Petition — E-Systems, Inc. v. Director, Office of Workers' Compensation Programs
Supreme Court brief1983
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AUG 30 1983
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
E-Systems, INC...
and
LIBERTY MUTUAL INSURANCE COMPANY.
Petitioners,
wa
DireECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR.
and
HowarD R. CLYMER.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
Davip W. TOWNEND
DeHay & BLANCHARD
2300 South Tower
Plaza of the Americas
Dallas, Texas 75201
(214) 651-7000
Attorney for Petitioners
i
QUESTIONS PRESENTED
1. Whether there is any statutory requirement under the
Longshoremen’s and Harbor Workers’ Compensation Act for a
claimant. who is permitted to recover on 4 theory that the
employment conditions of diet and climate aggravated pre-
existing diabetes and hypertension, to prove the occurrence of an
accidental injury or occupational illness which arose out of and
was caused by the employment. (33 U.S.C. §902(2)).
> Whether the statutory presumption under 33 U.S.
§920(a) can properly be applied in the claimant's favor. when
there was substantial evidence of record before the Court below
to rebut the statutory presumption and affirm the findings of the
Administrative Law Judge and Benefits Review Board that the
claimant's diabetes and hypertension did not arise from and were
not caused by the employment and that the claimant failed to
prove disability.
3. Whether the Court of Appeals may permit recovery based
upon a claim of aggravation of pre-existing hypertension and
diabetes when such claim was not asserted by the claimant who
contended an occupational illness under the Act which was
denied by the Administrative Law Judge and Benefits Review
Board. (33 U.S.C. §902(2)).
4. Whether the Court of Appeals erred in reversing the
findings and decision of the Administrative Law Judge that the
claim under ihe Longshoremen’s and Harbor Workers’
Compensation Act was barred by the failure to comply with the
thirty (30) day notice requirement and one year statute of
limitations requirement under the Act, 33 U.S.C. §§912(a).
913(a).
il
PARTIES BELOW
In the Court below. the Petitioners were Respondents. The
Respondent Howard Clymer was Petitioner in the Court below
and Respondent Director, Office of Workers’ Compensation
Programs, United States Department of Labor, was Respondent
in the Court below.
see
TABLE OF CONTENTS
Page
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OPINIONS AND JUDGMENT BELOW ..........0ccccccccccsecsccccccceces 2
NEI so ec tcsicsecdtstas vata nakninirisivcieiinadsistineiaasbens 2
TT OR FI I inc cls calba vances deasecassesecnee ss aeseuieeinierees 2
SPRAIN IE TIE Go i diced sd nuanadovscsracsqeavuveinacciecsonay es 5
REASONS FOR GRANTING THE WRIT...........cscccscsescseessesceces 9
1. The decision of the Court of Appeals for the Fifth
Circuit below is in direct conflict with the rule of
law of U.S. Industries / Federal Sheet Metal, Inc.
v. Director, Office of Workers’ Compensation
Programs, United States Department of Labor,
U.S. 5 He eats LSA CR eh hsivssasesisnces 9
Il. The Court of Appeals for the Fifth Circuit has
decided an important federal question which has
not been, but should be, settled by this Court........ 12
III. To insure the proper scope of judicial review in
accordance with established Supreme Court
MSM 5s 21's) £icis4s Gracksbthssaunseatlbaeti cieiassasniaverene 15
ars ET” RRR a Pa SRS eyo 0 DATE Ts Wo rae aR CPLA SCRE Oh ETE 16
APPENDIX A — Court of Appeals Decision Denying
Petition for Rehearing and Suggestion for Rehearing En
UNE oie cacedds «snus acsteleb orotic dees uialcsmntaniboidadehtieies A-|
APPENDIX B— Court of Appeals Decision ..............000000008 B- |
APPENDIX C — Benefits Review Board Decision................ C-|
APPENDIX D — Administrative Law Judge’s Decision........ D-|
APPENDIX E — Form LS/203 Claim for Compensation...... E-1
iv
TABLE OF AUTHORITIES
Page
CASES:
American Stevedores, Inc. v. Salzano, 538 F.2d 933
ae iis CTE catascadcdhiees capssana hedededeakdacinpensticasteebedvenss 14
Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459
RIED sisaeha/ts CalcrawanVoukdes peasashadaans< clbuveetousdcscaccubonsnacbes 12
Del Vecchio v. Bowers, 296 U.S. 280 (1935) .......ccccccceeeees 14
Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003
ce SR AERIS Es NUD AP ee ae 12,14
Grain Handling Co. v. Sweeney, 102 F.2d 464
(2d Cir. 1939), cert. denied, 308 U.S. 70.............:c0c000s 11,13
Groom v. Cardillo, 119 F.2d 697 (D.C. Cir. 1941)....0....... 13
Hoage v. Employers Liability Assurance Corp.,
ese Fhe Cts ie BOP inva sdksns caseciatecsdicsdorsccece cous 1}
John W. McGrath Corp. v. Hughes, 289 F.2d 403
Sa is BUI D deh oid tach tase unmcasavanserdeocad eioieesoscareckes 13
Newport News Shipbuilding & Drydock Co. v. Director,
Office of Workers’ Compensation Programs, United
States Department of Labor, 583 F.2d 1273 (4th Cir.
1978), cert. denied 440 U.S. 915 (1979)... oc cceeccee sees 13
O'Keefe v. Smith, Hinchman & Grylls Associates,
SNE re aia tha ganesh es oes cs Sed wovigteuumebbcubbns 12
Perini Corp. v. Heyde, 306 F.Supp. 132 (D.R.1. 1969) .... 13,14
South Chicago Coal & Dock Co. v. Bassett, 104 F.2d
522 (7th Cir. 1939), aff'd, 309 U.S. 251 (1940)... 13
Southern Stevedoring Co. v. Henderson, 175 F.2d
Pe SNE ils PII ek csrsetiicstes pposiachemen blesdenwicuteroresibons 10,11
Vv
TABLE OF AUTHORITIES (Continued)
Stark v. Lockheed Shipbuilding Co., 5 B.R.B.S. 186
Rae POOR, Foe CHPOG: Bg OPP kde tneeinckcnccnsuncnicudenams 15
U.S. Industries/ Federal Sheet Metal, Inc. v. Director,
Office of Workers’ Compensation Programs,
United States Department of Labor,
U.S. 5 WE BUSES CIR Eh av cnensccisns 9,10,11,13,14
STATUTES:
District of Columbia Workers’ Compensation Act:
Fe Oa re ONG incnadcosncdusnccevecsseanssss senses 12
Longshoremen’s & Harbor Workers’ Compensation
Act: 33 U.S.C. §901, et. seq., as extended by the Defense
Fe a Ar eB os cnsenensisvcncekeaipssunavaipuncaciiens 2,12
Non-Apportioned Fund Instrumentalities Act:
Face FUME FD scacsassenstaceetonsicennhdbarideiaatmaaie 12
Outer Continental Shelf Lands Act: 43 U.S.C.
EEF BORED cikccecaloninnndincanvacscasterivicnigsbdeshidiiaessieaiaee 12
No.
IN THE
Supreme Court of the United States
OcTOBER TERM, 1983
E-SYSTEMS, INC.,
and
LiIBFRTY MUTUAL INSURANCE COMPANY,
Petitioners,
wy
Director, Orrice OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
and
HowarD R. CLYMER,
Respondents.
PE1iTION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
Petitioners, E-SYSTEMS and LIBERTY MUTUAL
INSURANCE COMPANY respectfully pray that a Writ of
Certiorari issue to review the judgment and opinion of the United
States Court of Appeals for the Fifth Circuit in this case.
2
OPINIONS AND JUDGMENT BELOW
The decision of the Court of Appeals, denying the Petition for
Rehearing and Suggestion for Rehearing En Banc dated June 14,
1983 is set forth as Appendix A hereto. The Court of Appeals
decision of December 2, 1982 is unreported and is attached
hereto as Appendix B. The decision of the Benefits Review Board
with dissent is set forth as Appendix C hereto. The decision of
the Administrative Law Judge is attached hereto as Appendix D.
The form LS/203 claim for compensation is attached hereto as
Appendix E.
JURISDICTION
The decision of the Court of Appeals was entered on
December 2, 1982. The Order of the Court of Appeals denying
the Petition for Rehearing and Suggestion for Rehearing En
Banc was entered on June 14, 1983. Jurisdiction of this Court is
invoked under 28 U.S.C. §1254(1).
STATUTES INVOLVED
United States Code, Title 33
Longshoremen’s and Harbor Workers’ Compensation Act, 33
U.S.C. §901, as extended by the Defense Base Act, 42 U.S.C.
§1651.
§902. Definitions
When used in this chapter —
-* & *&
(2) The term “injury” means accidental injury or death
arising out of and in the course of employment, and such
occupational disease or infection as arises out of such
3
employment or as naturally or unavoidably results from such
accidental injury and includes any injury caused by the willful
act of a third person directed against an employee because of
his employment.
(10) Disability means incapacity because of injury to earn
the wages which the employee was receiving at the time of
injury in the same or any other employment.
§903. Coverage
(a) Compensation shall be payable under this chapter in
respect of disability or death of an employee, but only if the
disability or death results from an injury....
§912. Notice of Injury or Death
(a) Notice of an injury or death in respect of which
compensation is payable under this chapter shall be given
within thirty (30) days after the date of such injury or death, or
thirty (30) days after the employee or beneficiary is aware or
in the exercise of reasonable diligence should have been aware
of a relationship between the injury or death and the
employment. Such notice shall be given (1) to the deputy
commissioner in the compensation district in which the injury
occurred, and (2) to the employer.
§913. Filing of Claims
(a) Except as otherwise provided in this section, the right to
compensation for disability or death under this chapter shall
be barred unless a claim therefore is filed within one year after
the injury or death. If payment of compensation has been
made without an award on account of such injury or death, a
4
claim may be filed within one year after the date of the last
payment. Such claim shall be filed with the deputy
commissioner in the compensation district in which such
injury or death occurred. The time for filing a claim shall not
begin to run until the employee or beneficiary is aware, or by
the exercise of reasonable diligence should have been aware, of
the relationship between the injury or death and the
employment.
§920. Presumption
In any proceeding for the enforcement of a claim for
compensation under this chapter it shall be presumed, in the
absence of substantial evidence to the contrary —
(a) That the claim comes within the provision of this
chapter.
(b) That sufficient notice of such claim has been given.
(c) That the injury was not occasioned solely by the
intoxication of the injured employee.
(d) That the injury was not occasioned by the willful
intention of the injured employee to injure or kill himself or
another.
§921. Review of Compensation Orders
*“* * *
(b)(3) The Board shall be authorized to hear and determine
appeals raising a substantial question of law or fact taken by
any party in interest from decisions with respect to claims of
employees under this chapter and the extensions thereof. The
Board's orders shall be based upon the hearing record. The
findings of fact and the decision under review by the Board
shall be conclusive if supported by substantial evidence and the
Record considered as a whole.
rs
STATEMENT OF THE CASE
This is an occupational illness case — it being claimed that
diet and climate caused, or in the alternative aggravated a pre-
existing condition so as to cause, hypertension and diabetes.
Under its contract with the United States Government, in
1976 E-Systems was constructing the Sinai Field Mission in the
Sinai. The weather in the Sinai was described as similar to
Dallas, Texas and the housing facilities were heated and air
conditioned. The meals were American style and were served in a
cafeteria and the employees were free to eat whatever they chose,
however, E-Systems did accommodate special diet requests and
some employees cooked their own food.
Mr. Clymer arrived at the Sinai Field Mission in late June,
1976 as a heating and air conditioning mechanic and worked six
days a week for three weeks and was then given one week of rest
and recuperation (R & R). Mr. Clymer testified he started
feeling exhausted and having headaches in August of 1976, and
on December 7, 1976 he complained of numbness in his right leg,
right arm and right side of his face and reported nausea and was
given pills at the dispensary. He was hospitalized by Israeli
doctors for one week in December, 1976, and released to his
regular duties with no restrictions. He had a recurrence of these
complaints in late spring of 1977 while at a Tel Aviv hotel on
R & R, but did not see any doctors and had a similar attack
again while on R&R in Tel Aviv while shopping in a
department store on or about January 29, 1978. He was
hospitalized in late January or early February of 1978 for
approximately twelve (12) days and while the doctors felt he
could return to work initially for half days Mr. Clymer decided
to return to the United States to be examined by his own doctor.
