06-2465-ag

Electric Boat v. Director UNIT ED S TAT ES COU RT OF A PP EALS 1 F OR THE S ECOND C IRCU IT 2

_______________ 3 August Term, 2006 4 5 (Argued: July 11, 2007 Decided: August 1, 2007) 6 7 Docket No. 06-2465-ag 8

_______________ 9 10 E LECTRIC B OAT C ORPORATI ON , 11 Petitioner , 12

—v.— 13 R HETA D E M ARTINO (W IDOW OF L OUIS J. D E M ARTINO ) 14 15 AND 16 17 D IRE CTOR , O FFICE OF W ORKERS ’ C OMPENSATI ON P ROGRA MS , 18 U NITED S TAT ES D EPART MENT OF L ABOR , 19 Responde nts . 20

_______________ 21 B e f o r e : 22 S TRAUB , B.D. P ARKER , AND W ESLEY , Circuit Ju dges. 23

_______________ 24 Petition for review of a decision of the Benef its Review Board affirming an orde r of the 25 administrative law judge (“AL J”) denying pe

titioner relief from its worker’s compensation 26 liability

under se ction 8(f

) of the L ongshor e and Ha rbor Work

ers’ Comp ensation

Act, 33 U. S.C. 27 § 908(f). Because we find that substantial evide nce supports the ALJ’s conclusion, we deny the 28 petition f

or revie w. We write

to express ly a

ffirm the proposition that section 8(f)relief i s 29 available to an employer in a situation where an employ ee’s pre-existing disability a nd second 302

injury both arise out of the same course of employ

ment with the same employer
. 1 DENIED. 2

_________________________________ 3 P ETER D. Q UAY , Law Office of Peter D. Quay , Taftville, CT, for Petitioner
. 4 5 K

ATHLEEN H. K IM , U.S. Depa rtment of Labor, Offic e of the So licitor (Howard M
. 6 Radzely, Solicitor of L abor, Allen H. Feldman, Associate Solicitor, Mark A. 7 Reinhalter, Counsel for Longshor e, on the brief

), Washington, D.C., for Respon dents
. 8 9

_________________________________ 10 P ER CUR IAM : 11 Electric

Boat Cor poration petitions f

or revie w of a Ma

rch 27, 2 006 orde

r of the B enefits 12 Review Board (“Board”) affirming the decision of Administrative L aw Judge Colleen A. 13 Geraghty

(“ALJ”) deny

ing Electric Boat relief fr om its worker’s compensation liability under 14 section 8(f) of the Long shore and Harbor Workers’ Compensation Act (the “Ac t”), 33 U.S.C. § 15 908(f). We hold that substantial evidence supports the ALJ’s conclusion that the evide nce of 16 Louis DeMartino’s exposure to asbestos after 1970 is insuffic ient to establish a second injury for 17 the purposes of section 8(f) relief. We write to explicitly affirm the proposition that section 8(f) 18 relief is available to an employ er where an employ

ee’s pre-existing disability a nd second injury 19 both arise out of the same course of employ ment with the same employer
. 20 Decede

nt DeMar tino was e

mploy ed by Electric Boat fr om 1957 unti l his retir

ement in 21 1994. DeM artino was exposed to asbestos while wor

king as a n outside machinist f

rom 1957 to 22 1959. In addition, DeMartino suffere d additional exposure from 1961 to 1965 while working in a 23 building adjacent to an area wher e laggers were

handling asbestos material. DeMartino testified 24 that he could have been exposed to asbestos materials stored in warehouse s during the period 253

1974 to 1977. He also testified that he spent between five to 10 perce nt of his time onboard ships 1 from 1961 to 1990, where asbestos may have been installed. 2 DeMartino was first informed that he had an abnormal c hest x-ray with a pattern 3 sugge stive of a sbestosis i n 1970. DeMartino p assed away on Febr uary 3, 1996; the

cause of death 4 was spec ified as b ilatera l pneumoni a due to or

as a cons equenc e of end- stage a sbestosis. 5 The ALJ denied Electric Boa t’s request for section 8(f) relief on cla ims filed by 6 DeMartino and his widow under the Long shore and Harbor Workers’ Compensation Act, 33 7 U.S.C. § 901 et seq . The ALJ rejected Electric Boat’s argument that DeMartino’s c ontinued 8 exposure to asbestos after 1970 aggra vated his preexisting asbestosis and thus constituted a 9 second in

