Albina Engine & MacHine v. Director, Office of Workers' Compensation Programs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBINA ENGINE & MACHINE; 

FIREMAN’S FUND INSURANCE CO.,

Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS’ No. 09-70592

COMPENSATION PROGRAMS; BENEFITS

REVIEW BOARD; KAREN  BRB No. 08-0403

MCALLISTER, Widow of James R. OPINION

McAllister; LOCKHEED SHIPBUILDING

and WAUSAU INSURANCE COMPANY;

WILLAMETTE IRON & STEEL CO.;

SAIF CORPORATION,

Respondents.



On Petition for Review of an Order of the

Benefits Review Board

Argued and Submitted

October 7, 2010—Portland, Oregon

Filed December 10, 2010

Before: A. Wallace Tashima, Richard A. Paez, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima

19855

19858 ALBINA ENGINE & MACHINE v. OWCP

COUNSEL

Dennis R. VavRosky, VavRosky MacColl, Portland, Oregon,

for the petitioners.

ALBINA ENGINE & MACHINE v. OWCP 19859

Russell A. Metz, Metz & Associates, Seattle, Washington, for

respondents Lockheed and Wausau Insurance Co.

Norman Cole, Sather, Byerly & Holloway, Portland, Oregon,

for respondent Willamette Iron & Steel Co.

Barry H. Joyner, U.S. Department of Labor, Office of the

Solicitor, Washington, D.C., for the Director.

OPINION

TASHIMA, Circuit Judge:

Albina Engine & Machine (“Albina”) petitions for review

of a decision of the Benefits Review Board (the “Board”)

upholding the Administrative Law Judge’s (“ALJ”) ruling

that Albina is liable for payment of death benefits to Karen

McAllister (“Claimant”) under the Longshore and Harbor

Workers’ Compensation Act (the “LHWCA”), 33 U.S.C.

§ 901 et seq. Claimant is the widow of James McAllister

(“Decedent”), who died of mesothelioma as a result of expo-

sure to asbestos during his work as a carpenter for three ship-

yard employers, one of which was Albina. Albina argues that

the Board misconstrued existing law on the burden of proof

in LHWCA proceedings against multiple employers, misap-

plied the “last employer” rule, and upheld the ALJ’s decision

that was not supported by substantial evidence. Albina further

contends that liability for payment of benefits should have

been assigned instead to Lockheed Shipbuilding

(“Lockheed”), another of Decedent’s former employers. We

have jurisdiction under 33 U.S.C. § 921(c) and grant the peti-

tion for review, concluding that Lockheed is liable for the

payment of benefits.

I. BACKGROUND

In 1956, Decedent worked as a shipyard carpenter in the

vicinity of Portland, Oregon, first for Willamette Iron & Steel

19860 ALBINA ENGINE & MACHINE v. OWCP

Co. (“WISCO”) and then for Albina. In 1957, Decedent

moved to Seattle and worked in a similar capacity at a pre-

decessor company to Lockheed. Decedent ceased maritime

employment in 1960. He died in 2002 of mesothelioma.

Claimant, his widow, filed a claim for death benefits pursuant

to § 9 of the LHWCA, 33 U.S.C. § 909, against Lockheed,

Albina, and WISCO.

All parties stipulated that Decedent’s injuries occurred

while he was employed at a maritime situs, that his death was

due to mesothelioma caused by exposure to asbestos, and that

the examining pathologist would, if called to testify, state that

any level of exposure to asbestos can cause mesothelioma.

The principal remaining issue to be decided by the ALJ at

trial was the question of which employer — Lockheed, Albina

or WISCO — should be liable for the payment of benefits. A

trial was held before ALJ Paul Mapes (“ALJ Mapes”) in Feb-

ruary 2004, and in July 2004, ALJ Mapes issued a decision

finding Lockheed liable. The Board reversed and remanded in

an opinion issued on August 19, 2005 (“McAllister I”). On

remand, ALJ Mapes again found Lockheed liable. The Board

again reversed and remanded in an opinion issued on April

26, 2007 (“McAllister II”). On the second remand, the case

was heard by ALJ Steven B. Berlin (“ALJ Berlin”), who

found Albina liable for the payment of benefits. The Board

affirmed in a decision issued on December 30, 2008

(“McAllister III”).