The Israeli doctor's report of February 9, 1978 regarding his
hospitalization in Israel notes (1) essential hypertension, (2)
strain of myocardium, and (3) cirrhosis of the liver and that Mr.
Clymer was overweight and should stop drinking.
6
On or about April 13 or 14, 1978 Mr. Clymer first reported to
his employer he had sustained an occupational illness, i.e.,
hypertension and diabetes while employed in the Sinai because of
diet and weather. His claim for compensation based on an
occupational illness (Form LS/203), dated August 16, 1978 was
received by the Office of Workers’ Compensation Programs—
Houston on August 21, 1978. At no time did Mr. Clymer claim
an aggravation of a pre-existing condition and in fact his claim
for compensation stated that prior to his employment in Israel he
was in good health. (See Appendix E.)
To support his claim of an occupational illness, to wit,
hypertension and diabetes caused by diet and climate, at the
hearing before the Administrative Law Judge (A.L.J.) Mr.
Clymer submitted reports of Dr. Dunn. In his report of April 13,
1978, Dr. Dunn noted hypertension and possible diabetes and in
a report of July 18, 1978 he notes that his hypertension and
diabetes are controlled by diet and oral medication and he could
be considered employable if a neurological evaluation proved
negative. A subsequent neurological evaluation by Dr. Black
indeed proved negative. In his report of August 7, 1978 Dr. Dunn
expressed that the intermittent high blood pressure or
hypertension was mostly normal, the diabetes mellitus should be
totally controlled by diet and the episodes of numbness may be
due to transient ischemic attacks, however, further evaluation
was necessary. (See Appendix D.)
Petitioners offered as a witness at the hearing before the
A.L.J., Dr. Robert L. North, Chief of Internal Medicine at
Presbyterian Hospital in Dallas, Texas and a Board certified
specialist in cardiovascular and internal medicine who had been
practicing medicine since 1955. He not only examined Mr.
Clymer but reviewed his medical history, and the examination
proved essentially normal. Dr. North referred Mr. Clymer to Dr.
Black for a neurological evaluation including a brain scan which
proved normal. Dr. North conducted blood sugar tests, and
obtained the results of glucose tolerance tests and blood pressure
readings from Dr. Dunn, and further reviewed Dr. Spitzberg’s
stress test which proved negative. Dr. North testified that his
impression was that Mr. Clymer had some venous insufficiency
and intermittent elevations of blood pressure and mild diabetes
which were both controlled by diet and there was no organic
explanation or basis for his complaints. He testified that Mr.
Clymer’s intermittent hypertension and mild diabetes were not
job related or caused by the diet or climate, as claimed by Mr.
Clymer, and that there was no physical impairment which would
preclude his returning to employment; that diabetes is an
abnormality in sugar metabolism most likely due to an
insufficiency in the secretion of insulin and is most probably
inherited; that hypertension and diabetes were common in a man
of his age; that neither the geographic location, occupation or
diet with E-Systems had anything to do with these conditions;
that if Mr. Clymer stayed in Texas and ate the same diet, in all
likelihood he would have developed the same problems; that
diabetes is not caused by the diet, and that exercise is good for
one with diabetes. (See Appendix D.) There was evidence of
some intoxication on the part of Mr. Clymer during his
employment and Dr. North testified that excessive consumption
of alcohol, just like obesity and age were factors which could
contribute to hypertension or diabetes. He testified that diet or
enviromrmental factors may aggravate or have an effect upon
diabetes or hypertension, but after extensive cross-examination,
Dr. North stated that “there is no basis in medical probability
that such conditions as heat, perspiration, the specific diet would
be causes for ... hypertension or diabetes;” that “the location,
the climate [i.e., the Sinai] . . . are purely accidental in this case
and had he remained in South Texas and that had he been given
the same diet, the same ... problems with the IRS, however
much he drank drinking the same, he would have developed the
same problems at the same time. In that respect it is his destiny.”
Dr. North concluded that “... the geographic location and
occupation in my opinion have nothing to do with the appearance
of high blood pressure or diabetes mellitus in this case. . . .” (See
Appendix D.)
8
The case was tried before the Honorable David W. DiNardi,
an Administrative Law Judge (A.L.J.) who found as a fact that
Mr. Clymer had failed to prove an accidental injury or
occupational illness caused by the employment under 33 U.S.C.
§902(2). (See, Appendix D.) The A.L.J. also found as a fact that
Mr. Clymer had failed to prove that he had sustained any
disability, and that his claim was barred by failure to give his
employer notice of the claim within thirty (30) days and failure to
file his claim for compensation within one year from the date he
knew or should have known that his problem was work related.
(See, Appendix D.) The decision of the A.L.J. was affirmed by
the Benefits Review Board, primarily upon the lack of a causal
connection between the employment and the alleged
occupational illness. (See Appendix C.) The Court of Appeals for
the Fifth Circuit reversed the decisions of the Benefits Review
Board and A.L.J., asserting that the A.L.J.’s decision was
contrary to law because notwithstanding the A.L.J.'s finding of a
lack of causal connection between the employment and the
occupational illness, causality is not a necessary element in an
aggravation case. The Court of Appeals held that although the
A.L.J. accepted the testimony of Dr. North that Mr. Clymer's
hypertension and diabetes were not caused by the employment.
nevertheless since Dr. North testified that diet and environment
may aggravate these conditions, this was sufficient to establish
an aggravation of a pre-existing condition and thus a
compensable condition under the Act. (See Appendix B.) The
Court of Appeals also reversed the findings of the A.L.J. that the
claimant failed to prove disability, reasoning that the Emp.over
had not sufficiently established a lack of disability. Finally, the
Court of Appeals reversed the A.L.J.’s decision that Mr.
Clymer’s claim was barred by failure to comply with the thirty
(30) day notice and one year statute of limitations filing
requirements under §§912a and 913a of the Act.
9
REASONS FOR GRANTING THE WRIT
I.
The Decision of the Court of Appeals for the Fifth Circuit Below
is in Direct Conflict with the Rule of Law of U.S.
Industries/ Federal Sheet Metal, Inc. v. Director, Office of
Workers’ Compensation Programs, United States Department
of Labor, U.S. , 102 S.Ct. 1312 (1982)
The lower Court has implicity held that in an aggravation case
a claimant is not required to prove that he sustained an
accidental injury or occupational illness which arose out of and
was caused by the employment, it being sufficient to be
compensable if any condition of the employment had any
aggravating effect on the diabetes and hypertension.
This holding of the lower Court of Appeals that causation is
not a necessary requirement is contrary to the specific wording of
the Act as well as this Honorable Court's decision in U.S.
Industries/ Federal Sheet Metal, Inc. v. Director. Office of
Workers’ Compensation Programs, United States Department
of Labor, U.S. . 102 S.Ct. 1312 (1982), which
held:
“Section 3(a) provides that ‘[(C]ompensation shall be payable
only under [the Act] in respect of disability ... of an
employee, but only if the disability . . . results from an injury’.
33 U.S.C. §903(a). Injury is defined as an ‘accidental injury
... arising out of and in the course of employment °. §902(2).
Arising ‘out of* and ‘in the course of employment are
separate elements: the former refers to injury causation; the
latter refers to the time, place,and circumstances of the injury.
Not only must the injury have been caused by the
employment, it must also have arisen during the
employment.” (Emphasis added.)
10
This case was decided after oral argument in the Court below
and is not cited in the Fifth Circuit's opinion. The Court of
Appeals does not appear to disturb the findings of a lack of
causal connection between the employment and the illness. but
has erased the requirement of a casual connection between the
employment and the condition in an aggravation case. While Dr.
North did not deny that it was possible that conditions such as
heat and diet could have an effect upon diabetes and
hypertension, Dr. North testified that “there is no basis in
medical probability that such conditions as heat. perspiration,
the specific diet would be causes for ... hypertension or
diabetes” that “the location, the climate ... are purely
accidental in this case and had he remained in South Texas and
that had he been given the same diet, the same... problems with
the IRS, however much he drank drinking the same, he would
have developed the same problems at the same time. In that
respect it is his destiny.’ Dr. North concluded that “... the
geographic |. cation and occupation in my opinion have nothing
to do with the appearance of high blood pressure or diabetes
mellitus in this case... .””
The A.L.J. accepted this testimony of Dr. North, and the
Benefits Review Board affirmed. Nevertheless, the lower Court
of Appeals placing exaggerated emphasis upon the doctor's use
of the word aggravation substituted its own judgment for that of
the Benefits Review Board and the A.L.J. and found that Mr.
Clymer had established that his employment had aggravated his
condition and it was therefore compensable. Indeed, prior Fifth
Circuit holdings have held that there is no requirement of proof
of a causal connection between the employment and the injury,
Southern Stevedoring & Co. v. Henderson, 175 F.2d 863. 866
(Sth Cir. 1949), which was inferentially overruled by the recent
pronouncement by the United States Supreme Court in U. S.
Industries/Federal Sheet Metal, Inc. y. Director, Office of
Workers’ Compensation Programs, United States Department
of Labor, supra.
The term “injury” under the Act has traditionally covered
three types of incidents: First, an unexpected event which causes
damage or harm to the physical body, such as a fall, Southern
Stevedoring & Co. v. Henderson, 175 F.2d 863 (Sth Cir. 1949);
an accidental injury which aggravates a pre-existing condition
and combines with it so as to cause the new condition, Hoage v.
Employers Liability Assurance Corp., 64 F.2d 715 (D.C. Cir.
1933); or an occupational illness which means an illness caused
by hazards peculiar to the employment, Grain Handling Co. v.
Sweeney, 102 F.2d 464 (2d Cir. 1939), cert. denied, 308 U.S. 70.
All three types of injury require a causal connection with the
employment. We are not here dealing with the first type of
sudden event injury. Mr. Clymer’s claim was that he had
sustained an occupational illness, the third type of injury, which
of course was rejected by the A.L.J. and the Benefits Review
Board. The A.L.J. accepted the testimony of Dr. North and
found as a fact that the claimant's hypertension and diabetes did
not constitute an occupational illness, as these conditions were
not caused by hazards peculiar to the employment. These
conditions were ordinary diseases of life to which the general
public is exposed. There was no effort by the claimant to
establish an accidental injury, as his case was presented on a
theory of an occupational illness. The Court of Appeals departed
from U.S. Industries/Federal Sheet Metal, Inc. v. Director,
Office of Workers’ Compensation, United States Department of
Labor, supra in two respects: First, as previously argued, in
failing to require the claimant to prove an accidental injury or
occupational illness caused by the employment; and second, in
permitting a recovery based upon a theory of an aggravation ofa
pre-existing condition, when the claim before the A.L.J. and
Benefits Review Board was based upon an occupational illness.
Regarding the second point the lower Court permitted recovery
on a theory not advanced by the claimant. There was never any
contention of pre-existing hypertension or diabetes by Mr.
Clymer, indeed the claimant denied any such pre-existing
problems in his testimony before the A.L.J. Nevertheless,
contrary to U.S. Industries/Federal Sheet Metal, Inc. v.
Director, Office of Workers’ Compensation, United States
Department of Labor, supra, the Court permitted a recovery on
a claim — aggravation of a pre-existing condition — which was
never advanced by the claimant, who always based his claim on
an occupational illness.
12
Il.
The Court of Appeals for the Fifth Circuit Has Decided an
Important Federal Question Which Has Not Been, But Should
Be, Settled by This Court
This case is of importance to the administration of numerous
claims under the Longshoremen’s and Harbor Workers’
Compensation Act (33 U.S.C. §901 et. seq.) and its extensions.
{i.e.. Defense Base Act. 42 U.S.C. §§1651-1654; Non-
Appropriated Fund Instrumentalities Act, 5 U.S.C. §8171-8173;
Outer Continental Shelf Lands Act, 43 U.S.C. §§1331-1343, and
the District of Columbia Workers’ Compensation Act, 33 D.C.
Code 501, et. seq.]
