S. v. Lyons Associates

Summary: Lifetime death benefits recovered for widow of spouse exposed to Agent Orange in Vietnam more than 40 years before disease manifests.

In the Matter of:

MS, Widow of CS (Deceased),

Claimant,

v.

LYON ASSOCIATES, INC., Employer, and INSURANCE COMPANY of the STATE OF PENNSYLVANIA,

Carrier.

Case No: 2011-LDA-00520 OWCP No: 15-049822

Appearances: Matthew Witteman, Esq. Law Offices of Matthew Witteman For Claimant

James M. Ralph, Esq. Laughlin, Falbo, Levy & Moresi For Respondents

Before: Russell D. Pulver

Administrative Law Judge

DECISION AND ORDER GRANTING BENEFITS

This case arises from a claim for compensation brought under the Defense Base Act, 42 U.S.C. § 1651, as an extension of the Longshore and Harbor Worker’s Compensation Act, as amended, 33 U.S.C. § 901 (“the Act”). The Act provides compensation to certain employees engaged in U.S. Department of Defense related employment for occupational diseases or unintentional work-related injuries, irrespective of fault, resulting in disability or death. Claimant, as the surviving spouse, brought this claim against employer, Lyon Associates (“Employer”) and Insurance Company of the State of Pennsylvania (collectively “Respondents”)

for death benefits and funeral expenses after the death of CS (“Decedent”) on July 3, 2005 due to cancer allegedly caused by exposure to Agent Orange during his employment with Employer in Vietnam.

The issues raised by the parties could not be resolved administratively and the matter was referred to the Office of Administrative Law Judges for hearing. On March 29, 2012, the undersigned convened the formal hearing in San Francisco, California. The parties had a full and fair opportunity to adduce testimony, offer documentary evidence and submit post-hearing briefs. The following exhibits were admitted into evidence: ALJ Exhibits (“AX”) 1-5, Claimant’s Exhibits (“CX”) A-M, and Respondents’ Exhibits (“RX”) 1-13. Hearing Transcript (“TR”) at 5-7, 15, 17-19, 89, 96. Dr. Arnold Schecter testified at the hearing on behalf of Claimant. Dr. Robert L. Owen testified on behalf of Respondents.

Based upon the evidence introduced and having considered the arguments presented, I make the following Findings of Fact, Conclusions of Law, and Decision and Order.

STIPULATIONS

The parties stipulate and I find:

1. Jurisdiction exists under the Act. TR at 7-8; AX 3; AX 4.

2. The Act applies to this claim. Id.

3. At the time of the alleged injury, an employer-employee relationship existed

between Decedent and Employer. Id.

4. The claim was timely noticed, timely filed and timely controverted. Id.

5. Claimant was married to Decedent at the time of his death and there are no other financial dependents. Respondents’ Post Trial Brief (“RPTB”) at 3.

ISSUES

1. Whether Decedent’s death arose out of and in the course of employment. TR at 8; AX 3; AX 4.

2. Amount of death benefit, if any.1 Id.

1 The parties discussed this issue in terms of “average weekly wage.” However, the issue is more appropriately termed the calculation of the death benefit payable to Claimant pursuant to Section 9 of the Act.

3. Whether Claimant is entitled to interest on benefits owed, attorney fees and costs. Id.

FINDINGS OF FACT

Decedent began his career as a civil engineer on projects in the United States beginning in June of 1951, and according to his resume worked on various projects, both domestic and international, until 1964. CX F at 3-4; RX 4 at 346-349. Decedent worked in Vietnam with Lyon Associates Inc. from February 13, 1964 to September 30, 1965 as an employee “on loan” from J.E. Greiner Company. RX 4 at 346; RX 8 at 490. Decedent then was hired by Lyon Associates, Inc. and was employed by them from February 3, 1966 to July 15, 1985 (records indicate that he left Vietnam in approximately 1974). RX 8. Decedent was employed as a civil engineer by Lyon Associates, Inc., and it appears that Decedent became the chief or head civil engineer of Lyon Associates, Inc. within a couple years of his joining the company. Id. at 490.

Lyon Associates, Inc. had contracts with the United States Department of Defense to design various infrastructure projects in Vietnam. Id. at 487-490. Lyon Associates, Inc. was a design firm and not a construction firm, and worked in corporate offices in Vietnam. Id. The design team, of which Decedent was a part, was stationed at the Saigon office. Id. Initially, the Saigon office was located near the airport in a structure that was formerly used as a house and, according to Mr. Lyon, was a completely enclosed building with air conditioning. Id. at 488. It appears that in the mid 1960s the Saigon office was relocated to a larger building in Saigon, which also had air conditioning. Id. As a civil engineer, Decedent would have mostly worked in the Saigon office where the design team was headquartered. CX M at 22-25. However, Decedent also made field visits to review sites. Id. Employees of Lyon Associates, Inc. were responsible for finding their own housing. RX 8 at 495. There is no evidence that any employees lived on military bases or performed work in areas where Agent Orange may have been stored. Id. at 491.

Decedent lived with a woman and two children in the local economy while in Vietnam. Id. at 496; CX E at 3. In a handwritten statement signed by Decedent on February 26, 2005, he detailed his work for almost nine years in Vietnam indicating that he traveled “extensively from the Delta to north of Hue.” CX F at 2. Decedent wrote that “Agent Orange was commonly used throughout many locations in which I traveled” and opined that his cancer was related to the Agent Orange exposure while in Vietnam. Id. In a resume prepared by Decedent and dated May 31, 1972, he noted that he “had planned and directed field surveys, alignment studies, roadway design and intersection geometry of 500 kilometers of national and interprovincial highway restoration and urban bypass studies.” Id. at 3. He also noted he had participated in “projects for airfields, ports, sewerage and water systems designs for the vast military buildup throughout Vietnam.” Id. While Decedent worked primarily at an office in Saigon, he did visit sites on which he was working in various parts of Vietnam. CX M at 9-10, 21. During his travels about Vietnam, Decedent would frequent local restaurants for meals. CX E at 3.

