METRO MACHINE CORPORATION, d/b/a General Dynamics NASSCO-Norfolk; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED, Petitioners,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; DELORES STEPHENSON, Respondents.
Argued: December 8, 2016
Petition for Review of an Order of the Benefits Review Board.
denied by published opinion. Judge Traxler wrote the opinion,
in which Judge Floyd and Judge Thacker joined.
Nash Bilisoly, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for
Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk,
Virginia; Matthew W. Boyle, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents.
Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Mark Reinhalter, Counsel for Longshore,
Sean G. Bajkowski, Counsel for Appellate Litigation, Office
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent United States Department of
TRAXLER, FLOYD, and THACKER, Circuit Judges.
TRAXLER, Circuit Judge:
Machine Corporation and Signal Mutual Indemnity Association,
Limited, petition for review of an order of the Benefits
Review Board affirming decisions of an ALJ granting a claim
for medical benefits under the Longshore and Harbor
Workers' Compensation Act ("the Act"),
see 33 U.S.C. § 907. Finding no reversible
error, we deny the petition.
setting out the facts underlying this appeal, we will begin
with a brief discussion of some of the relevant legal
"creates a comprehensive federal scheme to compensate
workers injured or killed while employed upon the navigable
waters of the United States." Estate of Cowart
v. Nicklos Drilling Co., 505 U.S. 469, 470-71
(1992). The Act requires employers to furnish medical care to
employees who suffer an "injury" within the meaning
of the Act. 33 U.S.C. § 907. As is relevant here,
"injury" is defined as an
accidental injury or death arising out of and in the course
of employment, and such occupational disease or infection as
arises naturally out of such employment or as naturally or
unavoidably results from such accidental injury.
33 U.S.C. § 902(2). "Arising 'out of'
and 'in the course of' employment are
separate elements: the former refers to injury causation; the
latter refers to the time, place, and circumstances of the
injury." U.S. Indus./Fed. Sheet Metal, Inc. v.
Director, OWCP, 455 U.S. 608, 615 (1982) ("U.S.
Industries"). "Through what has come to be
known as the aggravation rule, the courts have extended
[§ 902(2)'s)] definition such that, if an employment
injury aggravates, accelerates, or combines with a previous
infirmity, the entire disability is compensable."
Newport News Shipbuilding & Dry Dock Co. v.
Fishel, 694 F.2d 327, 329 (4th Cir. 1982).
Congress recognized that the elements of § 902(2)
"would be difficult to prove, " Director, OWCP
v. Greenwich Collieries, 512 U.S. 267, 280 (1994),
Congress provided the § 20(a) presumption, the proper
interpretation of which is a central issue in this appeal.
The statute describing the presumption provides, "In any
proceeding for the enforcement of a claim for compensation
under this Act it shall be presumed, in the absence of
substantial evidence to the contrary . . . [t]hat the claim
comes within the provisions of this Act." 33 U.S.C.
parties agree that to invoke the presumption, an employee
must allege a prima facie case that "(1) an injury or
death (2) . . . arose out of and in the course of (3) his
maritime employment." Universal Maritime Corp. v.
Moore, 126 F.3d 256, 262 (4th Cir. 1997). To establish
this prima facie case, a claimant must show "(1) that he
suffered physical harm and (2) that a workplace accident or
workplace conditions could have caused, aggravated,
or accelerated the harm." Bath Iron Works Corp. v.
Fields, 599 F.3d 47, 53 (1st Cir. 2010) (emphasis
added). Once the prima facie case is established, the burden
of production shifts to the employer, who must produce
evidence that could justify a reasonable factfinder in
concluding that the claimant either did not suffer physical
harm or that no workplace accident or workplace conditions
caused, aggravated, or accelerated the harm. See
id.; accord Moore, 126 F.3d at 262-63. If the
employer satisfies this burden, the presumption falls out of
the case, and the factfinder is left to find the necessary
facts without considering the presumption. See
Moore, 126 F.3d at 262-63.
turn to the facts before us. John Stephenson
("Claimant") worked for Metro Machine Corporation
as a pipefitter in Virginia from August 1983 until August
2011. He has a long history of breathing problems. He
suffered from asthma until he was approximately eight years
old, and he began smoking when he was 16. He has received
treatment for bronchitis caused by his smoking since the
early 1980s. And he received treatment for a productive cough
and wheezing in 1985 and 1986. Additionally, he regularly
suffered from bronchitis during winters, and his bronchitis
was treated with antibiotics. He has been taking steroids for
his wheezing and coughing since 1986. He was diagnosed with
chronic obstructive pulmonary disease ("COPD") in 1996 and emphysema
February 18, 2008, Claimant was working in the superstructure
of a vessel. During his workday, which lasted more than eight
hours, he inhaled fumes from welding and burning and the
application of epoxy paint ("the exposure");
inhaling these fumes caused him breathing problems. After
Claimant finished his shift and went home, the problems
continued all night, prompting him to go to the emergency
room the next morning. At the hospital, he was diagnosed with
"[e]xacerbation of chronic obstructive pulmonary
disease." S.J.A. 1. He was admitted and remained
hospitalized for eight days, during which time he was
prescribed steroids, inhalers, empiric antibiotics, and
albuterol to treat his COPD. Upon discharge, he was
prescribed a nebulizer and oxygen concentrator, which he had
not used prior to the hospitalization.
paid Claimant compensation for temporary total disability
from February 19, 2008, through August 3, 2008, and later for
temporary partial disability from September 16, 2009, through
September 29, 2009. When he returned to work, he was
restricted from going aboard the ship and limited in the
amount of weight he could lift.
voluntarily retired in 2011. Since his retirement, he has
begun using his oxygen concentrator more frequently. He has
continued taking the same medications he took when he was
hospitalized, but he has increased his dosages. He reports
that his coughing has improved over time although his
shortness of breath has worsened.
October 2011, Claimant was treated for a fracture at the T7
vertebra by Dr. Alireza Jamali. Dr. Jamali stated in an
office note that the fracture was "most likely due to
excessive coughing." S.J.A. 8. In February 2012, Dr.
Jamali wrote that Claimant "required a long-term intake
of the steroid for management of his respiratory condition,
" which "contributed to osteoporosis and
pathological fracture of T7." S.J.A. 15. Dr. Jamali
opined that the fracture was "directly due to long-term
steroid intake" from the management of Claimant's
respiratory condition. S.J.A. 15.
that his injuries were the result of the exposure, Claimant
requested that Metro pay for his medical treatment. Metro
refused and filed a notice of controversion on March 15,
2012, asserting that the treatment he had requested was not
related to the exposure. On March 30, 2012, Claimant filed a
claim for compensation, Form LS-203, under the Act. In the
spaces on the form calling for the date of the injury and a
description of the accident, he answered
"2/18/2008" and "exposure to fumes, " and
in the space calling for identification of the part of body
affected, he answered, "Lungs." J.A. 11.
15, 2012, a claims examiner held an informal conference.
Memoranda memorializing the conference indicate that Claimant
had sought medical benefits for both his ongoing COPD and his
fractured vertebra. The ...