The interpretation by the lower Court of “injury,” which
heretofore was limited to an accidental injury or occupational
illness arising out of and caused by the employment, will bring
workers’ compensation into traditional nonoccupational and
ordinary illnesses or injuries such as colds, viruses, heart attacks
and death from conditions of aging. Under the lower Court's
decision, so long as any condition of the work has any effect upon
such ordinary diseases, an employee can demonstrate a
compensable injury without any proof of either an accidental
injury or occupational illness caused by the employment. It may
be an aggravation for an employee with a cold to walk to a flight
of stairs at work, but does this mean that to recover in an
aggravation case a claimant does not have to prove an accidental
injury or occupational illness caused by the employment? (33
U.S.C. §902(2)).
The important federal question raised herein should be
resolved by this Court. A court must affirm a decision if the facts
found by the A.L.J. are supported by substantial evidence in the
record considered as a whole, if they are not irrationa! and if the
decision is in accordance with the law. See, Banks v. Chicago
Grain Trimmers Ass'n, 390 U.S. 459 (1965); O'Keefe v. Smith,
Hinchman & Grylls Associates, 380 U.S. 359 (1965); Diamond
M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (Sth Cir. 1978).
13
The fact finder, i.e., the A.L.J., is to determine the credibility of
medical witnesses, John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961), and the fact finder may accept or reject
testimony. Perini Corp. v. Hevde, 306 F.Supp. 1321 (D.R.1.
1969).
The reviewing court may not reweigh evidence, but only
determine if there is substantial evidence supporting the findings,
South Chicago Coal & Dock Co. v. Bassett, 104 F.2d $22 (7th
Cir. 1939), aff'd, 309 U.S. 251 (1940). The court may not
substitute its own judgment for that of the fact finder as to work
relatedness, if the finding is supported by substantial evidence.
Newport News Shipbuilding and Drydock Co. vy. Director,
Office of Workers’ Compensation Programs, United States
Department of Labor, 583 F.2d 1273 (4th Cir. 1978), cert.
denied, 440 U.S. 915 (1979). In reversing the decisions of the
A.L.J. and Benefits Review Board, it appears the Fifth Circuit
does not disturb the findings of the A.L.J. and the Benefits
Review Board that Mr. Clymer’s diabetes and hypertension were
not caused by an on-the-job accidental injury or occupational
illness. If this is so, its opinion is contrary to U.S.
Industries / Federal Sheet Metal, Inc. v. Director, Office of
Workers’ Compensation Programs, United States Department
of Labor, supra. If the lower Court's opinion is construed as
reversing the findings of the A.L.J. and Benefits Review Board
‘on causality” because the diabetes and hypertension may have
been “aggravated” by the employment, then it is submitted the
Court of Appeals improperly substituted its judgment for that of
the fact finder. There was no evidence in this case of an
accidental on-the-job injury which aggravated the claimant's
diabetes or hypertension nor was there any evidence sufficient to
establish an occupational illness, which requires exposure to a
hazard peculiar to the employment. Grain Handling Co. v.
Sweeney, 102 F.2d 464 (2d Cir. 1939), cert denied, 308 U.S. 70.
The lower Court has erroneously utilized the “aggravation”
evidence to change the claimant's theory, reweigh the evidence
and substitute its judgment for that of the fact finder. Groom v.
Cardillo, 119 F.2d 697, 698 (D.C. Cir. 1941). The A.L.J. applied
14
every presumption in favor of the claimant but found as a fact his
diabetes and hypertension were not caused by the employment
nor was Mr. Clymer exposed to any hazards more peculiar than
those ordinary hazards of life to which the public is exposed. The
decision is supported by substantial evidence, to wit, the
testimony of Dr. North which the A.L.J. accepted. When a lower
court improperly substitutes its judgment for that of the fact
finder, this Court has reinstated the decision of the Benefits
Review Board and A.L.J. U.S. Industries Sheet Metal Inc. v.
Director, Office of Workers’ Compensation, United States
Department of Labor, supra, Del Vecchio v. Bowers, 296 U.S.
280 (1935).
The Court of Appeals also reversed the A.L.J.’s findings that
the claimant had failed to prove disability. The A.L.J. relying
upon the medical opinions of Dr. North, Dr. Black, Dr.
Spitzberg, and even the claimant's doctor, found that since the
claimant had failed to demonstrate any injury or illness induced
disability, the burden had not shifted to the employer to
demonstrate the availability of work. See, Diamond M. Drilling
Co. v. Marshall, 577 F.2d 1003 (Sth Cir. 1978), which holds that
.. . “[O}nce the claimant demonstrates his disability . . .”° the
burden shifts to the employer to demonstrate the availability of
work that the injured employee can perform. /d. at 1007. This
finding that Mr. Clymer had failed to demonstrate any disability
is supported by substantial medical evidence of at least three
doctors, yet the lower court held that since there was no showing
by the employer of available work and wages which could be
earned, the findings of no disability should be set aside. This is an
impermissible shifting of the presumption which has traditionally
required the claimant prove a compensable injury caused some
disability before the burden of showing the availability of work
would shift to the employer. See, Diamond M. Drilling Co. v.
Marshall, supra; American Stevedores, Inc. v. Salzano,
538 F.2d 933, 935-36 (2d Cir. 1976); Perini Corp. v. Heyde,
306 F.Supp. 1321 (D.R.1. 1969),
To Insure Proper Scope of Judicial Review in Accordance
with Established Court Precedent
Although the lower Court acknowledged its scope of review
was limited to a determination of whether or not there was
substantial evidence in the record as a whole to support the
A.L.J..s conclusion that Mr. Clymer did not sustain an
accidental injury or occupational illness or disability caused by
the employment, as previously submitted, it failed to properly
apply this standard of review and substituted its own judgment
for that the trier of fact. The panel also set aside the A.L.J.'s
findings as to work relatedness which it is bound to accept if it is
consistent with law and support by substantial evidence in the
record and considered as a whole.
Finally the Court of Appeals erred in reversing the A.L.J.’s
findings that the claim was barred by the thirty (30) day notice
and one year statute of limitation requirements under the Act.
(33 U.S.C. §§912a, 913a.) The A.L.J. found as a fact that Mr.
Clymer was told by an Israeli doctor that he had hypertension on
December 7, 1976 and since his employer was not notified of the
claim until mid-April, 1978, and the claim was not filed until
August 21, 1978, it was barred under §§912(a) and 913(a) of the
Act. The lower court reversed, holding that since Mr. Clymer
was not told by his doctor, Dr. Dunn, until April, 1978, his
condition was potentially work related, his claim was not barred.
While the Benefits Review Board has typically required that
these limitation periods will not commence until the employee is
told by a doctor his condition is work related, Stark v. Lockheed
Shipbuilding Co., 5 B.R.B.S. 186, B.R.B. Nos. 75-253
(December 8, 1976), the legal test is when the employee knew or
should have known the condition was work related. The lower
Court has effectively held the test in all cases is when was the
employee told by a doctor his condition was work related. This is
not the test enacted by Congress and the lower Court erred in
16
requiring such evidence and reversing these findings of the A.L.J.
that the claim was barred for failure to comply with §§912(a) and
913(a) of the Act.
CONCLUSION
For all of the reasons stated herein, it is respectfully submitted
that this Petition for a Writ of Certiorari should be granted.
Respectfully submitted,
ae, ; Z
KY Cau pon
By:
Davip W. TOWNEND
of
DeHay & BLANCHARD
2300 South Tower
Plaza of the Americas
Dallas, Texas 75201
214-651-7000
Attorney for Petitioners
17
CERTIFICATE OF SERVICE
This is to certify that three true and correct copies of the above
and foregoing Petition for a Writ of Certiorari to the United
States Court of Appeal for the Fifth Circuit has been mailed to
all attorney of record and to the Solicitor General, Department
of Justice, Washington, D.C., on this Z 7 day of August, 1983.
Davip W. TOWNEND
\-!
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-4310
: a U.S COURT OF a
HOWARD R. CLYMER,
FILED
Petitioner,
JUN
versus 14 1963
E-SYSTEMS, Employer, and Lr3cQbhBhRe
INSURANCE COMPANY, Insurance Carrier, e ne
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion_pecember 2, 1982, 5$ Cir., 1982, F.2d ).
( JUNE 14, 1983 )
Before BROWN, GOLDBERG and POLITZ, Circuit Judges.
PER CURIAM:
(A The Petition for Rehearing is DENIED and no member of this
panel nor Judge in regular active service on the Court having
he ime ge that the Court be polled on rehearing en banc, (Rule 35
Pederal Rules of Appellate Procedure; Local Fifth Circuit Rule 16)
the Suggestion for Rehearing En Banc is DENIED.
( ) The Petition for Nehearing is DENIED and the Court having
been polled st the request of one of the members of the Court
and a majority of the Circuit Judges who are in regular active
service not having voted in favor of it, (Rule 35 Federal Rules
of Appellate Procedure; Local Fifth Circuit Rule 16) the Suggestion
for Rehearing En Banc is also DENIED.
( ) A member of the Court in active service having requested
@ poll on the reconsideration of this cause en banc, and a
majority of the judges in active service not having voted in
favor of it, rehearing en banc is DENIED.
Se oer sara oF RULE 4] FRAP AND LOCAL
RULE 17 FOR STAY OF THE
RONG-6
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 81-4310
HOWARD R. CLYMER,
Petitioner,
versus
E-SYSTEMS, Employer, and
LIBERTY MUTUAL INSURANCE
COMPANY, Insurance Carrier,
and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
(DECEMBER 2, 1982)
Before BROWN, GOLDBERG and POLITZ, Circuit Judges.
POLITZ, Circuit Judge:
Howard R. Clymer seeks review of a decision by the
Benefits Review Board (BRB) of the United States Department
of Labor under the Longshoremen's and Harbor Workers Compen-
sation Act (LHWCA), 33 U.S.C. § 901, as extended by the
Defense Base Act, 42 U.S.C. § 1651. The BRB, one member
dissenting, upheld an Administrative Law Judge's (ALJ) .
denial of benefits, opining that the evidence failed to
establish a causal connection between Clymer's employment
and) = 6his)= physical condition. Finding an erroneous
application of the LHWCA, we reverse the denial of benefits
and, because of insufficient factual findings on the extent
of disability, remand for further proceedings.
Context Facts
In June 1978, Clymer, then 47 yeers old, was employed
by E-Systems, Inc. es @ heating and air-conditioning
mechanic for work in the Sinai Field Mission, an early
warning system located in the Gideon-Mitla passes in the
Sinai Peninsula.! Clymer then suffered no symptomatic
medical problems, and an employment physicel apparently
disclosed none.
Upon his arrival in Isreel, Clymer began working
substantially, if not principally, on tasks other than those
typically associated with heating and air-conditioning
work. His initial assignments involved manual labor anc
construction work. Clymer's work attitude anc efforts met
with the approval of his superiors who commended him. He
apparentiy worked hard.
In August 1976 Clymer began to experience
difficulties. The first manifestation was a chronic sense
of exhaustion. By the following December he suffered nausea
and the onset of numbness of the right leg, right arm and
right side of his face. He reported to the paramedics who
gave him pills. He was subsequently hospitalized and his
condition was diagnosed as transient hypertension with
possible ceredral ischemia. He returned to work but
continued to be troubled by intermittent headaches and bouts
of nausea. In May 1977 Clymer returned nome for a visit but
sought no medical treatment. In June 1977 he went beck to
the Sinai after signing on for a second year of duty.
eel
1. See Dobyns v. E-Systems, Ine., 667 F.2d 1219 (Sth Cir. 1982).
B-3
In January 1978, Clymer was hospitalized for 12 days.
The following month he returned home to seek medical
treatment. His employment by E-Systems was terminated in
March 1978.
In August 1978 Clymer filed for berefits under the
LHWCA. In denying benefits the ALJ concluded that Clymer
had failed to provide his employer with timely notice of the
claim as required by 33 U.S.C. § 912(a), failed to file his
claim within one year as required by 33 U.S.C. § 913(a), and
failed to establish a causal link Detween his employment and
the disability asserted.
The evidence before the ALJ included reports from Dr.