It appears that Decedent worked in Vietnam until 1974 when Decedent moved to Seoul, Korea. RX 8 at 492; RX 9 at 513-514. There are no records detailing which projects he worked

on there. In 1975, he became the Chief Highway Engineer for the Highway Bettermen Services in Indonesia. RX 9 at 514. It appears that he lived in Bandung, Indonesia until 1979, when he returned to Korea and worked on the Korea Port Phase III project. RX 4. It appears that Decedent may have briefly worked in Saudi Arabia in 1981, but otherwise continuously worked in Korea until July 15, 1985, when he resigned from Lyon Associates Inc. Id. Mr. Lyons testified that Decedent made $59,315.59 working for Lyons Associates in the calendar year of 1985 up until he left the company in November, 1985. RX 8 at 494; EX K at 1. According to the deposition testimony of Claimant, Decedent next worked for De Leuw Cather, in Singapore, Taiwan, Turkey, and Thailand. RX 9 at 514-515. Decedent then returned to the United States, first to Maryland, then to Arizona. Id. There is no evidence regarding what his employment with De Leuw Cather entailed.

Agent Orange is an herbicide developed for military use to defoliate trees and shrubbery where the enemy might hide.2 CX H at 2. Agent Orange was used extensively in Vietnam throughout the 1960’s until its use was discontinued in 1971 due to concerns about the product’s potential harmful health effects. Id.; RX 11 at 557. Primarily, Agent Orange was found to contain TCDD or dioxin, a man-made substance found to be harmful to man. Id. In later years, millions of dollars has been spent through the United States Agency for International Development (USAID) to perform remediation of the soil in various parts of Vietnam found to be contaminated with dioxins, particularly Danang, Bien Hoa and Phu Cat. CX I at 1-2.

2 The term “Agent Orange” became the code name for this herbicide since it was stored in drums marked with an orange band.

Summary of Medical Evidence

Decedent had a history of smoking and a history of illness, including hypertension, atrial fibrillation, asthma, and eventually metastatic cancer. Claimant and Decedent eventually relocated to Phoenix, Arizona, and Decedent was treated at the Phoenix, Arizona Veteran Affairs Hospital. Mr. Fowler testified that Decedent smoked a pack or two a day of unfiltered cigarettes while he knew him in Vietnam. CX M at 23. His smoking habit was confirmed by Decedent’s widow. RX 9 at 520-521. Decedent had long suffered from hypertension. Hypertension was present when Decedent initially registered as a patient at the Phoenix Veteran Affairs Hospital on August 9, 2000. RX 13 at 1071-1073. It was also noted that he had asthma. Id. On March 11, 2002, Decedent complained of wheezing and congestion over a two month period.

In May of 2004, Decedent was diagnosed as having a seasonal allergy. RX 9 at 518. On September 10, 2004, Decedent had a lipoma removed from his left chest. The operative note states that Decedent had “a history of multiple sebaceous cysts removed.” Id. at 1076; see also RX 9 at 522 (Claimant testified that Decedent had two or three cysts removed previously). On November 18, 2004, Decedent was seen for persistent coughing and shortness of breath stating he had “had the worst six months of his life. Id. at 1088. A CT scan of his chest on November 18, 2003 showed extensive lymphadenopathy. Id.

On February 4, 2005, he was admitted for inpatient treatment with new onset atrial fibrillation with congestive heart failure. His admitting diagnosis was congestive heart failure secondary to uncontrolled hypertension vs. myocardial infarction vs. arrhythmia. Myocardial infarction was ruled out, but intermittent congestive failure persisted despite diuretics until his death. Id. at 993-1001. On June 20, 2005, when Decedent was admitted for hospice care with shortness of breath and anorexia, chest x-rays showed interstitial infiltrates. Id. at 732-735.

It appears that Decedent had widespread cancer of an unknown type at the time of his death. Decedent was documented to have spinal cord compression by metastases at T3 and T4 thoracic vertebrae. Id. The only specific attempts to make a tissue diagnosis as to type of cancer were on February 1, 2005, with a CT guided needle biopsy of a 2 cm right adrenal mass, and a fine needle aspiration of a thyroid nodule performed on May 5, 2005. CX B at 5-6. After the staff pathologists at the Phoenix VA were unable to determine the source of the cancer tissue, slides were sent to the Armed Forces Institute of Pathology but immunohistochemical stains did not suggest adrenal or thyroid origin of the cancer. Id. at 7-8. The AFIP Department of Pulmonary and Mediastinal Pathology could not confirm his cancer as definitive lung carcinoma. Id. The AFIP Departments of Hepatic and GU Pathology applied additional markers for hepatocyte and renal cells which were negative. Id. The records note, “CD10 appears to show brush border type expression, but they are still doubtful that this represents renal cell carcinoma; however, it cannot be completely ruled out”. Id. The final AFIP opinion was, “[a]t this point the most we can say is this looks like metastatic carcinoma, primary site undetermined.” Id. at 8. He was treated empirically by the Oncology Department at the Phoenix VA as if his cancer were non small cell lung carcinoma, even though there was no tissue confirmation of this diagnosis and no radiological evidence of a focal primary site in the lungs. See generally RX 13.

Decedent was provided radiation therapy and chemotherapy. RX 9 at 519-520. Decedent died on July 3, 2005. At the time of his death he had widespread malignancy of undetermined type, and had recently received radiation therapy and chemotherapy. The death certificate indicates Decedent died on July 3, 2005 from respiratory arrest as a consequence of “lung carcinoma, metastatic, Stage IV non-small cell.” CX C. A staff physician at Phoenix VA, Dr. Rami Sarid, wrote on July 12, 2005: “[Decedent] was a patient under my care. He died of lung cancer and has a significant history of exposure to agent orange. I believe his agent orange exposure caused his lung cancer.” CX B at 3.

Deposition Testimony and Report of Dr. David O. Carpenter

Dr. David O. Carpenter is a Harvard trained public health physician. CX D at 1; CX L at 2. His work has been mainly in research relating to environmental exposures. CX D at 1. Dr. Carpenter has researched the effects of Agent Orange exposure on the Vietnamese civilian population, having visited Vietnam on multiple occasions, and is an expert on health effects as a result of exposure to dioxins such as are contained in Agent Orange. Id. He has published numerous articles relating to his research including articles on environmental health issues. Id. at 7-16.