The three opinions of the Board contain the following state-

ments of the law with respect to how liability should be

assigned in an LHWCA case involving multiple employers:

• The so-called “Section 20(a) presumption” set

forth in 33 U.S.C. § 920(a) is invoked only “on

behalf of a claimant,” and not “against a particu-

lar employer.” McAllister I at 4.

• Once the § 20(a) presumption is invoked, the

ALJ must then “weigh relevant evidence” with

ALBINA ENGINE & MACHINE v. OWCP 19861

respect to all potentially responsible employers to

determine which is liable for payment of benefits.

McAllister II at 7.

• The “last employer rule,” adopted by this court in

Cordero v. Triple A Mach. Shop, 580 F.2d 1331

(9th Cir. 1978), which assigns liability for pay-

ment of benefits to the injured employee’s last

covered employer, does not mean that the last

employer bears any special burden of proof.

Instead, once a claim has been established as

compensable, each potentially liable employer

bears the same burden of proving, by a prepon-

derance of the evidence, either that the claimant

was not exposed to injurious stimuli at that

employer in sufficient quantities to cause his dis-

ease, or that the claimant was exposed to injuri-

ous stimuli while working for a subsequent

covered employer. The ALJ should consider the

evidence with respect to all employers simulta-

neously. McAllister II at 9.

• If no employer manages to persuade the ALJ that

its evidence is “entitled to greater weight,” then

the ALJ should assign liability to the claimant’s

last employer. McAllister II at 6.

In keeping with the Board’s instructions, on the Board’s

second remand, ALJ Berlin weighed all of the evidence

regarding Decedent’s exposure to asbestos at the three

employers and determined that “Lockheed’s evidence is enti-

tled to greater weight.” ALJ Berlin noted that WISCO admit-

ted that Decedent was exposed to asbestos in its employ, and

that Decedent had done essentially identical work for Albina

as he did for WISCO, but that the evidence of asbestos expo-

sure at Lockheed was weaker. ALJ Berlin determined that

Lockheed had “met its burden of showing (more likely than

not) the absence of exposure” during Decedent’s employment

19862 ALBINA ENGINE & MACHINE v. OWCP

with Lockheed, and that there was no preponderance of evi-

dence showing an absence of exposure at Albina. Because

Decedent worked for Albina after he worked for WISCO,

ALJ Berlin found Albina liable for the payment of benefits.

The Board affirmed.

Albina timely petitioned for review. At the request of this

court, the Director of the Office of Workers’ Compensation

Programs (the “Director”) filed a supplemental brief setting

forth the Director’s views on the case.

II. ANALYSIS

A. Standard of Review

We review decisions of the Board for (1) errors of law, and

(2) failure to adhere to the statutory standard governing the

Board’s review of ALJ decisions, which is one of substantial

evidence. Todd Pac. Shipyards Corp. v. Dir., OWCP

(“Picinich”), 914 F.2d 1317, 1319 (9th Cir. 1990). The

Board’s interpretation of the LHWCA is not entitled to any

“special deference.” Port of Portland v. Dir., OWCP

(“Ronne”), 932 F.2d 836, 838 (9th Cir. 1991). This court

does, however, defer to the statutory interpretations of the

Director. Id.; Dir., OWCP v. Palmer Coking Coal Co.

(“Manowski”), 867 F.2d 552, 555 (9th Cir. 1989).

B. Burden of Proof

Albina argues that the Board erred in placing on each

employer the burden of establishing that it was not the respon-

sible employer, and suggests that the Board also erred in con-

cluding that the § 20(a) presumption applies to the claim,

rather than to specific employers.

ALBINA ENGINE & MACHINE v. OWCP 19863

1. Section 20(a) Presumption

[1] The § 20(a) presumption provides: “[I]t shall be pre-

sumed, in the absence of substantial evidence to the contrary

. . . [t]hat [a claim for compensation] comes within the provi-

sions of [the LHWCA].” 33 U.S.C. § 920(a). In order to

invoke the presumption, a claimant must allege: (1) that he

has been injured; and (2) that the injury arose both “in the

course of” and “out of employment.” U.S. Indus./Fed. Sheet

Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615 (1982); see also

Sprague v. Dir., OWCP, 688 F.2d 862, 864 (1st Cir. 1982);

Volpe v. Ne. Marine Terminals, 671 F.2d 697, 700 (2nd Cir.