John Dunn, Clymer's family physician, together with reports
or testimony from other doctors to whom Clymer was directed
for examination. Dr. Dunn stated that Clymer was disabled
gue to hypertension and diabetes mellitus. He concluded
that work conditions, environment and Giet were contributing
causes of these difficulties.
Dunn's medical opinion was challenged in part by Dr.
Robert L. North, a physician with impressive professional
credentials. Dr. North agreed with the Giagnosis of
hypertension and diabetes, but testified that neither
disorder was caused by Clymer's work in the Sinai, climatic
conditions there, or diet. Dr. North was of the opinion
that Clymer would likely have suffered the same cebdilitating
difficulties even if he had not left Dallas. He believed
the condition to be controllable through diet and medication
and found Clymer's thus controlled.
The ALJ credited Dr. North's testimony in finding that
E-Systems had Successfully rebutted the Section 20(a)
B-4
presumption of causality? and in finding that Clymer's
condition was net aggravatec cy em loyment related
factors. The BRB affirmed, acdressing only the aggravation
issue. It concluded that Dr. North's testimony constituted
sudstantial evidence to rebdut the statutory presumption.
The dissenting member was of the opinion that the employer
had not rebutted the statutory presumption of compensebility
and that Clymer's diet and work environment aggravated a
pre-existing condition.
Causality anc Aggravation
The scope of our review is limited -- we simply
determine whether there is subdstantial evidence on the
record eas a whole to support the ALJ's conclusion that the
employment environment did not aggravate Clymer's
condition. That measure of evidence is defined as "'a
Substantial basis of fact from which the fact in issue can
be reasonably inferred... .'" Diamond M. Drilling Co. v.
Marshell, $77 F.2d 1003, 1006 (Sth Cir. 1978) (guoting NLRB
v. Columbian Enameling end Stamping Co., 306 U.S. 292,
299-300 (1939)). See Fulks v. Avondale Shipyards, Ine., 637
F.2¢6 1008 (Sth Cir. 1981), cert. denied, 102 §.Ct. 633
2. The statutory presumption of conpensability, whieh
appears at section 20(a) of the Act, 33 U.S.C. § 920(a),
provides as follows:
In any proceeding for the enforcement of a claim
for compensation under this Act it shall be
presumed in the absence of substantial evidence to
the contrary --
(a) that the claim comes within the provisions
of this Act.
This presumption “applies as much to the nexus between an
employees' maiady and his employment activities, as it does
to any other aspect of @ elaim." Swinton v. Kelly, $54 F.2d
1075, 1082 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).
B-S
(1982); Todé Shipyards, Inc. v. Praiey, $92 F.2d 805 (Sth
Cir. 1979); Watson v. Gulf Stevedoring Corp., 400 F.2d 649
(Sth Cir. 1968), cert. denied, 394 U.S. 976 (1969).
We are persuaded that the conclusion of the ALJ, upheld
by the BRB, on the issue of aggravation is not supported by
the quantum of evidence required. Although we have examined
the entire record, we need not look beyond the testimony of
Dr. North, upon whieh the ALJ principally relied, in
overturning the BRB's decision. Dr. North testified that
Clymer's medical problems, hypertension and diabetes, were
"things which may be aggravated by dietary and even
environmental influences,” although they would not be caused
by such. There is no contrary evidence in the record. The
medical opinion es to aggravation of a pre-existing
condition is thus uncontradicted.
If an employee is able to show that employment
concitions aggravatec a pre-existing condition resulting in
disability, the LHWCA provides benefits commensurate with
the disability. Fulks v. Avondale Shi rds, Inc.; Newport
News Shipbuilding & Dry Dock Co. v. Director, $83 F.2d 1273
(4th Cir. 1978), cert. denied,440 U.S. 915 (1979); Wheatley
v. Adler, 407 F.2¢ 307 (D.C. Cir. 1968). We conelude that
Clymer is entitled to benefits for a disabling work-related
aggravation of @ pre-existing condition.
Disadility -- Extent of Benefits
The ALJ found that Clymer suffered no disability.? In
reaching this conclusion the ALJ credited the testimony of
3. Disability "means incapacity because of injury to earn
the wages which the employee was receiving at the time of
injury in the same or any other employment." 33 U.S.C. §
$02(10).
B-6
Dr. North, who examined Clymer in April 1979, 14 months
after he had returned from the Sinai and undergone a course
of treatment by Dr. Dunn. Dr. North could find no physical
impairment whieh would preclude Clymer's return to his prior
employment. The ALJ credited Dr. North's testimony that the
hypertensive and diabetic conditions were being controlled
by diet and medication, and the medical opinion of two other
doctors who stated that Clymer's neurological examination
was within normal limits and that there was no evidence of
organic disease.
We find no medical evidence offered by E-Systems
addressing the question whether Clymer's condition prevented
him from earning comparable wages prior to the time his
condition improved due to diet and medication. The only
evidence on. this point is found in the reports of Dr.
Dunn. On April 13, 1978, Dr. Dunn reported that Clymer was
unable to work, a condition which would continue
indefinitely. In @ subsequent report, Dr. Dunn stated thet
if a neurological examination proved negative, Clymer would
be considered employable. That examination, as noted above,
was negative; however, Dr. Dunn advised Clymer against
returning to work. In @ letter dated August 28, 1979, Dr.
Dunn stated that Clymer's condition remained the same, with
the exception that his blood sugar level was normal. "The
seme" was not further defined and no explanation was offered
for his advice to Clymer that he defer returning to work.
The ALJ's findings do not provide a sufficient basis
for an evaluation of the extent of Clymer's disability
claim. There are no findings relative to Clymer's symptoms,
imeluding fainting, periods of semi-consciousness and
numbness, and how these would bear upon a finding of total
B-7
temporary, permanent partial, or temporery partial
Gisability. The evidunce of record points to the existence
of a period of disability, however, we are unable to fathom
how much or how long. We must remand for further findings
on the issue of disability.
Statute of Limitations
Under Section Gl3(a) of the Act, « claim under the
LHWCA is time-barred unless it is filed within one year
after an employee is aware, or by the exercise of reasonable
diligence should heave been aware, of the relationship
between the injury and the employment. The ALJ found that
Clymer was aware that he had intermittent labile
hypertension on December 7, 1976 and therefore his claim,
filed August 21, 1978, was not timely. The ALJ made no
finding, however, that Clymer was told in December 1978 thet
his condition was employment related.
The ALJ's finding is not supported by substantie!
evidence. Although aware from late 1976 that he had some
sort of affliction, it appears that the first time Clymer
had reason to suspect his condition was employment related
was in April 1978, after he received Dr. Dunn's diagnosis.
See Fulks v. Avondale Shipyerds, Inc., 637 F.2¢6 at 1012
("the period ‘begins to run when the employee knows, or
reasonably should know, that his condition... arose out
of his emplioyment'"). Clymer's claim was therefore timely
filed.
Under section 912(a), Clymer was required to give
notice to E-Systems within 30 days. This requirement was
also satisfied -- an E-Systems employee testified thet the
B-8
company received notice of Clymer's claim in April 1978. We
therefore conclude that the ALJ's finding that Clymer failed
to comply with the LHWCA's time and notice requirements,
which finding the BRB did not address, is not supported by
substantial evidence.
REVERSED and REMANDED for further proceedings
nsistent herewith.
APPENDIX C
Clerr
Benefits Peview Zcarc
ORDER
PUBLISHED
Texas
s
ecrs
eals
prea.
-
-
allas,
a
-~
-
C-|
yres),
surative
elsce & A
inistrative App
¥
BENEFITS REVIEW BOARD
arriere
-
i=
U. S. DEPARTMENT OF LABOR
exas,
allas,
Jc ge:
e ‘ ?
¥v@ appea.s
'
sen
e Usngshore
-~¢
arpea.
mos 33 an
vu
’ :
Appea.s «3
ive
a
”
asses OF aggravate
a
-
hes an
neacac
“ff
“*
-2ze¢
oss.ta
loyer
anc esp
1978,
-.
--2altant
oy
ired
regu
ry as
cm.
“~~ Je
found
further
C-3
employzent. Section 2/2), 33 U.S.C. $902(2). Claimant appeals
the decision of tne administrative law judge, urg.ng reversal of
chese findings.
On the issue of causal connection, tne record contains
conflicting sedical opinion. Or. Jonn Dunn, claiszant's treatin
physician, opined, in @ report dated August 28, 1978, that
Claimant's work conditions and diet were 9th contricuting causes
> his hypertension and diabetes. Or. Jonn North, nowever,
testified that neither of these conditions say de attrioutes to
slaizant'’s occupation, geograpnic location, work environgent or
diet. In Dr. North's opinion, claimant would nave developed tne
same impairments nad ne remained in Texas. He denied that tne
tanual labor required of claimant in nis jos aggravates nese
soncitions. Moreover, Dr. Nertn consicerec claimant's age, over-
weignt, anc meavy alconol use as factors aggravating mis conditions.
In a detailed and well reasoned opinion, the acministrative
Law judge found tnat employer nad reduttec tne Section 20(a)
presumption of causal connection. The administrative law jucge
credited the testimony of Dr. Nortn and fount tnat claisant's
nypertension and é¢iabetes sellitus would have occurrec irrespec-
tive of nis employment. Moreover, tne administrative law judge
found that these conditions were not aggravatec Sy claisans’s
employment, work environment or ¢iet. He credited testiszony ‘nat
——— -
employer proviced cafeteria-style meals, designe¢ to approxisate
tne American-type diet, that special food items sould be prepares
for workers at tneir request, and tmat it was possiole for
individuals to ¢o tneir own cooking.
-i-
C4
erar.ner
tia« ar sedica
"ss 4 Dann Be
any 5
«*
evicenrce
CBiniSe-
the a
evicen
«
scge's denial
connection.
«a6
al
.
classac
Re adaisistrative
o
*
we affirs
ec
ausaliy
‘
-
otner
0
-
—
~ee
PL Pos
wast.
* °
a] ”
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= o
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oo ao
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@est Capy Available
C-§
beccddiccodco
« SA - " -* -, ‘ - "« ae} -*
a J 1
Ot ee ee he hb eh me ee ee
‘ Bere: Fevew Boat
U.S. Department of Labor een
wasngier SC 20008
A @ciSion Dy tne Benefics Review Scard
Secomes final after 6° days from tne date sucn
Sec.sion is issued cnless a PetLtion requesting
Tevaew Nas Seen filed in the appropriate United
States Court of Appeals. 33 U.$.€. §9223(e)
BENEFITS REVIEW BOARD
U. S. DEPARTMENT OF LABOR
NO. 79-766
HOWARD CLIMER
Claimant-Petitioner
v.
£-SYSTEMS
acc
LIBERTY MUTUAL INSURANCE COMPANY
A et et et et eS
Zaployer/Carrier-
Responcents ) DISSENTING OPINIC
MILLER, Administrative Appeals Judge, dissenting:
I ¢issent from the saiority's denial of >enefits to claimant.
The record ices not support ay colleagues’ statement that *(t)he
testisony of Dr. North sot only constitutes sudstantial evicence
to rebut the presumption, but also constitutes substantial evi-
dence to support the administrative law judge's finding ‘hat
claimant's condition is not causally related to his employment.*
Majority Opinion, slip op. at 5. For the reasons stated hereis,
I would hold that employer has not rebutted the presumption of
compensability mandated dy Section 20(a), 33 9.$.¢. $g20(a).
Section 20(a) provides that "(iln any proceeding for the
enforcement of a claim for compensation under this Act it shall
be presumed, in the absence of Sudstantial evidence to the cone
, .
trary -- (a) That the claim comes within the provisions of this
C-8
Act." 33 U.S.C. §920(a). This presusption finds its basis is
She humanitarian nature of the Acc. Leycen ¥. Capital Peclaza-
tion Corp., 2 BRBS 24, 27, BRB Nos. 74<2246/4 (1975), af?'s sea.
S87 P.24 706 (D.C. Cir. 1977). See Hensley +. Washington Metrs-
poiitan Area Transit Authority, 13 BSRBS 182, P.26 » Mo.
eo
79-2552 (D.C. Cir. Maren 17, 1981), rev'g ‘' BRBS 468, BRB No.