Dr. Carpenter reviewed the medical records of Decedent and information reported by David Fowler regarding the work done in Vietnam by Employer while Decedent was there. Id. at 1. Dr. Carpenter noted that Decedent was exposed to dioxin in Vietnam when he worked there from 1964 to 1970. Id. at 2. He also noted that Decedent died of widespread metastatic cancer on July 3, 2005, the etiology of which was unknown due to its widespread nature to numerous organs. Id. Dr. Carpenter opined that Decedent’s cancer was likely caused by or contributed to by his exposure to Agent Orange while employed by Employer in Vietnam. Id. Dr. Carpenter noted that the treating physician had attributed Decedent’s cancer to Agent Orange and also pointed to Decedent’s history of serbaceous cysts as evidence of dioxin exposure. Id. at 2-3.

Dr. Carpenter admitted that he is not a clinician involved in treating patients, but opined that as a researcher in environmental causes of human disease, he felt better qualified to opine on Agent Orange exposure and resultant health problems. CX L at 9. He testified that dioxin is a known human carcinogen and that it increases the risk of many more cancers than just those listed by the Veteran’s Administration for purposes of VA disability compensation, citing a number of other national and international organizations which have identified dioxin as a human carcinogen. Id. at 10, 15. Dr. Carpenter opined that Decedent traveled in areas of Vietnam where Agent Orange was used most extensively and also ate the local food which would have, and still does, contain high amounts of dioxin. Id. He noted that the areas in and around Saigon and the Danang air base were among the most heavily dioxin contaminated sites in Vietnam. Id. at 19. Dr. Carpenter testified that even if Decedent had lung cancer primarily caused by his smoking, that the dioxins from Agent Orange would have substantially contributed to his lung cancer. Id. at 12. He also indicated that Decedent may have had multiple chloracne outbreaks, a known result of dioxin exposure, throughout his life but basically ignored them as a minor aggravation. Id. at 21.

Deposition & Hearing Testimony and Report of Dr. Arnold Schecter

Dr. Arnold Schecter is primarily a researcher and professor of epidemiology and environmental and occupational health and has spent much of his time since 1980 engaged in research on dioxins. CX E at 1; TR at 27-28. He has published over 100 articles or book chapters dealing with dioxins, Agent Orange and related topics. CX E at 1. He believes that he is the “only U.S. scientist or physician conducting Agent Orange and dioxin research in Vietnam since 1984,” having visited that country 27 times for his research. Id.; TR at 32. Dr. Schecter reviewed the medical reports of Decedent along with information from Mr. Lyons and Mr. Fowler regarding Decedent’s work in Vietnam. CX E at 2-3. Dr. Schecter opined that based on his working in and near Saigon and the Danang and Bien Hoa airbases, Decedent likely was exposed to dioxin from Agent Orange through the soil and sediment as well as by his ingestion of local food grown and prepared in the area. Id. Dr. Schecter noted that dioxin is a known human carcinogen recognized by numerous organizations including the U.S. Centers for Disease Control and the World Health Organization. Id. at 2; TR at 63-64. Accordingly, Dr. Schecter opined that Decedent’s cancer was more likely than not initiated or promoted by his exposure to Agent Orange while in Vietnam. CX E at 2-3. While smoking may have initiated lung cancer, if that indeed was the etiology of Decedent’s cancer, Dr. Schecter opined that his exposure to dioxin would have combined with the smoking to act as a promoter of the cancer. Id.

Dr. Schecter testified that even today, there can be found high levels of dioxin in the food in Vietnam, particularly around Danang and Bien Hoa air bases where many Agent Orange spraying missions initiated. TR at 32. Using spray charts of Viet Nam, Dr. Schecter noted that these areas were among the heaviest concentrations where Agent Orange was used. Id. at 50-51. See also CX H. Dr. Schecter opined that since Decedent had a higher exposure to dioxin than an average American, that put him at a higher risk of developing cancer and that it was reasonably probable that the dioxin exposure at least contributed to the growth of his cancer whether or not it initiated it. TR at 59. Although the death certificate listed a cause of death as lung cancer, Dr. Schecter pointed out that actually the pathology studies were unable to confirm where the cancer started. Id. at 65-66.

Deposition & Hearing Testimony and Report of Dr. Robert Owen

Dr. Robert Owen is a Harvard trained epidemiologist who currently practices at the San Francisco VA Medical Center and is a professor at U.C. San Francisco. TR at 96-101. He served in the military including a stint with the Center for Disease Control. Id. at 100. He has worked for many years in the VA medical system and has had a particular interest in Agent Orange since 1978. Id. at 106-108. In his 42 years with the VA, Dr. Owen has conducted numerous compensation and pension reviews of veterans seeking VA benefits as a result of Agent Orange exposure. Id. at 108-111.

At the behest of Respondents, Dr. Owen reviewed all of the available medical records of Decedent. RX 10 at 531. Dr. Owen opined that Decedent died due to uncontrolled atrial fibrillation but also noted his death was contributed to by his hypertension, asthma, emphysema and metastatic cancer and the resultant chemo and radiation therefor. Id. at 532-533. Dr. Owen reviewed the relationship of Agent Orange exposure to Decedent’s illness and death through the lists used by the VA in determining whether there is sufficient evidence showing particular conditions as having a relationship to Agent Orange exposure. Id. at 533-536. While Dr. Owen agreed that Decedent was most likely exposed to Agent Orange, he decided that there was insufficient evidence to show that Decedent had any condition, including hypertension or chloracne, that could be related to Agent Orange exposure. Id.; TR at 129. Dr. Owen essentially opined that even if Decedent’s cancer had initiated in his lungs, then he felt that Decedent’s far longer and more direct exposure to smoking fumes was the overwhelming cause of his cancer and death. RX 10 at 536-537; see also TR at 143-144. Dr. Owen did testify that Decedent’s hypertension could be related to dioxin exposure. TR at 142. Dr. Owen also reported that Decedent’s smoking could well have been contributed to by the stress of working in a war environment. RX 10 at 536.