1982). A claimant must offer “some evidence” of both fac-

tors. See Brown v. I.T.T./Cont’l Baking Co. & Ins. Co. of N.

Am., 921 F.2d 289, 296 n.6 (D.C. Cir. 1990) (“In order to

come within the section 20 presumption, all the claimant need

adduce is some evidence tending to establish the prerequisites

of the presumption.”); see also Ramey v. Stevedoring Servs.

of Am., 134 F.3d 954, 960 (9th Cir. 1998) (holding that

uncontradicted testimony by the claimant regarding working

conditions is sufficient evidence to invoke the § 20(a) presump-

tion).1 The employer may then overcome the presumption by

presenting “substantial evidence” to rebut the claim that the

injury is work-related (i.e., that it arose in the course of and

out of the claimant’s employment). Ramey, 134 F.3d at 959;

see also Volpe, 671 F.2d at 700. If the employer succeeds in

rebutting the presumption, the ALJ must then evaluate

whether the evidence as a whole justifies the awarding of ben-

1

The First Circuit has interpreted this court’s holding in Picinich as

requiring a higher standard than “some evidence.” Bath Iron Works v.

Brown, 194 F.3d 1, 5 n.4 (1st Cir. 1999). That interpretation is a misread-

ing of Picinich, however. In Picinich, this court did not consider whether

the claimant had introduced sufficient evidence to invoke the § 20(a) pre-

sumption. Instead, the primary question concerned the level of injurious

stimuli to which a claimant needed to have been exposed at a particular

employer for that employer to be found liable. Picinich, 914 F.2d at 1319-

20.

The Board stated in McAllister I that “substantial evidence” is required

for a prima facie case, but that statement is entirely unsupported by the

case law, including that cited by the Board in support.

19864 ALBINA ENGINE & MACHINE v. OWCP

efits. Id. The claimant bears the ultimate burden of persuasion

by a preponderance of the evidence. Bath Iron Works, 194

F.3d at 6.

[2] Contrary to the Board’s repeated statements in its deci-

sions in this case, the § 20(a) presumption is relevant to the

question of liability in a multi-employer case, and not just to

the question of whether a claim is compensable in the first

instance. It is illogical to state, as the Board does, that § 20(a)

applies only to the compensability of a claim, and not to the

question of the liable employer, because of the nature of the

prima facie case that a claimant is required to make under

§ 20(a). The presumption is invoked only if a claimant alleges

that his injury arose out of and in the course of his employ-

ment. It is implicit in this language that the employment

referred to is employment with a particular employer, against

whom a claim has been filed. Where only a single employer

is claimed against, the claimant would of course not be able

successfully to assert a claim that fell within the § 20(a) pre-

sumption on the basis of evidence relating to employment

with some other employer that was not claimed against. Simi-

larly, in a claim against multiple employers, the claimant

should be expected to make out a prima facie case against all

of the employers; if the claimant fails to make such a case

against one employer, the presumption should not apply

against that employer.

[3] Additionally, removing the § 20(a) presumption from

the determination of the liable employer, as the Board held,

threatens to violate § 7(c) of the Administrative Procedure

Act (“APA”). APA § 7(c) states that, “[e]xcept as otherwise

provided by statute, the proponent of a rule or order has the

burden of proof.” 5 U.S.C. § 556(d). The Supreme Court has

held that APA § 7(c) applies to adjudications under the

LHWCA. Dir., OWCP v. Greenwich Collieries, 512 U.S. 267

(1994). Under the rule in Greenwich Collieries, the § 20(a)

presumption is a legitimate statutory exception to APA § 7(c),

but the “true doubt” rule previously applied by the Director,

ALBINA ENGINE & MACHINE v. OWCP 19865

which shifted the burden of persuasion to the party opposing

a benefits claim even when the § 20(a) presumption did not

apply, violated APA § 7(c). Id. at 269, 280. The Board in this

case held that each employer bears a burden of proof in the

determination of liability in a multi-employer suit. McAllister

III at 4. But it is unclear where that burden of proof can come

from if not the § 20(a) presumption. If the burden is imposed

other than pursuant to statute, it is invalid under APA § 7(c)

and Greenwich Collieries.2

This and other courts have relied on § 20(a) to reach the

conclusion as to which of several employers is liable for

LHWCA benefits. See Ramey, 134 F.3d at 959-60 (applying

a § 20(a) analysis to the question of whether the claimant had

proved that he was exposed to injurious stimuli while working

at a particular employer, where the parties agreed that the

claimant’s claim was compensable); Norfolk Shipbuilding &

Drydock Corp. v. Faulk, 228 F.3d 378, 385 (4th Cir. 2000)

(determining which of two potentially responsible employers

is liable for payment of benefits through an analysis derived

from § 20(a)).