78-637 (1979) (Miller, Gissenting). MScreover,
the beneficient purposes and humanitarian
mature of the Act sust be borne in aind
when deciding whether the eaplcoyer has pre-
Sented ‘substantial’ evicence; thus doust-
ful questions, including factual ones lixe
work-relatedness, aust be resolved in
favor of claimants.
Hensley, '3 BRBS at 145, P.24 at - The Section 20/a)
presumption "applies as such to the hexus Setween an employee's
malady and his employment.activities as it does to any other
aspect of a claim." Swinton v. J. Prank Kelly, Inc., 4% BRBS 466,
875, 554 F.2d 1075, 1082 (D.c. Cir.), cert. denied, 429 7.8. 820
(1976). In order to rebut the Section 20(a) pres tion, the
employer gust present "evidence Specific and comprenensive enough
to sever the potential connection between the disability and the
work environgent." Parsons Corp. of California v. Director. OwcP,
12 BRBS 234, 235-326, 619 P.24 38, 4! (9th Cir. 1980). Purther,
Since this case arises under the Defense Base Act, the egployer
Bust show that the condition did not arise cut of the "zone of
special danger” created by claigant's conditions of employment.
See O'Leary v. Brown-Pacific-Maron, Inc., 340 0.8. $08 (1951). a
Showing that claizant's Balady say also be caused Sy some factors
which are not work-related is insufficient to rebut the presumption.
«Ge
Dr. Jonn Dunn ¢iagnosec claimant's ‘sl.ness as ziacetes
sellitus and transient nypertension, a ciagnosis assentec to by
. Robert North. Or. Dunn opinec that ‘ne camp c.et anc work
conditions were scoth causes, a.5e@i% Sot tne enly ones, in the
development of claimant's Symptoms. -.-- Ex. §. The sascority,
.
relyicg om the testisony of Dr. North, avers that there is 0°
sausal connection between claisant's eaploymect as nis illness.
@ith this assertion, sy cclleagues ignore <ne well-estas-
Lisne¢ principle that "a aggravation of a pre-existing condition
tay constitute a compensaSlie...inlury ander the Act...." Wheat-
ley 7. Acier, 307 F.24 207, 22 (D.C. Cir. 1968). Altbougn
Dr. North's testimony say 2e cited to for the stategent ‘hat
claimant's eaployment 4i¢ sot cause Sis aa.acy, nis testisgony
Supports claimant's assertion ‘nat his employment aggravates
nese conditions.
During cross-exasination Sy claisact's counsel, the fsol-
lowing testisony was cffere¢ by Or. Nortn.
Q Dr. Werth, ¢o I understan¢ your opin-
ton to be then that Or. Dunn Sas 5
medical basis for nis opinion, is that
correct?
A Specifically there is sc >Sasis in me¢ical
probability ‘hat sucn conditions as neat,
perspiration, the specific <iet would Se
causes for labile nypertension or ciabdetes.
t can’t affect
stisony?
“o
And it’s your te
tisony tha
it, too, isn’t e
s .
Bat your *
A That if what?
e it can't affect those sisorcers
her?
“»
A It certainly can affect tnose cisorcers.
ojo
C-10
Rearing Transcript at 29. Or. North later Teiteratec the saze
opiaion.
Zarlier when you was talking about diet,
YOu tock se Sack a@ little bit, but I want
¢¢ Sake sure I understand you. , rou're
Sot saying that diet can't affect bodily
Gysfunctions, but that you didn't see it
Causing bocily dysfunctions as the hyper-
tension and as to diabetes?
A That's correct.
Rearing Transcript at 102-03.
In response to a request for an explanation of why Or. North
isagreed with Dr. Dunn, Dr. Norts replied as follows.
A Because that doesn't fit with our current
uncerstanding in the weight of the sedical
evidence as to the genesis and the nature
of these diseases. There are things which
may de aggravated by dietary anc even en-
vironmental influences but they are ob-
viously not caused by these things because
there are sany gany people who are exposed
tO the same conditions that never develop
the disorder.
So there has to be some other factor
om factors involved in the genesis of hyper-
tension and diabetes. In essence that's
ay answer.
Hearing Transcript at 129-30. Thus, the galority'’s reliance on
Dr. Norta's Sestiszony to support its contention of no causal
connection is sisplacec. It is clear that the employer presented
RO evicence specific and comprenensive enough to sever the poten-
tial link between claizant's Balacy anc his employment. Rather,
esployer's sedical evicence Supports claisant's contention that
his illnesses were work-related.
ode
C-11
In addition, the taiority'’s statement ‘hat "Or. North
sonsidered claimant's...neavy alcohol use 4s ta factor) aggra-
vating his conditions" is tncorrect. Ma‘ority Opinion, slip op.
at 2. Although Or. North opined tnat heavy alconol use is an
aggravating factor in sevelopment of hypertension anc diabetes,
ne testif: that he had no knowledge of claizant's alconol use.
Searing Transcript at ‘32-33.
However, assuming arguenco ‘nat claimant 4i¢ use alconcl
meavily, I would still hold that tne link Detween nis illness
and employment was not severed. 2 the conditions of eaplcoy-
ment create a zone of special danger out of which the injury
arose, then a causal connection exists. O'Leary v. Brown-
Pacific-Maxon, Ince. 1! would take judicial notice that the inat
és a desert an¢ conducive to drinking. Accordingly, since ‘ne
employer has not established otherwise, see 33 U.S.C. §$320(a),
any heavy alcohol use is attributadle to claimant's work en-
vironment.
Consequently, sy colleagues err in ‘tneir econclusica that
Dr. North's testimony constitutes substantial evicence to redut
the Section 20(a) presumption. In view of the uncontradicted
testimony that ¢iet and the work environment aay aggravate con-
ditions, I would reverse the administrative law gudge's denial
of benefits. See Kicklighter v. Ceres Terminal, Inc., 13 SRBS
109, 118 a. 10, BRB No. 79-550 (1981).
~ he Pe
Dated this 30th day inistrative Appeals Judge
of September 1921 \
RViCE SHEET
SRE Noe 79-766: Howard 2. Clymer we E-Syste@s,anrc Liserty “utua?
insurance Comoany (Case Noe 72LaCa-l seen)
LQuc? Noo 2-58565)
Copies were sent to the following:
Samuel Le Boyds Esa. Certified
“cElroy and Soya
2505 Republic National
Bank Tower
Oallase Tx 7$201
JOMPN We Paynes Esce i Certifies
OeHay and Slancnara
Plaza of the americas
2300 South Tower
Oallase Tx 75201
“re Donald Se Shire Certified
Associate Solicitor
UeSe Oepartment of Laver
Suite 2620+ NOCL
Wasnmingtonse 3C 20210
“rse Marilyn Ce Feluner
ASSistant Oeouty Commissioner
US OOL/ESAsOwce
Room 2108
2320 LeBranch Street
Moustons Tx T7004
sucge David Sinarci
UeSe Oepartment of Labor
Suite 901
1001L Howard Avenue
New Orleans: LA 70113
“re Ralom “. Hartsan
Directors Office of workers’
Compensation Procrams
UeSe Separtment of Labor
Suite $=3524. NOOL
dasmingtone OC 20216
APPENDIX D
D-|
Hedert Feteral %.14619¢ 3
*e \
Scom 709, £00 South Street WS
ne £ V
New Orlears, Lou.s.anre 67:3¢
U.S. Department of Labor Dota ACm etree Lae .6oge8 €):
Racy to (me Aerie Of SAUD
In the Matter of
MOWAPO @, CLYMER
Claisant
acainst “ase No. 79-L MCAT ESEN
€ syvsrems Sac? No. 2-88065
Eeolover
LIBERTY MUTUAL INSUPANCE COMPANY
-
Sesuel L. Boyd, Esa.
Kelsoe anc Ayres
$746 (8) Freeway
Dallas, Texas 75240
Jomnn William Payne, Esa.
Davie Townend, Esa.
Garcere, Wyone, Jaffe anc Cena,
1700 ®epublic National Auilding
Oslles, texss 75203
Before: OAVIO w. OL NAPO!
Administrative Law Judce
DECISION AnD 290EF
Statement cf *r.0 Case
This i898 @ claim for workmen's csuecenrsation benefits under
the Loncsmoresen's and Harbor ss:eers’ Cowoensation fet (33
J.5.C. $901, et sea.) a8 extended Sy the Defense Base Act (42
u.$.C. $1701, et sea.), Rereinefier te.rtis referred to ss the
.
erties were Giver the of
6 7)
which Mave Seen sceittes into evidence as Claisent's Exh;
ee Pespercents’ Ex @isit 13. Anolicetion for an attorney's fee,
Fried by Claimant's - @s Seer acmittes ints eviderce as
Clasmant’s Exmhisit 23 Tr.s dee: na rendered givinre
Pe cart.es “sie s*.oulutec, anc I find, as follows:
.
1. Tre Act aoclies:
? . .
2. ne Emcicyer/Esclicyee relaticonsnio existes between
- me
€ Systems (the Eesisyser) anc Howard ®. Clymer tne Employee) ’rce
rd
+
3. The Notice ef Contersversion was filed on November 14,
e = ae a An
S- Ss8imart §$ arnus! earnircs were $24,489.00.
N@ OF .MCisa. uriesclies issues in contro.ers, are:
1, whether @ comse*sedle injury has ceccurred and f $6
. “Aa. *merent-.
the cate treresof:
2. whether timely rotice of the iM jury wes given ts thre
Escloper:
3. whether Claieart vas timely filed this claim;
S. The ature and extent of any Giserility;
5. Attorney's fee, censities anc interest: ana
6. Claimant's sverace weekly wage.
“oward fty years of ace at the time of the
"acm scmocl. He mas scent most of Ais
eetal worker. From 1957 to 1970 ne
ocerated 1 Business and in 4979 he becan ts
work for 7canies a8 8 Feasting and sir cone
ditsaoninga reo ‘ im 1971 Re sqein opened his own air
Coneitioning and heating reoair Firm until June of 1976 when me
went to work for the Emsicyer in the Sinei. Claimant was wired
*O work 88 8 Feat.sng end Bit conditionina mecnanic altrougn
"e =88 to] from time to tise me @iont be required to 60 work
Sutsite of Ais ; 90" Orrival at the Sinai Fiela Mission,
Cla.@ant spent t.*@ uricecing anc setting vo furniture,
GOsNM@ SOM@ Construct .sr ana carpentry work Building e@ 60,00n
salior weter tere,
ehysiesl. He siso , . anc eoveres
slumping darenes, work 6 9.@. ifn B
eclimsie deserisec as feren thar arye-
thing Re Rad rete tmet it wes ynecefortebdle
working in the Le@-anc-ore-malf-rortns
Sleimant rescaires .
Cla.vert ital examination
and testified treat before goina to tre
Sinai. In Aueu it ted at the enc of
rhe 48) anc secar meacacmes. On Decester 7, 1976 Claie-
ant felt sumbress i9 9:38 PiGht leg, if of Ais riaht ere and
the ricomt side of "is face "8d 8 nuMoress. He slso experienced 8
Meusexted stomacr, reporting tmese sifficulties to the seremedics
ai the dispensary. 4@ wes civer sce silis ane tole to rest.
Tre follewine spring oe summer Claimant experienced si@iler
aiffieulties ane me was sosoitelizes in Tel Aviv for one week.
Joon “is @isemerce Claimert returrec to his seme emoloy@ent with
nq restriction ef. 26-58).
Claimant exseriences similar prysiceal reblems in iste
er.n@a of early summer of 1977 while at a Tel Aviv Motel, exoer-
seneine ceriogic Meadseres sisc. Thereafter, in January of 1978,
eP.,ie smnocoing if &@ fel Aviv ceoe rf ".S "eatacres
Started to bother Fi® enc Fe felt ay re to
"ss Potel, ne ecslled ais Emplc,er wn
eho save "im some ilis, teiline A to rest and te return te
work. However, Mr. Carl Lunauist, Eeoloyer’s SFM Tel Aviv Of fice
Maneger, *old Cleiment to seck Ais suitcsses for sdmittence to 8
local ress.ital, erere Claisant reseines for twelve cays. Trere-
ucon, Claimant returnres ts work anc, om Feorusty 23 sr 24, 1978,
was advises me souls Se sent “ome for “furtmer sedical evaluation
before my condition worsened.” Cleiment refused to $347 8
releese frum tre Eaoloyer, returned to the United States on
Feorusry 26, 1978 and soucmt secicel tresteent from Or. Dunn the
meat day ‘Tr. 15021963).