CREDIBILITY

Medical Experts

Much turns on resolving the factual dispute between the medical experts in this case. The administrative law judge determines the credibility and weight to be attached to the testimony of

a medical expert in whole or in part. The judge, in fact, can base one finding on a physician’s opinion and, then, on another issue, find contrary to the same physician’s opinion. Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154 (1993) (ALJ may rely on one medical expert’s opinion on the issue of causation and another on the issue of disability). Further, it is solely within the judge’s discretion to accept or reject all or any part of any testimony, according to his judgment. Perini Corp. v Hyde, 306 F. Supp. 1321, 1327 (D.R.I. 1969). In evaluating expert testimony, the judge may rely on his/her own common sense. Avondale Indus., Inc. v. Director, OWCP, 977 F.2d 186 (5th Cir. 1992). It is the judge who determines credibility, weighs the evidence, and draws inferences; the judge in fact need not accept the opinion of any particular medical examiner. See Banks v. Chicago Grain Trimmers Ass’n., 390 U.S. 459 (1968); Scott v. Tug Mate, Inc., 22 BRBS 164, 165, 167 (1989); Pimpinella v. Universal Maritime Service, Inc., supra. A judge is not bound to accept the opinion of a physician if rational inferences urge a contrary conclusion. Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Ennis v. O. Hearne, 223 F.2d 755 (4th Cir. 1955).

In this case, the opinions of the three retained expert physicians, all eminently qualified as experts in their field, differ primarily in only one respect. All of the expert physicians agree that Decedent was exposed to a higher degree of dioxins through Agent Orange from his work for almost nine years in Vietnam than he would have been exposed to in the United States. All three further agree that the dioxins contained in Agent Orange cause or contribute to a number of health problems including hypertension and lung cancer, among others. They also agree that Decedent had metastatic cancer affecting numerous organs of the body but that the origin of the cancer could not be determined primarily due to its advanced stage when detected. I accept all of these agreed opinions as being credible evidence.

The primary difference of opinion seems to be as to the effect of the unknown etiology of decedent’s cancer upon his right to recover herein. Doctors Carpenter and Schecter opine that the dioxin exposure in Vietnam more likely than not at least contributed to or accelerated Decedent’s cancer and resulting death pointing to various studies as well as Decedent’s hypertension and history of cysts as evidence of the dioxin’s effect on Decedent’s health. Doctor Owen, on the other hand, while apparently admitting the possibility that the Agent Orange exposure may have contributed at least to Decedent’s hypertension, opines that the major cause of his cancer was due to his smoking which spanned more years than his Agent Orange exposure and which continued later than such exposure. Dr. Owen relies upon the VA criteria for associating Agent Orange exposure to various health concerns to bolster his opinion that the smoking was the primary cause of Decedent’s cancer and not the Agent Orange exposure.

I find the opinions of Drs. Carpenter and Schecter to be more persuasive in this regard. I accept that Decedent’s smoking was most likely a cause, probably the primary cause of his cancer. However, the fact is that Decedent was exposed to the deleterious effects of Agent Orange for almost nine years particularly through his living on the local economy eating locally grown food with presumably high contamination from Agent Orange spraying through most of the years Decedent lived in Saigon. Thus, I find the opinions of Drs. Carpenter and Schecter that the dioxins from Agent Orange most likely at least contributed to the initiation of or acceleration of the decedent’s cancer and death. Further, I am reluctant to accept Dr. Owen’s opinion that smoking can unquestionably be related to Decedent’s death but not dioxin exposure where there

is no basis for determining the etiology of the cancer. I find that Dr. Owen’s opinions are perfectly acceptable within the VA medical regime for determining whether a veteran has proven a relationship of a particular health condition to exposure to Agent Orange. However, the rules under the Act differ from those of the VA, primarily in that the Act grants the Section 20(a) presumption to a Claimant, thus easing the Claimant’s burden of proof. I believe that Dr. Owen has not appreciated the influence of the Section 20(a) presumption in giving his opinion. Accordingly, I accept the opinion of Drs. Carpenter and Schecter that the Decedent’s exposure to Agent Orange in Vietnam played some causative role, even though perhaps a minor role, in Decedent’s cancer and health conditions leading to his death.

Claimant

Claimant gave limited factual testimony about the circumstances surrounding her husband’s death. She was not present at the time and therefore could not speak to what actually happened. She testified that Deceased had told her of his work in Vietnam for a number of years before they met which Employer does not dispute. Accordingly, I find her testimony to be credible, although of limited scope.

CONCLUSIONS OF LAW

The Act is construed liberally in favor of injured employees. Voris v. Eikel, 346 U.S. 328, 333 (1953); J.B. Vozzolo, Inc. v. Britton, 377 F.2d 144 (D.C. Cir. 1967). However, the United States Supreme Court has determined that the true-doubt rule, which resolves factual doubt in favor of the Claimant when the evidence is evenly balanced, violates Section 7(c) of the Administrative Procedure Act, 5 U.S.C. Section 556(d), which specifies that the proponent of a rule or position has the burden of proof and, thus, the burden of persuasion. Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994), aff’g 990 F.2d 730 (3d Cir. 1993). In arriving at a decision in this matter, it is well settled that the finder of fact is entitled to determine the credibility of witnesses, to weigh the evidence and draw his own inferences therefrom, and is not bound to accept the opinion or theory of any particular medical examiners or other expert witnesses. Bank v. Chicago Grain Trimmers Ass’n, Inc., 390 U.S. 459, 467 reh’g denied, 391 U.S. 929 (1968); Atlantic Marine, Inc. and Hartford Accident & Indemnity Co. v. Bruce, 661 F.2d 898, 900 (5th Cir. 1981); Duhagon v. Metro. Stevedore Co., 31 BRBS 98, 101 (1997).

