous other articles, book chapters, abstracts, and has edited books relevant to the disease of asbestosis. Back to Text
2)Contrary to claimant's contention, Dr. Craighead was aware of all of the findings by Drs. Bates and Pusch after reviewing their depositions. CU-1. Hence, the instant case is distinguishable from the case of Lennon v. Waterfront Transport, 20 F.3d 658, 28 BRBS 22 (CRT)(5th Cir. 1994), where the administrative law judge unreasonably relied upon an opinion of a single physician, who was unaware of all of the medical evidence of record. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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