The Board cites Marinette Marine Corp. v. Dir., OWCP,

431 F.3d 1032, 1035 (7th Cir. 2005), as support for its asser-

tion that § 20(a) applies only to the claim, and not to individ-

ual employers. The Board itself has also previously so held.

2

The Director agrees with the Board’s interpretation of the law on this

point. The Director acknowledges that APA § 7(c) applies but asserts that

this interpretation does not run afoul of it, because “each employer is, in

its turn, the proponent of a rule or order that it is not the responsible

employer.” For this proposition, the Director cites by analogy to Nat’l

Mining Ass’n v. Dep’t of Labor, 292 F.3d 849 (D.C. Cir. 2002). But Nat’l

Mining Ass’n, which concerns burden-shifting under the Black Lung Ben-

efits Act, holds specifically that an employer may be considered to be the

proponent of a rule or order that it is not the responsible employer only

if the “claimant has already carried his burden of proving that an operator

is liable.” Id. at 872. In other words, there must be a legitimate statutory

shifting of the burden of proof, such as that which occurs under § 20(a),

to support the placement of a burden of proof on a given employer.

19866 ALBINA ENGINE & MACHINE v. OWCP

See Buchanan v. Int’l Transp. Serv., 1999 WL 197777, at *4

(DOL Ben. Rev. Bd., March 26, 1999); Lins v. Ingalls Ship-

building, Inc., 1992 WL 213839 (DOL Ben. Rev. Bd., Aug.

18, 1992), at *2; Susoeff v. S.F. Stevedoring Co., 1986 WL

66392, at *2 n.2 (DOL Ben. Rev. Bd., Nov. 28, 1986). How-

ever, the Board’s interpretation of the proper application of

§ 20(a) did not determine the outcome in those prior holdings.

In Buchanan, there was no question as to whether the claim-

ant had sustained an injury in the employ of all employer par-

ties. Buchanan, 1999 WL 197777, at *4. Lins concerned an

attempt by one employer to invoke the § 20(a) presumption

against a subsequent employer where the claimant had not

filed a claim against that subsequent employer; the Board

rightly rejected that attempt. Lins, 1992 WL 213839, at *2. In

Susoeff, only one employer was claimed against, and the key

issue was whether it was the claimant’s burden to show that

the employer against whom a claim was filed was the last

responsible employer. Susoeff, 1986 WL 66392, at *2. As for

Marinette Marine Corp., we respectfully disagree with the its

holding on the application of the § 20(a) presumption. The

Seventh Circuit cites only Buchanan in support of its holding

and does not cite or discuss Greenwich Collieries on this

issue.

2. Rational Connection Rule

Albina also argues that the imposition of a burden of proof

on all employers violates the so-called “rational connection”

rule of this court, which states that liability may not be

assigned to an “employer who could not, even theoretically,

have contributed to the causation of the disability.” Ronne,

932 F.2d at 841; see also Cordero, 580 F.2d at 1336. That

objection would be valid only if a burden of proof is imposed

on all employers based on evidence relevant only to one. ALJ

Mapes did apply the § 20(a) presumption in that way in his

second opinion (reluctantly), as he believed that this was what

the Board called for in McAllister I, but that application was

in error and, in any event, was reversed in McAllister II. The

ALBINA ENGINE & MACHINE v. OWCP 19867

application of the presumption described above, in which the

presumption is imposed only on employers with respect to

whom the claimant offers some evidence, does not threaten

any violation of the “rational connection” rule.

C. Last Employer Rule

Albina also argues that the Board erred by holding that the

burden of each employer to persuade the ALJ that it is not lia-

ble “is not sequential . . . [but] is simultaneous,” and that the

Board should “weigh all of the evidence” regarding all of the

employers in one analysis. McAllister II at 9. Albina asserts

that the evidence regarding each employer should have been

analyzed sequentially instead, with the most recent employer

analyzed first, and with liability assigned to the first-analyzed

employer to be found responsible for exposing Decedent to

asbestos.