Section 2 of the Act states that the death or injury must “arise out of and in the course of employment.” 33 U.S.C. §902(2). Further, it is presumed that the claim comes within the provisions of the Act unless substantial evidence to the contrary is presented. 33 U.S.C. §920. The Supreme Court has held that a prima facie claim for compensation to which the statutory presumption refers “must at least allege an injury that arose in the course of employment as well as out of employment.” U.S. Indus./Fed. Sheet Metal v. Director, OWCP, 455 U.S. 608 (1982), rev’g Riley v. U.S. Indus./Fed. Sheet Metal, 627 F.2d 455 (D.C. Cir. 1986).

The parties dispute the causation of Decedent’s death. The causation analysis proceeds in three steps. First, Claimant must establish a prima facie case, thereby invoking the Section 20(a) presumption of causation. Second, Respondents may rebut the Section 20(a) presumption by producing substantial evidence tending to disprove Claimant’s prima facie case. Third, if

Respondents succeed in their rebuttal, then I must evaluate all of the evidence and reach a decision based on the record as a whole. Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935); Glover v. Aerojet-General Shipyard, 6 BRBS 559 (1977); Norat v. Universal Terminal & Stevedoring Corp., 3 BRBS 151 (1976); Care v. Washington Metro. Area Transit Auth., 21 BRBS 248 (1988); but cf. Maher Terminals v. Director, OWCP, 992 F.2d 1277, 1284-85 (3d Cir. 1993), 27 BRBS 1 (CRT) (APA prohibits application of the true doubt rule to LHWCA).

Prima Facie Case

Section 20(a) Presumption

Section 20(a) entitles Claimant to a presumption that his “claim comes within the provisions of this Act.” 18 U.S.C. § 920(a). Claimant bears the burden to establish each element of his prima facie case by affirmative proof; the Section 20(a) presumption provides no aid to this effort and operates only after he has established his prima facie case. 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). Section 20(a) of the LHWCA presumes, in the absence of substantial evidence to the contrary, that the claim for death benefits comes within the provisions of the LHWCA, i.e., that the death was work-related. Sprague v. Director, OWCP, 688 F.2d 862 (1st Cir. 1982). See also Woodside v. Bethlehem Steel Corp., 14 BRBS 601 (1982) (“It is well-established that, if an injury aggravates, exacerbates, accelerates, contributes to, or combines with a previous infirmity, disease, or underlying condition, the resultant condition is compensable….This rule is consistent with the maxim that ‘to hasten death is to cause it.'”); Fineman v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993) (length of hastening is not significant).

To establish a prima facie claim for benefits, a claimant has the burden of establishing that: (1) the employee sustained physical harm or pain; and (2) an accident occurred in the course of employment, or conditions existed at work, which could have caused, aggravated, or accelerated the harm or pain. Port Cooper/T. Smith Stevedoring Co., Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000); Kier v. Bethlehem Steel Corp., 16 BRBS 128, 129 (1984); D.D. (widow of E.D.) v. Electric Boat Corp., BRB No. 08-0103, slip op. 6 (Aug. 14, 2008). Once this prima facie case is established, a presumption is created under Section 20(a) that the employee’s injury or death arose out employment. 33 U.S.C. 920(a); Hunter, 227 F.3d at 287. In the Ninth Circuit, “[a]ll that must be proved is that the covered employer exposed the worker to injurious stimuli in sufficient quantities to cause the disease.” Todd Pacific Shipyards Corp. v. Black, 717 F.2d 1280, 1286 (9th Cir. 1983); Todd Pacific Shipyards Corp. v. Director, OWCP, 24 BRBS 36, 39 (1990) (“[M]inimal exposure to offensive stimuli at a place of employment is not sufficient to place responsibility on a covered employer in the absence of proof that exposure in such quantities had the potential to cause his disease.”).

It is important to note that, unlike some state workers’ compensation systems which may require apportionment, under the Longshore Act, an injury needs only to have been partially caused by work for a covered employer to be fully compensable. If a claimant’s employment aggravates a non-work-related, underlying disease or condition so as to produce incapacitating symptoms, the resulting disability is compensable. See Gardner v. Bath Iron Works Corp., 11

BRBS 556 (1979), aff’d sub nom. Gardner v. Dir., OWCP, 650 F.2d 1385, 13 BRBS 101 (1st Cir. 1981). Even the most minute of permanent increases to the degree of disability or symptoms is sufficient. See Indep. Stevedore Co. v. O’Leary, 357 F.2d 812 (9th Cir. 1966) (the relative contribution of the preexisting condition and the aggravation are not weighed); Lopez v. S. Stevedores, 23 BRBS 295, 297 (1990).

In this case, there is no dispute that Claimant’s Decedent sustained a physical harm, metastatic cancer resulting in his death.

To satisfy the causal element of a prima facie case, an ordinary Longshore claimant need only introduce affirmative evidence of the existence of working conditions that could conceivably have caused the harm alleged. See Champion v. S&M Traylor Bros., 690 F.2d 285, 295 (D.C. Cir. 1982). Under the Defense Base Act, however, the causation element is broadened, such that the requisite “working conditions” include the entire “Zone of Special Danger” created by the “obligations or conditions” of the claimant’s employment abroad. O’Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359 (1965); O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951); Gillespie v. General Elec. Co., 21 BRBS 56 (1988); Smith v. Board of Trustees, S. Ill. Univ., 8 BRBS 197, 199 (1978). The “Zone of Special Danger” is so broad, in fact, that it encompasses nearly any harm sustained while abroad in the employ of a covered employer, including harm that results from purely recreational activities, e.g. O’Leary, 340 U.S. 507; Smith v. Board of Trustees, S. Ill. Univ., 8 BRBS 197, 199, or even purely coincidental disease-related harm, e.g. Ford Aerospace & Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982) (heart attack while off duty in barracks provided by employer in Thule, Greenland); Smith, 8 BRBS at 199 (1978) (gastrointestinal attack during off-duty round of golf). The Ninth Circuit in fact reversed, albeit without opinion, the Board’s prior view that the “Zone of Special Danger” doctrine only applies to the peculiar risks arising in foreign settings. Preskey v. Cargill, Inc., 12 BRBS 917 (1980), rev’d mem., 667 F.2d 1031, 14 BRBS 340 (9th Cir. 1981). Claimant’s causational theory must go beyond “mere fancy,” nonetheless. See Champion v. S&M Traylor Bros., 690 F.2d 285, 295 (D.C. Cir. 1982); Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968).