jury for purp oses of se ction 8(f ) relief . The AL J found that

the rec ord was u

nclear as to 10 the extent of DeMartino’s exposure to asbestos materials stored in warehouses during the period 11 1974 to 1977. In addition, the AL J concluded that it was uncertain whether DeMartino was 12 exposed to asbestos during his tours on ships in the period 1970 to 1979, and that Electric Boat 13 ceased using asbestos in ship construction by at least 1979, and possibly befor e. The Board 14 affirmed the ALJ’s decision deny ing section 8(f) relief on March 27, 2006. Ele ctric Boat 15 petitions for review of the Board’s decision, urg ing that the ALJ’s conclusions are not supported 16 by substantial evidence
. 17 We write explicitly to establish that an employ er is eligible for section 8(f) relief where 18 an employee ’s pre-existing disability and sec ond injury both arise from the sa me course of 19 employment with the same employ er. While we have presumed the availability of section 8(f) 20 relief in such a situation, see Blanc hette v. OWCP, 998 F.2d 109, 113 (2d Cir. 1993), we have y et 21 to expressly affirm an e mployer’s elig

ibility for relief in this context. 224

Prior to the enactment of section 8(f), when an employ ee was injured at work, an 1 employ

er was r equired to compen sate the

employ ee for t he full extent of his d

isability , rega rdless 2 of whether a pre-existing disability contributed to his condition. This rule discouraged employ ers 3 from hiring partially disabled workers. See Director, OWCP v. Ge neral Dynamics Corp. , 705 4 F.2d 562, 564 (1st Cir. 1983). Congress enacted section 8(f) “ in order to limit the burden on 5 employers in so-ca lled second-injury c ases.” H.R. Rep. No. 92-1441 (1972), as reprinted in 1972 6 U.S.C.C.A.N. 4698, 4705. Under section 8(f), when an employ ee who has an “existing 7 pe rm an en t p ar ti al di sa bi li ty” su ff er s a n o n- th e-

jo b i nj ur y th at re su lt s i n p er ma ne nt to ta l d is ab il it y, 8 the employer is liable only for a portion of the compensation pay ments. The remainder is paid out 9 of a “special fund” create d from payments by employers. See33 U.S.C. §§ 908(f), 94 4. By 10 limiting a

n employ er’s lia bility in such ca ses, section 8(f)provides an incen tive for e mploy ers to 11 hire wor

kers with preexistin

g disabi lities, as

well as to

retain workers w

ho become

partiall y 12 disabled on the job. See Lawson v. Suwannee Fruit &Steamship Co. , 336 U.S. 198, 202 (1949); 13 General Dynamics Corp. , 705 F.2d at 565. 14 Permitting employers to obtain sec tion 8(f) relief when an employee suffers two work15 related injuries in the same course of employ ment furthers the purpose of the statute by 16 encouraging employ ers to retain partially-disabled employee s. However, it raises the concern that 17 unscrupu

lous employe

rs may deliber ately cause their work

ers to suf fer a se cond injur

y to limit 18 their liability. I

n addressing this issue, the D.C. Circuit concluded that it would frustrate the 19 intent of C ongre ss to eliminate discrimination again st handic apped workers if the cour t were to 20 deny section 8(f

) relief in such a situation solely “because of the possibility that a few 21 Machiavellian employe rs would deliberately

re-injure the handicapped.” Director, OWCP v. 225

Potomac Electric Power Co. , 607 F.2d 1378, 1385 (D.C. Cir. 1979) (per curiam). We similarl y 1 conclude that the possibility of abuse should not def eat an employe

r’s claim to section 8(f) relief 2 absent some evidence sugge sting that the employer engaged in such a pra

ctice. We find no 3 evidenc e on the r

ecord that Elect

ric Boa t intentionally

aggr avated D eMartino ’s asbestosis to 4 obtain se ction 8(f

) relief . Accor dingly , Electr ic Boat i s eligib le for se ction 8(f ) relief in this 5 circumstance. 6 Turning to the merits of Electric Boat’s re quest for section 8(f) relief, substantial 7 evidence supports the ALJ’s conclusion that Electric Boat failed to show that DeMartino suffered 8 a second injury. See Jac ksonville Shipyards

, Inc. v. Director

, OWC P , 851 F.2d 1314, 1316-17 9 (11th

Cir. 1988). The ALJ properly reasoned that the record is lacking in de tail regarding the 10
ex ten t o f De Mar ti no’ s ex pos ure to asb est os d uri ng h is vi si ts to war eho use s. In add it io n, t he A LJ 11 correctly

concluded that the record does not revea l precisely whe

n Electric Boat stopped using 12 asbestos

materia l to constr uct ships. Further, even a ssuming t hat the sh ips conta ined some 13 asbestos after 1970, the record is unclear as to DeMartino’s exposure and the extent to which 14 such exposure might have aggr avated his progressive illness. Therefore , DeMartino’s testimony 15 that he sp ent five to 10 perc ent of his

time onboa

rd ships f rom 1961 to

1990 is inc onclusive

with 16 regard to post-1970 asbestos exposure. 17 Accordingly , we DENY Electric Boat’s petition for re view of the Board’s decision. 18