[4] Albina’s position is that a sequential analysis is the cor-

rect application of the “last employer” rule. The last employer

rule dictates that “the employer during the last employment in

which the claimant was exposed to injurious stimuli . . .

should be liable for the full amount of the award.” Travelers

Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955). That

rule was first applied by this court in Cordero, 580 F.2d at

1336, and has been reiterated in a number of our other deci-

sions. See Ronne, 932 F.2d at 840; Picinich, 914 F.2d at 1319;

Lustig v. U.S. Dep’t of Labor, 881 F.2d 593, 596 (9th Cir.

1989); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284

(9th Cir. 1983). The last employer rule is justified by the pol-

icy consideration of “administrative convenience” and by the

theoretical likelihood that “all employers will be the last

employer a proportionate share of the time.” Cordero, 580

F.2d at 1336.

[5] The Director agrees with Albina that the correct way to

apply the last employer rule is to analyze the evidence regard-

ing each employer separately and sequentially. The Director

19868 ALBINA ENGINE & MACHINE v. OWCP

argues that “[i]mposing simultaneous burdens results in

uncertainty and confusion, and may lead to anomalous or

inconsistent results,” and that, if the Board’s simultaneous-

analysis approach is adopted, “it is unclear who bears the risk

of non-persuasion between any two potentially liable employ-

ers.” This court accords considerable deference to the Direc-

tor’s interpretations of the LHWCA. Gen. Ship Serv. v. Dir.,

OWCP, 938 F.2d 960, 962 (9th Cir. 1991); Manowski, 867

F.2d at 555. When the interpretations of the Director and the

Board conflict, we favor those of the Director. Ronne, 932

F.2d at 838-39; McDonald v. Dir., OWCP, 897 F.2d 1510,

1512 (9th Cir. 1990).

[6] The policy arguments for the sequential analysis are

also compelling. The point of the last employer rule is to sim-

plify the ALJ’s analytical task (and the task of the Board and

the courts in reviewing the ALJ’s analysis) so that a claimant

may receive benefits quickly. The sequential approach accom-

plishes this goal, because it establishes clearly which of the

potentially liable employers bears the burden of proof and

because, if the last employer claimed against is determined to

be a responsible employer, the ALJ need not analyze the evi-

dence regarding earlier employers. In contrast, a simultaneous

analysis runs the risk of engaging the ALJ in irrelevant ques-

tions, such as (to use examples drawn from this case) whether

“the evidence of exposure at Albina is far greater than at

Lockheed” or whether “the evidence of asbestos exposure at

Albina is not as strong as at WISCO.” As the Director points

out, the sequential approach also makes it easier for a poten-

tial employer to anticipate its potential liability, based on its

position in the sequence. See Tahara v. Matson Terminals,

Inc., 511 F.3d 950, 954 (9th Cir. 2007) (“The compensation

scheme set forth in the LHWCA recognizes . . . ‘the employ-

ers’ interest in having their contingent liabilities identified as

precisely and as early as possible.’ ”) (quoting Potomac Elec.

Power Co. v. Dir., OWCP, 449 U.S. 268, 282 (1980)). We

conclude that the Board erred in adopting a simultaneous

analysis approach.

ALBINA ENGINE & MACHINE v. OWCP 19869

Lockheed contends that the sequential approach would con-

vert the last employer rule “from administrative to evidenti-

ary; from a rule grounded in convenience and speed of

recovery to one of narrowly focused burdens.” We are not

persuaded. A sequential analysis does not affect the burdens

of proof already in place. As Lockheed admits, once the

§ 20(a) presumption is established, “all potentially responsi-

ble employers have a burden to disprove liability.” A sequen-

tial analysis merely relieves the ALJ of the trouble of

formulating a reasoned opinion regarding whether earlier

employers have disproved liability if a later employer has

failed to do so.

The Board relies on Picinich as support for its position that

the analysis should be simultaneous, not sequential. In

Picinich, this court overturned a decision of the Board assign-

ing liability to a last-in-time employer at which the claimant

had been exposed only to “minimal” quantities of asbestos,

and assigned liability instead to the earlier employer. Picinich,

914 F.2d at 1318. The crux of that case, however, was not the

mode of analysis, but instead whether or not an employer may

be found liable if it was not found responsible, i.e., if the

employee was not even exposed by that employer to injurious

stimuli in sufficient quantities to cause harm. Id. at 1320. The

sequential-analysis approach in no way removes basic causa-

tion from the inquiry as to whether the last employer is poten-

tially responsible.