Claimant testified me eas 3 soserate crinker, takine “esyhe
two Or three Grinks if ore 48)" and remarking thet Re was intoz-
iceted "19 @ period of twenty snc 8 half sonrtns that I was there,
three of four times @ayhe at the ecst.” Ciaieent is on & “nO
aicone] saiet, 8 Giebetic diet.* Cles@ent’s osredlees with the
leternal Feverue Servite "ave seen corrected. Claisent Fes ct
eoreed since Ais returner to the U.S. Secause Or. Ounn Bes scxised
Pie not to work “until this wes eh] uncer centrol, # illnesses
ans so fartn, whatever it i8” (163-167).
» Claimant eceittes thet Ais cleie was
» that Ais weigrt if the Sines ASG
O sr 280 and thet Phe sow weians 182,
or cross-eramirat.
‘,lea en August 16, %9
es to a8 igh as 25
D-4
that Mss employment contract requires mim to cerfera services
other than those for which he was Fired, that re ec Sit Gays
a t Tel Avis,
Jerusalem, Fethlenem, Jaffa, Suez City ene Cairo,
ant returned nome for a +¥isit ifn June of 1977 ana
his Normal cuties at SFM until ris medical orsbless arouns
January 28, 1978 in Tel Aviv, acvwitting tmat ne wnew some-
fPing w@S wrong with Pim at that time and that rhe went to see Or.
Dunn on Fenrruary 27, 1978, the dey after Fas return. Me states
tmet Ao one Hed told mim thet His two previous sttaces “ere
1oberelated (Tr. 182-202),
Claimant was concerned about the T.R.S. audit in 1977, “e
acmitted that ne sometires crank an orange Vodha, Canadian Clus
or scotem if Mis room and at other times in tne SFM lounce sefore
slaying bingo. Me also admitted there was a salac bar in tne
Sining room, thet fresh fruit slso wes @va.lacdle and 9 ore
forced Fim to eet any perticular food item. Or. Ounn mas
Seen mis family soctor since 1970, The paramedics «ho worves 7
tme cispensary operated by the Employer told Claimant to ret
to work after mis Januery 1978 inciagent (Tr. 07-229). r.
Clymer characterizes Or. Ounn as ris Department of Labor-aorrs.es
doctor (Tr. 237-238). Altnougn Claimant experiences arctner
attack im May of 1977, snortly before returning to Garland, Tezsas
for @ vacation, me did not seek medical attention at that tise
(Tr. 240). Claimant's first attack occurred im Oecember of 1976
while Me was in the base camp; the second attack oceurres if
Merch or Mey of 1977 while at e@ Tel Aviv Potel and tre tn
attack occurred at @ Tel Aviv Gepartment store on January
1978 (Tr. 243).
Claimant, having been calles as ® redDuttal w.tness, testi-
fied tnhat he crank beer occasionally, Sut not the amount attr.-
buted to Fim, and that Or. Dunn, smortly after Claimant's return
to tne United States, told him mis diabetes Mmigmht be jon relates
(Responcents' Exhibit 6, dates April 13, 1978; Tr. 23-286),
The Emoloyee’s Claim for Comoensation (Form (5-203), cates
August 16, 1978, was receives by the Office of Workers’ Comoen-
Sation Procrams-Houston on Aucust 21, 1978 (Responcents’ Euniny:
10). A letter from Claimant's attorney, Samuel L. Bova, Esq.,
Gated November 2, 1978, was received on November 29, '978 (‘@e.
sooncents' Exhibit 9).
Robert L. Nortm, M.0., @ specialist an Cardiovascular
Giseases and internal medicine, obtained nis medical degree in
19558. Or. North, after reviewing Claimant's medical file anes
taking @ Mistory resort, examined Claimant on April 26, 1979,
At tnis time Claimant complained of weakness and numbness in
extremities and episodes of painful sensations also in Fis
extremities and at times in Fis chest. Or. North stated tn
prysicel exeminetion was cormel with tre exception of the ore-
-
sence of ecesa sr swell.ra cf the lower extremities. Or. North
requested 8 eurciccics] evelusetion if view of the ecoaplsinrts.
Or. Stuart Sleck perfsrees @ thorough ceursliccicel exzeminatiun,
the results of whieh were 7eg8tive. Or. Nortn Red Claiseant’s
tolerence for civesse or sucer tested. These tests sudstentistec
whet orevious tests "es socveerntec, sramely tmet Cleimant axe
@ilé siabetes sellitus, wes psleces on 8 diet src given oreil
m recce@erdces ss ycrolocicsl testing ane
medication. Or. Nort
referrel to @ ssycemrietrist, But Clei@ent refused.
On the desis of this and @ leter exs@ination, Oe. No
concluded tmet Fe “coulis find no setisfector, exzplaneticon or
wecical ciacrosis to @ unt for Mr. Clymer's symotcmatcloay” ans
that Ais @ild cisbetes anc inter@ittent igh Blooe sressure were
under contrel. Or. Nortmh expresses the coinion thet these
conditions (31.@. @116 sisdetes end inter@ittent righ iso
pressure) could rot se “sttriduted to Ais ceecupetion or to C.et
“+.
or t6 geogreoPicsl icestion, environ@ent, ror this sort of
cause.” Te. $8-69).
Furtmereore, Or. Nortrh did "not fine any omssicesl iesca.r-
ment, impairment and exercise ability coordination, enytnine of
this sort thet woulé oreciuce Mis emolor@ert .f thet liels” ‘%r.
70). Clasmant’s exercise stress test was necative, in that there
was 7G indication of af ebroreel carcicov.aseulaer ressonse °**
pmPysicel exertion (Tr. 82-82). Or. North testifies that Cleiae
ant's cisbvetes sellitus tends to bse an inmerites disesse ars
sPvalves an insulin ceficiency
User cross-ezs@eiration, Or. Nortm steted that elthoucn
ePysicel stress enc diet @ight effect siadetes, “there is 6
Desis if wedicel erodedility thet suerm conditions eas Fest,
persoiretion, tre soecilic siet would be causes for jisabiie
Pypertension cor siebetes.” Furthereore, “stesity 18 8 factor in
tre cevelcomert of tre warifestaticns of disdetes and Ayoer-
tension es weli* Te. 867-89). Or. North edeitted thet en
smoroper diet of igh carbon, 4retes, fats ard Fiah selts sey
effect cr sacreavate Mis Aysertension and ciabdetes (Tr. 10-99%
But denied thet omysicel exertion in the tesert sun e@ignt affect
Or eggravete these conditions (Tr. 182). Arwiet» or use of
sleomo)] ight eggrevete mycertension (Tr. *08) But “Bloed pres-
Sure per se 18 "Ot #8 disesse and it soesn't cause disability. 3
18 tPhrougm its effect (sie) on other orcen systees thet bisus
pressure becomes s orstlem anc it i8 to orevwent these affects
(sie) treet we treet secole with Aioh Blood pressure” (Tr. 107)
because “one of tre consecuences of sustsines hich Sisced pressure
ss Peart failure” es well es “harcening of the arteries,” stroke
arc «.gnmey disease. furtmerscre, “Slood sressure itself coes rot
Cause S)»*OLoms Of, yOu HNOw, Make secole sizzy or anything of
thet sort.” Hypertension end disbetes “become clinicsil,
D-6
peers” (Tr. 110-192). Ajtmouenm Or. Nortn
certain wircs of stress may aggravate
at
fret «Aow ah causes the sy»motams of
sining (Tr. 121).
cinres that Cleimenrt’s onssicea! @ezaminet.on and
"SC O5j}ective evicence of Brain disease, reart
¢arace (Tr. 126 Excessive use of alconol is
’ -
@ risk feetor, i ou will, fos fersicn and dianetes
cr givecse intclerance.” “cowerer, LO" aM¢ diabetes are
mot caused S» labor in the neat . . . Because tnere sre 9r\
peco.e@ #hS Ore erscses tc the seme conditions thet sever “serelso
the c.sorcer.” Claimant's sserweisht condition and ane “sre sot"
eggreveting factors." (Tr. 129-130),
Claimant's swelling of mis leos “reoresents ehronie ve
insufficiency sue tc some unknown cause” (f:. 124). "Ther
MO SOuUNG Scientific Sasis, trough, to sey ther gecearseonmy or s
petion causes this” Claiwert’s condition Tr. 136). Furt
cre, Or. Nortn coined “that tre locetion, the el.sate
er wPel» ace.certel in this case and trat re
m Tewas anc that mac ne Seer s.sen tne same 3
we .ont tr Sere, yOu enow, orchiers with
me same tite. in treat reso
fs 61). True ciabetes meliitus is some-
eS s7ce 8 ser, strong family incicent” end “there is
[halt Causes “yoertension or sauses Gisdetes” anc
t SMPic .socetionm ans secupetion in My COLnISAn Fave
MGtMing £9 36 with the sopesrances of Fisch Blood oressure or
Sistetes selilitus in this case . . 2 Furtmermore, acecuste
SO ySicS. ACL ivity anc exercise are metrocs used ts eortrol
Myoerteneion anc diebetes sellitus (Tr. 163-167),
Mr. Micmael £. “acoole, Emolover's Pronra- Marece:, testified
that he was if charge of duildina an early warning System in
the Sinner Oesert, 8 s stem which wag an Cutecrawtn of Henry
Cissincer’s smuttie dislismecy anc was senred entirely By U.S.
volunteers. MeO.» Construction started in Feoruary of 1976 ane
Fan through @is-June of 1976, at which time the camo was 99
cercent comsleted. Cafeteria-style seals were orcvided the
woreers, eels enich were Cesianes to sporevimete an Americar
Syoe@ ciet e8 clesel» ss sossible. Each cersor was free ts
select eny of the itees sveilaedie et any eel. Tre Sine:
weatner was Comparanie to Texas weather with tne oxcestion of 2
eiicer sinter. The location was 2300 feet on toa of 2 mountain
anc {mere was &@ Continuous Sreeze so that even the “ottest cays
"110 segrees Fanrenneit”) were bearable. Uson Nis Gisenarge
from the Pospitel in Jenuery of 1978, Claimant worked Paif cays
for several cays anc *mereafter it was Geterm.nec te send Claiane
ent rome to be examines dy His own family dector. rus, Emoloyer
srtencec tmat Claimant se terminates for wec.ical reesors because
me "ac 8.18ses 8 few work S8y8 O74 wes OMysicall, unable ts
eontinve if Pas or@sl wsurk eCsoacit,. However, Claimant eould
mot scree tc t".8 srocecure enerety "ce wuuld receive ‘00 cer cent
of Mis contract benefits arc, insteac, returnec *o the Unites
Stetes on Fis own. In Deceever of 1977 of Janusry of 1978 Mr.
Kaccle lesernes tmat Cleszart was beine suditec by tne [.8.S.,
remarking thet “se sesesrec 22 Be Suite snrrious esdbout it.”
Cla:@ent sever resorted $6 1.9 ary job-related intury oF oetue-
peticonel cisesse ‘Tr. 26$-258'.
A eress-erseiret ion Mc. MKecole ece@eittec tet Fe «knew
ac beer if the Bosoitel and thet tre 1.8.8. sudit
“could Pave seen ister ocr esriier if time” possibly By Siz
sontns. Me testified that tere wes not “auch #anuel later for
lone term curations after scorcaisetely the sidcle of June 1976,”
remarking that there were .erisus construction acd-ons tnhere-
after, tmet 70 percent or ":icher of Claimant's work was if tre
@ir conditionina-nhestinge fieloe, tnet special food itees were
preceres for certain workers et treir request and tPat if wes
slise possible for individusels to ¢s Lmeir own cook.g. Or.
