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Metro Machine Corp. v. Director

United States Court of Appeals, Fourth Circuit

January 20, 2017


          Argued: December 8, 2016

         On Petition for Review of an Order of the Benefits Review Board. (2014-0425)

         Petition denied by published opinion. Judge Traxler wrote the opinion, in which Judge Floyd and Judge Thacker joined.


          Frank Nash Bilisoly, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Petitioners.

          Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia; Matthew W. Boyle, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

         ON BRIEF:

          M. 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 Labor.

          Before TRAXLER, FLOYD, and THACKER, Circuit Judges.

          TRAXLER, Circuit Judge:

         Metro 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.


         Before setting out the facts underlying this appeal, we will begin with a brief discussion of some of the relevant legal concepts.

         The Act "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).

         Because 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. § 920(a).

         The 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.


         We now 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[1] ("COPD") in 1996 and emphysema in 2001.

         On 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.

         Metro 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.

         Claimant 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.

         In 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.

         Asserting 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.

         On May 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 ...

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