The Board also relies on its earlier decision in Buchanan,

1999 WL 19777, that we affirmed in Int’l Transp. Servs. v.

Kaiser Permanente Hosp., Inc., 7 F. App’x 547 (9th Cir.

2001) (mem.). The Board asserts that Buchanan supports a

simultaneous analysis. But Buchanan dealt with the allocation

of liability in a two-employer case involving a traumatic

injury, not an occupational disease, as here. What this court

in Int’l Transp. Servs. calls “the ‘last employer’ rule or

‘aggravation’ rule”, id. at 549, is actually a different test from

the last employer rule applied in occupational disease cases.

19870 ALBINA ENGINE & MACHINE v. OWCP

See Found. Constructors, Inc. v. Dir., OWCP, 950 F.2d 621,

624 (9th Cir. 1991). The rule applied in injury or cumulative

trauma cases involves an analysis of whether the claimant’s

disability is the result of a natural progression of an injury that

occurred at an earlier employer, or was aggravated or acceler-

ated by conditions at a later employer. Id.; Kelaita v. Dir.,

OWCP, 799 F.2d 1308, 1311 (9th Cir. 1986). It would be irra-

tional to attempt such an analysis without consideration of the

evidence regarding working conditions at both employers, and

thus a simultaneous analysis is called for in injury cases. That

rationale does not extend to occupational disease cases, how-

ever.

[7] Therefore, the ALJ in multiple-employer occupational

disease cases should conduct a sequential analysis, as follows:

the ALJ should consider sequentially, starting with the last

employer, (1) whether the § 20(a) presumption has been

invoked successfully against that employer, (2) whether that

employer has presented substantial, specific and comprehen-

sive evidence so as to rebut the § 20(a) presumption, see

Ramey, 134 F.3d at 959,3 and (3) if the answer to the second

question is yes, whether a preponderance of the evidence sup-

ports a finding that that employer is responsible for the claim-

ant’s injury, see Volpe, 671 F.2d at 700. The first employer

in the analytical sequence (that is, the last employer in time)

who is found to be responsible under this analysis shall be lia-

ble for payment of benefits, and the ALJ need not continue

3

The presumption may be rebutted not only with substantial evidence

that the claimant was not harmed by injurious stimuli at that employer, but

also with substantial evidence that the claimant was exposed to injurious

stimuli at a subsequent covered employer. See Bath Iron Works, 194 F.3d

at 5-6. As a practical matter, though, in the sequential analysis described

here, the latter method of rebuttal is likely to be available only to an

employer who seeks to show that a covered employer who is not claimed

against in that proceeding is actually responsible for the claimant’s injury,

because, if substantial evidence exists of exposure by a later employer

who is part of the same proceeding, then the analysis probably would have

stopped at that later employer.

ALBINA ENGINE & MACHINE v. OWCP 19871

with this analysis for the remaining employers. In conducting

this analysis, the ALJ should consider all evidence regarding

exposure or lack thereof at a particular employer, and evi-

dence supporting a finding of exposure at a given employer

may be submitted either by the claimant or by earlier employ-

ers.

It should be noted that the analysis prescribed here is

intended only as a sequential mode of analyzing relevant evi-

dence. It is not intended to dictate the order of proof or any

other aspect of the ALJ’s management of the case. The gov-

erning regulations give the ALJ ample discretion to structure

the hearing and order the proof in a manner the ALJ deems

most efficient in light of all of the parties, the issues, and the

evidence. See 20 C.F.R. §§ 702.338, 702.339, 702.343,

702.345, 702.347. Thus the sequential methodology of ana-

lyzing the evidence should not impinge upon the ALJ’s con-

duct and control of the case.

The Director advocates a somewhat different approach to

the sequential analysis, calling for a rule that “each employer

must disprove its liability by a preponderance of the evi-

dence.” While we owe deference to the views of the Director,

we do not adopt the Director’s approach on this issue,

because, as is discussed above, the Director’s brief does not

sufficiently account for APA § 7(c). The “preponderance of

the evidence” standard the Director advocates imposes on

each employer a burden of proof other than that created by

§ 20(a), which is not permitted under Greenwich Collieries.