Za:arseff edvisec “fc. Kacole 5» secicel repsert the ature of
Claimant's secicel orcdlees if: Jaruaery of 1978. At tnmat tise,
the two peremedies, “r. Barehiil ano “er. bay, reported that they
also were concerrec adout Cir ,ment’s mealtm (Claimant's Exmidit 7
ana Tr. 256-267
“er. S. Sme.ers, an escloyee of thre
testifie 4 me first lesrrced Clei:ment was
relates scecucetiorel siseese cr iliness on Aoril
19% 8 Brome conversation with Me. BF. HM. MeKelvey, Esoloye
ansurence sd@inistretor. Mr. Smavers was rot in israel
Janusry of February 1978 enc Bad 20 idee what sort
mec beer siven to the Eaolover i canuaery of February
2702273).
1978
Me. Gary Ford, Emolover's cersonnel specialist, errived in
tre Sines in May 6 1976 sec sepertec in January of this seer.
On two of three oeeesions each sortn “rer. Ford tences her if tre
PX lounge, testifsing thet oF server, @rGmAt or Aine cecssions he
coservec Claimant drinking gis *s e@10Pt seers et the bar in the
course sf an evening, thet Cile.sent told Rim edout an I.R.S.
@ucit and that Re seemest cervous about this sometiae in tre
summer oc fall of 1977, as weli a9 8 cersconre] health prodlee ‘Tr.
2762278). Upon ecross-exs@iretior, “re. Fors semitted thet Re dic
net wnow Fow auch Boney wes it-olies if the 1.8.8. sudit, re@ark-
sma thet Clei@aent “was voset sdcut it snc Re wanted some sort of
solution” and that 8 ist of seople drink when they sre isolated
(Te. 278-282).
Or. Jenn Ounn repertec of Aucust 28, 1979 thet Or. Stuart
Black's seurclogical evalcation was within normal liaits, tret
Claisart’s Sliced sucer level is sow sormal because of Fis diet,
that me exceriences inter*itilert episodes of Aypertension and
a
tmat Claimant's ceso ciet of High carbonmycrates, mich salt intake
anc work conditions “were cefinite factors in Fis secical site
vetion Clas@ent’s Exmidit $). Or. Ounn reoortec on Aoril 13,
1978 tmat Cleisert first sew Pim for chs. condition on Fedruary
27, *978 anc ¢t ne cisoncsed Myoertension and cossible cisdetes
Claimant's Err e Om July 18, 1978 ae. Ourn reported that
Cla:@ert’s "\cer ension “ane Giadetes sellitus were under ecntrol
Dy diet ens creel sedicetion and that re “could Be considered
fully emsicradie” if neurolocicel erslustion pro.es secstive
Responcerts’ Ex«emid.t 6). Or. Ounn reportes of Auaust 7, 1978
that Clai:sact’s several esiscces of cumpress cf the richt
side of ".8 Feat orcbebly “was transient ischemic attacks. ‘Threse
ttecks Mac never occurred prior to Mis residing in Israel.”
urtmer@ore, Or. Sunn ooines thet Eanlover’s secicsl serscrre!
Mis-Cisagnosesc acute coronary insuff:ciency, srecardial seins
and cirrmosis of the jiver (Responcerts’ Exmidit 6).
On Fetruary 9, 1978 Or. VW. Zaigraeff reocrtec thet Claisant
mad been "cs0:tslized on Janury 31, 1978 at Assuts Hospite!, ‘ve!
Aviv, wat” 8&8 final ¢issnosis of (1) Essential mvscertersion, 2
Strain of tre Myccercium ene (3) Sliemt cirrnesis of the liser.
Tt wes resortes that Claimant wes verwei.gmht at 270 sounc
Claimants Exmidit 6). On Fedruary 23, 1978 the cao osramedcic
reoortes :Pet “Mr. #. 8. Clymer smoule be sent Acee as sson as
90ssi01 sue *9 .8 sedicesl condition” (Claseant’s Exemidit 7).
Or. Cmraim fescean, om Fedruary 31, 1978, reportec treat Claisant
sPouls “stop drirkine slesmol to reduce weienrt” Claseart'’s
Exmidit 9).
Tre twolcver’s first report of saceidgent or scecucetiors!
sliness (REl-292) reflects tnat Claimant sid sot return to work
as of Fetruery 7S, 1978, tmat Ais cay wes stoccec as sf Maren ‘2,
1978, tmat tne Carrier wes notifies on May 8, 1978 of this
oceupationa@i :liness anc tnmat Or. Dunn sisancsed "ycertensisn anc
possible diadetes on 4oril 13, 1978 (Claimant’s Exmibit 12).
Gn June 18, *979 Or. Robert Lt. Nortn, Chie’, Internal
Mecicine, Presdyterian Mosoital of Osllas, reoortes that is
examination of the Claimant on Aor: 2 1979 lee to the con-
Clusionm that Cisieent’s eild cisbetes anc labile ",certension
cannot Se attridutec to Ais oecuvestion or resicence in [Israel
‘Respondents’ Exmioit 1). On Mey 23, 1979 Or. Stuart 8. Black
reportec thet Claimant's ££G was normal (Resconcents’ Exhibit 3).
Gn Maren 2, 1978 Or. Jack Soitzbdera, 8 cardiologist and interne
st, Oosnrecd that me could not seter@ine an etiolsay for Fis
oroblems inp Isrsel, that “perhaps extreme anxiety at thet tise
Coulc Mave raisec mis dDloed pressure transiently)” and that “at
this ooint i tise I feel Fe is generally in rcessonadle realthr
for Mis 36@ anc asice from possibly some anxiety attacks, I can
Fine me evidence of organic disease.” (Responcents’ Exhibit
A). Gn Karen 16, 1978 Or. Jack Spitzdera reported that Claie-
ant's stress test, hiloodg oressure, EKG and bloos scressure were
normal Resconcents’ Exhibit $-2). Gan Merch 97, 21976 Or. @. J.
D-9
Sarrer, @ radioloaist, resortec tmet Claeisart’s screrel sonccras
derorstrated "no adrenal sasses of otter adrorealities” Fesoorc-
ents’ Exhibit $-19). On Merem 17, 1978 Or. 7. J. Davis, @ redi-
sloaist, recortec "8A anc lateral views of the chest reveal tne
heart, pulsonery vascularity anc betrm lunc fieles to be nores).”
Pesconrdents’ Exmidit $-20).
In a Ristory resort, dated Marcr 17, °978, Clae:eant acvised
mecical personne! at Presbyterian Hosoital of Oalles tnmat “Me was
a Peavy CGrinker Sut says Fe Stcoped two sontnhs ago.” Pesoorc-
ents’ Exhibit $7).
Findings of Fact and Conclusions of Law
In efriving et 8 decision ifm this @atter, it i:8 sell-
settled thet the feet-finder is entitied to dgetereine the
credibility of the witnesses, to weigh the evicence enc draw
Ais own inferences from it, end Fe i8 et Bound to secest
the cpinion or tnmeory of any particular sedicsl examiner.
Sascent »v. Matson Terminals, Inc., 8 8RBS $668, 398 No. 77-597,
T7-STTR (June 30, 199B); Tranct wv. Avoncele Smipyercs, Ine., &
-
4
BRAS 698, BRB No. 77-103 (August 22, 1978): Bank ». Chicago Gras
Tr.ewers Association, Inc., 390 U.S. 354, S67 "TFET, ren.
genied, 397 U.3. 929 (T9SB): Toes Sn.overss +. Sonoran, STE
F.23 761 (Stm Car. 1962). At the outset it further must de
recoonizes thet ell feetusl soubts sust se resclrec in favor af
the Claimant. Whreatlier ». Adier, 807 F.2¢6 307 (0D ’
Strachan Shippino Company +. Shes, 396 F.20 $27
cert. “genes, Sate wave Furtheresore, it “as ¢
:
Ste
in favor of
Been meld that the Act must be construed liberally
tre Claimant. Voris _ Eikel, 385 U.S. 328, 333, 78 $.Ct. #8, 98
Beitton, 377 F.20 146
L.€6. $ (1953)3 3. Vozzolo, Ine. v. Lon 7 ¢.
-1&.C. Car. 1967). + Ket orovices 8 oresumption tmet s claia
comes within the provisions of the Act (33 U.S.C. £920fa)).
This Section 20 presumotion “aoolies as such to the nexus between
an emolcyee'’s malacy arc Mis emoloymert activities a8 it does to
amy other espcect of a claia.” Swinton v. 3. Frank Kelly, Inc.,
$$@ F.26 1075 (0.C. Cir. 19767, gett. senied, S7F u.s. #20
(1976). To rebut this oresumption, the emolcyer ust .ntroduce
sbstantiel evidence to the contrary. Gutier .. Dretriet Parking
Manscement Co., 363 F.26 682 (0.C. Cir. 1966). Furtherscre, one
must introduce facts, not speculation, to scrvercome the pre-
Sumotion of compensadility. Reliance on 8 mere hypothetical
Srsdatility im rejecting a claim is contrary to the presumption.
Steele +. Adler, 269 F.Supp. 276 (0.0.C. 1967). I/
V/ Based upon the Fumanitarcian sature of the Act, the
Aet .8 to Pe interpretec liberally in favor of Claieants and
Cisimants sre to be secorded the benefit of doubts.” Oarvid ?.
Herrisonm v. Potomac Electric Power Company, 8 BRAS 313, 4,
Yo. 78-139 (May 30, 1978).
rely Of ALS Gen SOSserrvaetions. Perins
Altmougm Section 20 contains several sresusstionrs, sneluding
the oresu@oticn of causelity, there is 76 sresuns:
Cla:@ant suffered an injury. Percy L. Murpmy vw.
scan Mutsel Insurance Toasan., + 88
No. 762819 (February 28, 1978); Wwasizer
1988), e¢
i -
m tme Claimant to srsve
the presusot.con of causality
@ if @ case such 88 this Secause
2
ar ifjuty Sefcre the presumption can arise.
2
Moreover, if considering the issue sf ceusel relation-
smico, Claimant mas tne benefit sf the lesislative policy fascorine
awarcs i” arguable cases. ‘his Aceinistratise Law Jucce is bouns
Sy lonmestanding rules of judicial construction thet the statute
smouls be construed liberally in faver of cilsimants and that
CGoubts smouls be resclved in their favor. Seinton, supra,
at 1086; Py vw. Adler, 407 F.26 307, 3139531 1B.Ce if.
968): Jases + ennan +s. Betrlenew Steel Corsoration, 8 BPRS
‘Ta Fetruary 14, 1978). “Swinton Folas that the
Act presumes a le: Within ats sSions, if the
aosence of sudStantial evicenrce ts tre contra
2/ =This presueption of compensadility sces rot aoply to @
Claim that Gisadility is cermanent ratrer tran teecorary since
tme issues of nature anc extent of Gisadility are quite properly
sitagated without the benefit of the oresuestion. Davis ®.
Sarrison wv. Potomac Electric Power Comsany, 8 anes STY-
7-139 titay 30, 1975); Eleoy A. Lewss v. Sun Shipbyileine ene Ors
Dock Company, § AABS 6i3, O88 77-388 (July Ze, 1998): Muni naesen
v. Sun Sripbuildin ang Ory Ocek Company, 8 A8RS 14], °C.
77-246 “Maren Sl, re
gust rebut the oresueption orims facie with Sub-
rveiling evidence. Id. at 081. For thet
: urt of Appeals cited Del Vecchio +. Sowers,
296 U.S. 280, 286 1935). Del Vecenic stance ss the Unites
States Suoreme Court's last extensive analysis of tne Section 20
tre escloyer
start.a. Sy
presusptions. Hence, it i8 Banding on all acministretive ans
judicial gg rather that oversee the Act. The Del Vecchio case
: , : =e
acclies the ‘Sursting bubble’ theory of presumptions to Sectson
20 of the Act. capes ne to that theory, ‘the crly #ffect of 8
sresu@stion is to shift the bsurcenr of producing evisences with
regarc to the sresumes fact. If that evicence is produces Sy the
aceersary, the oresumption is spent anc disaopeaers.' McCormick's
Handcbcok of tre Law of Evicence, $345 st 82! (26 ec. 12).
"Ence the e@o.cyer 788 Carries mis Surcen by offering testisony
sufficient to justify @ finding . . . [opposed to tne presumes
fact), the presuection falls out of the cease... . tits’)
only office is to control the result where there is an entire
lack of competent evicence. Oel Veecnrio at 286.
"what tnhe Swinton court found wes treat tre Ceosuts
Sicrer Pad failed to accors tre oresumption sufficient rescect.