Here, the evidence suffices to establish both the harm and causal elements of a prima facie case regarding the injury. Decedent suffered death as a consequence of cancer that had spread to a number of his organs. All three experts testified that Decedent was likely exposed to significant amounts of dioxins during his nine years of work and living in Vietnam. While Respondents argue in their brief that Dr. Owen did not find substantial exposure of Claimant to Agent Orange, Dr. Owen’s testimony and report are clearly to the contrary. See RX 10 at 533 (“He was therefore more likely than not exposed to Agent Orange in the course of his employment”); TR at129 (“I will accept that [Decedent] was exposed to a greater degree in Vietnam than we would be living in San Francisco at the present time.”) All three experts testified that the dioxins contained in Agent Orange can cause numerous health problems. Indeed, all three experts devote a large portion of their professional practices to the research into the health problems posed by exposure to the dioxins in Agent Orange. Clearly, Decedent’s exposure to Agent Orange while working in Vietnam brings him within the “zone of special danger.” See O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951); Smith v. Board of Trustees, S. Ill. Univ., 8 BRBS 197, 199 (1978); Ford Aerospace & Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982).

On the basis of the testimony of Drs. Carpenter and Schecter, as well as that of Dr. Owen, Claimant therefore successfully has invoked the Section 20(a) presumption.

Employer’s Rebuttal

Rebuttal

An Employer may rebut the Section 20(a) presumption by presenting substantial evidence tending to sever the potential connection between the disability and the work environment. Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 267, 13 BRBS 182, 185 (D.C. Cir. 1981), rev’g 11 BRBS 468 (1979), cert. denied, 456 U.S. 904 (1982); Cairns v. Matson Terminals, 21 BRBS 252, 252 (1988); Webb v. Corson & Gruman, 14 BRBS 444, 447 (1981). Furthermore, it is well-settled that mere hypothetical probabilities are insufficient to rebut the presumption, Smith v. Sealand Terminal, 14 BRBS 844, 846 (1982), and that the presumption is not rebutted merely by suggesting an alternate way that the claimant’s injury might have occurred, Williams v. Chevron U.S.A., 12 BRBS 95 (1980). For example, in Neeley v. Newport News Shipbuilding & Dry Dock Co., the Board vacated a judge’s determination that an employer failed to rebut the presumption because three doctors maintained that the claimant’s cancer resulted solely from smoking and not asbestos exposure. 19 BRBS 138, 139 (1986). These medical opinions rebutted the Section 20(a) presumption because they were specific and comprehensive and thereby severed the connection between the claimant’s injury and his employment. Id.

In order to establish rebuttal, employer is not required to rule out any possible causal connection between claimant’s employment and his condition but must produce “substantial evidence” that the work injury is not due, even in part, to the work exposures. D.D. (widow of E.D.) v. Electric Boat Corp., BRB No. 08-0103, slip op. 6 (Aug. 14, 2008) (citing Bath Iron Works Corp. v. Director, OWCP [Harford], 137 F.3d 673, 32 BRBS 45 (1st Cir. 1998)). For example, in D.D. the Board indicated that the employer could rebut the presumption by presenting expert testimony that asbestos did not cause, contribute to or accelerate claimant’s kidney cancer or death. Employer’s experts supported their contentions by stating that the medical literature does not support an association between asbestos exposure and kidney cancer. The expert indicated that the reliance on the Selikoff study is misplaced because the results were not supported by the more recent studies and because asbestos fibers “do no concentrate in the kidneys to a significant enough level to promote carcinogenesis.”3 Id.

3 The BRB nevertheless remanded the case back to the ALJ because the ALJ relied on the “doctors’ statements that decedent’s exposure was not significant enough to cause cancer, which conflict[ed] with the administrative law judge’s finding that decedent had substantial exposure…” D.D., BRB No. 08-0103, at 8.

Medical evidence generally plays a central role in evaluating the employer’s substantial evidence rebuttal burden, and so it does here. Equivocal medical evidence as to causation does not suffice to satisfy an employer’s burden; any medical evidence tending to sever the causal link does not necessarily constitute substantial evidence. See MacDonald v. Trailer Maine Transp. Corp., 18 BRBS 259 (1986) (upholding ALJ’s determination that employer failed to satisfy substantial evidence burden by solely presenting physicians’ testimony that doubted, but could

not rule-out, a causal link between claimant’s injury and employment). To the contrary, Respondents may satisfy their burden by producing unequivocal credible medical evidence. See Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984); see also Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS 11 (CRT) (1st Cir. 1982), aff’g Sprague v. Bath Iron Works Corp., 13 BRBS 1083 (1981) (Section 20(a) rebutted by medical evidence that osteotongelitis caused by staph infection and not by alleged work-related leg wounds); Hislop v. Marine Terminals Corp., 14 BRBS 927 (1982) (medical report sufficient to establish heart attack did not arise out of exposure to carbon monoxide at work rebutted presumption); Orkisz v. U.S. Army Tank Automotive Command, 13 BRBS 948 (1981), aff’d, 708 F.2d 726 (6th Cir. 1982) (medical evidence sufficient to establish that the claimant did not sustain a compensable injury as a result of a slip and fall at work rebutted Section 20(a)); Clymer v. E-Systems, 13 BRBS 1067 (1981), rev’d mem., 694 F.2d 720 (5th Cir. 1982), cert. denied, 464 U.S. 956 (1983) (physician’s testimony that claimant’s hypertension and diabetes mellitus would have occurred regardless of employment and were not aggravated by his work environment sufficient to rebut).