D. Liable Employer

[8] In ALJ Mapes’ first decision, he applied an analysis

similar to the one we set out above. ALJ Mapes found that

Claimant had met the § 20(a) “some evidence” standard

against Lockheed, the last employer in the proceeding, and

that Lockheed had failed to rebut the § 20(a) presumption,

because Lockheed had not provided any contrary evidence.

19872 ALBINA ENGINE & MACHINE v. OWCP

ALJ Mapes then concluded that Lockheed was the responsible

employer.

[9] Our own analysis yields the same conclusion. Claimant

did submit some admissible evidence of asbestos exposure at

Lockheed: (1) a deposition statement from George Norgaard,

a former employee of Owens-Corning Fiberglass, that Owens-

Corning stored asbestos-containing materials at Lockheed’s

shipyard during the period when Decedent worked there and

that at times workers for Owens-Corning installed pipe insula-

tion containing asbestos on ships being constructed in Lock-

heed’s yard; (2) testimony from Decedent’s first wife that he

used to come home from work at Lockheed’s shipyard with

dusty clothes; (3) testimony from a Dr. Zbinden describing

statements that Decedent made to Claimant and Dr. Zbinden

regarding his asbestos exposure; and (4) testimony from

Claimant regarding statements made by Decedent. Norgaard’s

deposition does not conclusively establish that Decedent

worked around asbestos at Lockheed, but it does constitute

reasonable circumstantial evidence of exposure: Norgaard

describes the installation of asbestos-containing materials by

Owens-Corning employees on ships being constructed in

shipyards, including Lockheed’s, beginning in 1957, and also

notes that members of “almost all” other crafts (presumably

including carpentry, Decedent’s craft) were in the vicinity

when these materials were being installed.4

ALJ Berlin also found that Dr. Zbinden’s and Claimant’s

testimony only establishes that the Decedent thought he was

exposed to asbestos in his shipyard employment in general,

and not that Decedent specifically thought he was exposed at

Lockheed. But in cross-examination at the hearing before ALJ

Mapes in 2004, Claimant in fact stated that Decedent did

4

ALJ Berlin correctly points out that Norgaard admitted that Owens-

Corning did little or no installation work on destroyers at Lockheed’s yard

for a period of time, but that period was 1965 to 1970, not the period of

Decedent’s employment.

ALBINA ENGINE & MACHINE v. OWCP 19873

name Lockheed (not by name, but as “some employer” in

Seattle for whom he worked for two years) as one of three

places where he was exposed to asbestos. The Board mis-

takenly dismissed these statements as “not proof of expo-

sure.” In fact, they do constitute evidence sufficient to invoke

the § 20(a) presumption under the standard previously applied

by this court. See Ramey, 134 F.3d at 960.

[10] Lockheed, on the other hand, did not submit any evi-

dence, let alone substantial evidence, to rebut the evidence

against it. As the last (most recent) employer to fail to rebut

the § 20(a) presumption, it is liable for payment of benefits.

III. CONCLUSION

The Board erred in holding: (1) that the § 20(a) presump-

tion is irrelevant to the question of liability in a multi-

employer case; (2) that each employer must show by a pre-

ponderance of the evidence that it is not the last responsible

employer; and (3) that the evidence regarding each employer

should be analyzed simultaneously. We hold that in LHWCA

occupational disease cases involving multiple employers: (1)

the § 20(a) presumption must be invoked against each

employer before that employer may be found liable for pay-

ment of benefits; (2) each employer may rebut the § 20(a)

presumption with substantial evidence that it is not the last

responsible employer; (3) once an employer has rebutted the

§ 20(a) presumption, it may be found liable only if a prepon-

derance of the evidence supports a finding that that employer

is responsible; and (4) the analysis with respect to each

employer shall be applied sequentially, beginning with the

last (most recent) employer, and need not be conducted for

earlier employers once a responsible employer is found. Both

the first decision of ALJ Mapes and our review of the evi-

dence confirm that, under the analysis we adopt here, Lock-

heed is the last responsible employer and is liable for the

payment of benefits.

19874 ALBINA ENGINE & MACHINE v. OWCP

The petition for review is GRANTED and the judgment of

the Board is REVERSED.