Here, I find that Respondents ultimately fail to meet their substantial evidence burden. Respondents have offered the opinion of Dr. Owen that Decedent’s death was in no way related to his work but rather was due to his smoking. As noted previously, I do not find Dr. Owen’s opinion that Decedent’s exposure to Agent Orange was not causally related to his death to be credible. Dr. Owen uses the unknown etiology of Decedent’s cancer to opine that it therefore cannot be shown conclusively that the Agent Orange exposure contributed to his cancer and death. However, he has no problem in connecting the cancer and death to Decedent’s smoking even in the absence of the cancer’s etiology. Dr. Owen clearly arrives at his conclusion that smoking was the “main” cause of Decedent’s cancer rather than Agent Orange Exposure due to the longer number of years Decedent smoked as opposed to the number of years he was exposed by his work in Vietnam. See RX 10 at 536-537; TR at 143-144. This fails to recognize not only the Section 20(a) presumption and the “zone of special danger” doctrine, but also the slight contribution or aggravation factor required for complete coverage under the Act. Dr. Owen never ruled out the possibility that Agent Orange dioxins may have contributed or accelerated Decedent’s cancer and death; he merely opined that he could not adequately relate the exposure to the cancer due to its unknown etiology. Thus, Dr. Owen ascribed the unknown cancer to smoking. However, Dr. Owen also testified that Claimant’s smoking was most likely increased by the stress of the war conditions he lived and worked in during his employment in Vietnam. RX 10 at 536. This testimony alone is sufficient to find that Decedent’s working conditions, i.e.- stress of war conditions, caused or at least contributed to Decedent’s smoking and thus his eventual cancer and death, even under Dr. Owen’s theory.

I find, accordingly, that Respondents have failed to meet their substantial evidence burden, and likewise have failed to rebut the Section 20(a) presumption.

Review of the Record on the Whole

A review of the record on the whole still favors Claimant, even assuming, arguendo, that Respondents had successfully rebutted the Section 20(a) presumption. In reviewing the whole record, an ALJ is entitled to weigh the medical evidence and draw his own inferences from it and

is not bound to accept the opinion or theory of any particular medical examiner. Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962). It is solely within the discretion of the judge to accept or reject all or any part of any testimony according to his judgment. Perini Corp. v. Heyde, 306 F. Supp. 1321 (D.R.I. 1969); see also Poole v. National Steel & Shipbuilding Co., 11 BRBS 390 (1979); Grimes v. George Hyman Constr. Co., 8 BRBS 483 (1978), aff’d mem., 600 F.2d 280 (D.C. Cir. 1979); Tyson v. John C. Grimberg Co., 8 BRBS 413 (1978).

If the presumption is rebutted, it no longer controls and the record as a whole must be evaluated to determine the issue of causation. Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935); American Grain Trimmers, Inc. v. Director, OWCP, 181 F.3d 810, 815-16 (7th Cir. 1999). In such cases, the undersigned must weigh all of the evidence relevant to the causation issue. If the record evidence is evenly balanced, then the employer must prevail. Director, OWCP v. Greenwich Colleries, 512 U.S. 267, 281 (1994). The burden of persuasion that the longshoreman’s death was caused or hastened by a work-related occupational disease or injury remains with the claimant. American Grain Trimmers, Inc. 181 F.3d at 816-17. However, an “employment exposure need not be the sole cause of the employee’s injury or death to be compensable.” D.D., BRB 08-0103, slip op. at 11 (holding that by “requiring claimant to minimize or rule out decedent’s non-occupational risk factors, the administrative law judge effectively required claimant to show that asbestos alone caused decedent’s disease and deal” and thus could not be affirmed); see SAIF Corp./Oregon Ship. v. Johnson, 908 F.2d 1434, 23 BRBS 113 (9th Cir. 1990) (holding employer liable for the entire disability despite that fact that the respiratory impairment was due in part to cigarette smoking, as well as the work exposure to asbestos); Director, OWCP v. Bessel Repair , Inc., 168 F.3d 190, 193 (5th Cir. 1999) (holding that “the only legally relevant question is whether the work injury is a cause of [the] disability,” not whether it is the sole cause).

Here, as discussed above, I find that the opinions of Drs. Carpenter and Schecter that the exposure of Decedent to Agent Orange was at least a contributing or accelerating cause of his cancer and death to be credible and well-reasoned. Accordingly, I therefore find that Claimant has established causation, even irrespective of the Section 20(a) presumption.4

4 I recognize that the result reached herein differs from the denials of benefits in Parker v. Amer. Nat. Red Cross, B.R.B. 92-0603 (Feb. 12, 1996); Wendler v. Am. Nat. Red Cross,B.R.B. 93-2319 (May 29, 1996); and Ebron v. Am. Nat. Red Cross, B.R.B. 02-0603 (May 16, 2003). However, in each of these prior cases, the alleged exposure was no longer than one year as opposed to the almost nine years of exposure in this case. Further, more is now known of the deleterious health effects of dioxins from Agent Orange, due in no small part to the research and work of the three expert witnesses who testified in this matter. Of particular note is the apparent assumption in these three prior cases that an individual had to be physically in contact with Agent Orange while the expert testimony in this case clearly established that dioxins from Agent Orange contaminated the soil in Vietnam and thus the food grown therein. I note the millions spent by the USAID on dioxin soil remediation in various parts of Vietnam. CX I at 1-2. Thus, the nine years spent by this Decedent living and eating the native food grown in Vietnam differentiate his level of dioxin exposure from that of the Claimants in the three earlier decisions.

Calculation of Death Benefit

The pertinent portion of Section 9 of the LHWCA reads as follows:

If the injury causes death, the compensation therefore shall be

known as a death benefit and shall be payable in the amount and

to or for the benefit of the persons following:

(b) If there be a widow or widower and no child of the deceased

to such widow or widower 50 per centum of the average wages of

the deceased, during widowhood, or dependent widowerhood…

(e) In computing death benefits, the average weekly wages of the

deceased shall not be less than the national average weekly wage

as prescribed in section 6(b), but—

(1) the total weekly benefits shall not exceed the lesser of the average weekly wages of the deceased or the benefit which the

deceased employee would have been eligible to receive under section 6(b)(1); and

(2) in the case of a claim based on death due to an occupational disease for which the time of injury (as determined under section 10(i) occurs after the employee has retired, the total weekly benefits shall not exceed one fifty-second part of the employee’s average annual earnings during the 52-week period preceding retirement.

Claimant argues that Decedent’s compensation rate should be calculated solely by reference to Section 9(e)(2) but without reference to the other portions of the Act. See Claimant’s Written Closing Argument at 23-22. In other words, Claimant argues that her death benefit should be based on one fifty-second of Decedent’s average annual earnings during the 52 week period prior to his retirement from his work. Id. Thus, Claimant asserts that the appropriate death benefit should be $926.48 per week calculated as 50% of 1/52 of $96,353.55, the amount earned by Decedent during his last year of employment. Id. Respondents argue that the language at Section 9(e)(2) is a limitation of the death benefit to no more than the actual average weekly wage earned by a decedent in the year prior to his retirement should the death benefit of 50% of the national average weekly wage at the time of injury, as set forth at Section 10(d)(2)(B) of the Act, be in excess of the decedent’s average weekly earnings in the year prior to his death. See Defendants’ Post Trial Brief at 18-19.

The pertinent provisions of Section 10 of the Act state:

(d)(1) The average weekly wages of an employee shall be one fifty-second part of his average annual earnings.

(2) Notwithstanding paragraph (1), with respect to any claim based on a death or disability due to an occupational disease for which the time of injury (as determined under subsection (i)) occurs—

(A) within the first year after the employee has retired, the average weekly wages shall be one fifty-second part of his average annual earnings during the 52-week period preceding retirement; or

(B) more than one year after the employee has retired, the average weekly wage shall be deemed to be the national average weekly wage (as determined by the Secretary pursuant to section 6(b) [33 USC § 906(b)]) applicable at the time of the injury.

(i) For purposes of this section with respect to a claim for compensation for death or disability due to an occupational disease which does not immediately result in death or disability, the time of injury shall be deemed to be the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.

Thus, in cases of voluntary retirement more than one year prior to the injury, Section 10(d)(2)(B) specifies that the average weekly wage shall be deemed to be the national average weekly wage [as determined under Section 6(b)] applicable at the time of injury. Taddeo v.Bethlehem Steel Corp., 22 BRBS 52, 54-55 (1989); Shaw v. Bath Iron Works Corp., 22 BRBS 73 (1989) (retroactive application constitutional); Machado v. General Dynamics Corp., 22 BRBS 176 (1989); Jones v. U.S. Steel Corp., 22 BRBS 229, 233 (1989); Macleod v. Bethlehem Steel Corp., 20 BRBS 234, 236-37 (1988). “Injury” in this context is defined as the date on which the employee or the claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability. Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989). Thus, for the award of death benefits, the national average weekly wage in effect at the date of the decedent’s death is the proper average weekly wage. Bailey v. Bath Iron Works Corp., 24 BRBS 229, 231 (1991); Martin v. Kaiser Co., 24 BRBS 112 (1990); Jones v. U.S. Steel Corp., 22 BRBS 229 (1989).

According to Section 9(e)(2), as modified by the 1984 Amendments, in case of death due to an occupational disease for which the time of injury occurs after retirement, the total weekly benefits shall not exceed 1/52 of the employee’s average annual earnings for the 52-week period preceding retirement. Ponder v. Kiewit Sons’ Co., 24 BRBS 46, 53 (1990). Where Section 9(e)(2) applies and the weekly death benefits calculated under Section 9(b) exceed 1/52 of the employee’s annual earnings, the benefits will be modified so that they will not exceed the latter amount. Id. Pursuant to Section 9(e), as amended in 1984, “which establishes a minimum and maximum benefit level in computing death benefits, the average weekly wage of the deceased shall not be less than the national average weekly wage, and the total benefits awarded may not exceed the lesser of the actual average weekly wage of decedent or the maximum benefit which an employee is eligible to receive under 33 U.S.C. § 906(b)(1)…. Section 6(b)(1) also imposes a

cap on both disability and death benefits equivalent to 200 percent of the national average weekly wage.” Buck v. General Dynamics Corp. Elec. Boat Div., 22 BRBS 111, 114 (1989).

In Donovan v. Newport News Shipbuilding & Dry Dock Co., 31 BRBS 2 (1997), the Board examined the meaning of “shall not exceed” in Section 9(e)(1). The Board held that the phrase is applicable only to the initial calculation of the base rate at which death benefits are payable, and does not act as a ceiling on the rate at which death benefits can be paid to a surviving spouse. Accordingly, I find that Claimant’s death benefit should be calculated initially at 50% of the national average weekly wage at the time the injury was determined and as of death, which is $523.58. Thus, Claimant is entitled to death benefits at the rate of $261.79 from July 3, 2005 subject to adjustment annually thereafter pursuant to Section 10(f) of the Act.

Interest

The Claimant is entitled to interest on any accrued, unpaid compensation benefits. Watkins v. Newport News Shipbuilding & Dry Dock Co., 8 BRBS 556, 559 (1978), aff’d in part, rev’d in part sub nom., Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 594 F.2d 986 (4th Cir. 1979). Interest is mandatory and cannot be waived in contested cases. Canty v. S.E.L. Maduro, 26 BRBS 147 (1992); Byrum v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 833 (1982); MacDonald v. Sun Shipbuilding & Dry Dock Co., 10 BRBS 734 (1978). Accordingly, interest on the unpaid compensation owed by the Respondents should be included in the District Director’s calculations of amounts due.

Attorney’s Fees

Thirty days is hereby allowed to Claimant’s counsel for the submission of an application for attorney’s fees. See 20 C.F.R. § 702.132. A service sheet showing the service has been made upon all the parties, including the Claimant, must accompany this application. The parties have fifteen days following the receipt of any such application within which to file any objections.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and on the entire record, I issue the following compensation order. The specific dollar computations may be administratively calculated by the District Director.

It is therefore ORDERED:

1. Respondents shall pay the Claimant funeral expenses as surviving spouse pursuant to Section 9(a) of the Act.

2. Respondents shall pay interest on Claimant’s unpaid funeral expenses and death benefits from the date the amounts became due until the date of actual payment at the rate prescribed under the provisions of 28 U.S.C. § 1961.

3. Respondents shall pay Claimant death benefits at the rate of $261.79 weekly from July 3, 2005, with annual increases thereafter in accordance with Section 10(f) of the Act.

IT IS SO ORDERED.

Russell D. Pulver

Administrative Law Judge

San Francisco, California