The court said, ‘We sre setisfieo that if the oresumpt iv nm Rec
been “srorec, tre Deouty Com*issioner would Mave Sac to fing that
it was ct crvercome by sudstentiel evicence.’ Swirton af 1081-
1082. That is, uncer the Del Vecchio test, the esolover han
fa.lec ts rebut tne oresueotion.” Brennan, supra. at 423-626.
What constitutes substentis! ervisence denencs ucon tre
facts anc circusstanrces of each compensation cleis, escec.aliy
the Clas@ant’s credibiiity. In Charles F. Etmnier v. Generel
Dycamics Corporation, # 88S $7$, BFE No. ‘S-28) cu.» 20, 1978),
tne Eene’its Feview Soerd, in affirming denisl of a cla:@ unner
the Act, ruled treat an Acministretive Law Jucge proveris cone
Siceres the testimony of 8&8 OMysicisn if conclucinea that tne
Emcloyer mac ciscellec the Act's Section 20(8) cresueption that
the clai@ comes within provisions of the Act and in concluding
that the sissedility was unrelated to the accicent. Tne Claimant
hac contenced trat the omysician did ot examine the ()aimant in
person, 4i¢ mot attempt to ascertain the accuracy of Cla.mant’s
ecicgent Pistory taken at Employer's infir@ary anc that, tnere-
fore, Mis testisony should Fave Seen disregarded. The onmysiciean
based 718 opinion on all available evicence of Claiesnt's con-
Gition and «knew all the pertinent facts. Otnmer tran a enhert time
for necessary seciceal attention, Claimant lost no tise from work
Gue to the injury until February 24, 1976, at which tise Ciaisart
su’ferec a gracd @a] seizure.
Once tne Section 20/8) oresumption is ore:come Sy the
antrocuction of suBstantial evidence, the fact-finder oroceeds to
@.aluate the evidence introduced by the ocarties. irs.elers
Insurance Co. ». Seisir, 817 F.2a 297, 301 m.6 ‘tet Cir. | ;
T Tereiral ene Stesedorin S$ pees 151,
SWE Se. 18-TST "lan.
erce is tef. ned
as “sucht relevent es séence a8 8 reasoradlie find *.ant acceot as
D-12
elite
acecuste to support es conclusion. "Universal Camers Coro. ».
“L928, 360 U.S. 474, 477 (137£1); Consolicated tdison Co. vw. WARS,
THT u.S. 197, 229 (9938); Steele v. Adler, 769 F. Supp. 37%
0.0.€. 1967); Se Nienmilo v. Dhisersal Fern: .2al_ anc Steve-
oring Co., S$ BRAS T23, SFB No. 76-327 (Aoril 1, TIT) The
Statement in the Act that the evidence to overcome the effect of
the oresu®otion must be substantial adds nethine to the wel)
understococ orineiple treet 8 fineina must be supported by the
ev..cence. Croweli v. Bersun, 285 U.S. 22, 8&6 (1937); Avignore
Freres, Inc. wv. Caraiifs, TI? F.20 385, 386 (0.C. Cir. TS6G7;
AS Noble Orilling c Corp., 397 F.26 392 (Sth Cir. 1968). 3/
in er aluets AQ this evidence, a8 indicated above, | Save operated
uncer the statutory pclicy thet a1] doubtful faect—questions sre
to be resolved in favor of the injurec employee because the
smtent of this statute is to place the burden of possible error
om tmose Dest able to cear it. Young & Co. +. Shea, a Bids.
statutory policy claces a less Stringent burcen a? pSroo the
Claimant then the “preporcerance of the evicence” ssaeaese chon
8 applicable in A civil suit. Stracnan Shipping Co. +. Srea,
806 F.2¢0 521 (Stm Cir. 1969). 4,
After Paving rev.ewed a1! of tre medical evicence anc
other record evicerce in this case and Having cbserses tre
demeanor of the witresses, | find treat Respondents rare sntro-
Guces sudstaentiel exviscence to rebut the Section 20/8 ore-
Sumot.on, thet the sresumoticn does not control the result merein
and I will mow procees to weian all] of tne evicence, resolsinse ail
Soubts in favor of the Claimant rerein.
Section 12 of thu Act requires the Employee to give written
netice of an injury within 30 seys to both the Deouty Commis-
Sioner end the Emplover. Section 12(8) orovides as follows:
Notice of an intury or death if respect of which
compenssetion is payable under this Act smell be civen
-
3/ TRIS Oresumotisn that emolovment caused the disability
for which the claia .s Brsuont say be rebutted without showing
any other cause of the iriure. Thus, the Perefits fer,iew Aoarad
affirmed @ decision rat the oresumption is rebutted based on
evidence which i8 Substantial out which does not show the cause
of injury. Lovel VW. Cersver vw. Potomac Electric Company, 8 BRAS
43, 888 No. 772 aren » 1978). :
a’ Other cases es 7er2.9 the Benefits feview Soard ras
affirmed Gecisions dismiss.rg compensation claias because
tre Esployer hed successfully» rebutted the Section 20 ore-
suneh none Major f. sarren ». Internationel Great Lekes Shi
oeoers an Rerican Mutual Liedilit "surance
5008S TU, BNE Ne. 44-078 (Mey 73, 19777; Joseph ©. Wirby Sr. +.
Marriott Corporation ana Linmerts Mutual ‘toanshoan Coankh - § Beas
Ton, Sam No. Te-0%8 “a, 7, $977) cn
within tmarty Gays after tre cate of $
deatm, or thirty cays after the emolsc ee 2
iS aware or in the exercise of reasonable cis.igence
srouls "ave seer aware, of @ relatiorsmio Setweer 6%
injury of destnh anc the ewolscy,sent.
Section 138) crevides i Sart:
rsviced sf this section, tre
filed within one yesr 4% °
Tne time for filing a cles@ shall sot Segin to run
urtil tme emolovee of Dereficiaty is aware, oF Dy
exercise 3 reasoradle c¢ilicerce smouls “ase Seer
aware, of the relationrshis Setween the injury of ceatn
and tre emoloysent.
In apolyina both Section 12 and Section 13, it 18 well-
recvanized that the 4et is to de liberally construed 19 Con
fo-mance with its Deneficent anc Sumanitarian Ourocses i” 8 wBy
eP.emh 3a83id8 Marsnm and incongruous results. Voris wv. E.tel, 346
J.$. 32h, 333 (19S3) Kenneth w. Simonson +. TiS .ce Engine and
Mezr.re dorks, 7 AAAS 10M, 102, 8PB No. 76-355 ‘Veceader i},
ak LAE A 2 AS
Section {t3 was rot intences to orovice @ tecnrnics, cev.ice
te relesse te emsiscver anc insurer from their obligetionrs, Sut
merels t& prevent oreiucice to thems from tme entertainment of
stale claims. Ingalis Shipduilding Division, Litton S»stems,
Ine. we. Moblsnneed, $71 F.26 272, th Cae. 70). tris
statute of limitations was cee.crec *9 itsure fairness to te
emclover. [ts purcose 18 to orevent tre revival of stale ciaies
«bere "ev.derce mas deer lout, semories Mave faces anc witresses
Rave diteocesred.” Belton v. Traynor, 381 F.26 82 (atm Cir.
1967).
The statute of Limitations contained in Seetion 13 of
the Sct i9 #3) ‘atory anc comol.iance trerew.t” "es seen tereec
"surisdicetisanel. Sun Smipduilding ance Ory Dock Co@ceny +.
Bcuean, $07 F.2¢ 186 — fro Cir. I Ae tne Statute of
Jim.tations has run, the Surcer of proof falls uoor the cla:sant
to s5o" an excuse for Fis celay im filing Mis clai@ enc tmet tre
enmolcyer Mas sot been oretudived Dy the delay. La Londe +. Guif
Oii Coro., 317 F.S$upe. 692 (#. O. Le. 1970). Stherwise, "is
clais sust be t.@e-daerrec. Igncrence of the lew does net con-
statute a viable excuse for filing os claim after tre limitations
oe: 10d Mas eroired. Le Lonce, suors.
Ss oc ev.ousl» reted, Section i3's) orovices thet te tise
* tation Peains to trum emer a claimant is aware of should "ave
eer aetie of @ reletiorsmio Between "is injury enc Fis emoloy-
cent. Inturs is @efired in Section 2/2) of tre Set to include
elas
occusetional c.sesse. See 33 U.S.C. $902/2). Truss, the erucial
Question for ourseses of Section i3(a) is when did Claimant
pecome aware of a relationsmic between “is “ycertension enc fis
emolc,ment. In Stark wv. Locknees Snioduilding ang Construction
Co., S$ BABS 186, SRE No. TS-253 Deceaver 4, 19°95), tne Moera
extensively analyzed the searing of the term “aware” a8 it is
used im Seetion 13(e) of the Act. The Boarc concluded that in
cases of sccucetioral cisesse anc latent injury, “aware” seans
"to Mave receis,ec «nowlecge of the work-relates ature of tre
mant’s condition from @ smysician or other competent disce-
nostician.* Stark, vores, et 195. Tne Soard further toncluces
that the omrase "or in the exercise of reasonable diligence
smould Mave Seer aware” places a cut» on the claimant to seek
Ziagnostic confirmation of the nature anc cause of Fis condition
Sut that this cuty coes ot arise until claimant sas reason to
Selieve that tre condition “will or may well reduce Fis «ace
earning capacity.” Furthermore, once a claimant mas cbta.res a
orofessiconal diagnosis, e will be considered “aware” for sur-
soses of Section l3(a) anc the time limitation of that orovision
will Bbeoin to fun. See Stancil v. Massey, &36 F.26 274 (N.C.
Cir. 1970); Mesninoten v. Cooper Stevedoring of ta., Inc.,
356 F.2¢ 268 (Stn Tir. 1977); Merojet-ceneral shioyeros, inc. sv.
O'Keefe, 13 F.2a 793 (Stn Cir. 1969), 37
However, the Act also sets forth an exceotisn to Seciion
ila. Section 30/8) of the Act, 33 U.S.2. 8930/e orov.ces
tmat tne emolover eust file @ report containing certain soecifies
a
snformation within ten seys from the date of the iniurs °
Gays from the cate eeoloyer nas knowledge of the sAjurs. Seetion
30(f) of tme Act, 33 U.S.C. $930(f), provides that af the ese
Disyer “ac mnowlecce of the injury, failure to file the resort
recuired By Section 30/8) will toll tne Section 13a) limitation
period recgarcless of whetner the claim would otrerwise be
Derrec. 6/
S/ The gate on which a claimant is informed 5, Fis doctor
of the relationshion between Fis work ana ris SGisaedility is
sanmaficemt Sut it i8 mot always controlling, essecially wnrere
“Mere i8 otmer evicence tmat claimant was aware, of in the exer.
cise of reasonable diligence snmould nave been wade aware, of tris
relationsmio at an earlier cate. Harols Sicwer, Sr... Mung
Marine Company anc State Insurance fund, 6 SHES s6n, S32, BPR No”
17-270 ‘Koril 27, J+ Morris W. Vaugnan +. Masmington Metro.
politan Aree Transit Autnority, * BRET 26a, °. >
Veceabder , de
$/ An employer must mnow of the relationsnio of the enmoloy-
vert fo an intury or iliness in order for the knowledce require-
ments of Sections '2/¢) ana 3O(f) of tme Act to be soolied
acainst te ewolcyer. Strachan Shisong Company, et a1 5. willie
Dev.s ong Oirector, Ow ar) ; RAS fof (Sem Car.
1978).
Ais cese does rot involve en’ incorrect discnosis of 8
OBhySicien wAiemh would, if effect, ¢ 1 the stetute of lieie
tations. If tre disanosis were incorrect anc tre Claieant relies
uoon st, then the one year statute of limitations coes rot beain
to rum until the claimant “reelized, or smouls "eve first resle-
ized, that Ais silent was jod related.” Sun Smisduilding
and Ory Dock Company wv. Bowman, $07 F.26 46 "3rd Cir. i ;
Pillsbury +. United Eng.neering 6o., 342 U.S. 197 (1952); Stanesi
v. Massey, Suors; washington +». Cooser nam egeorin svuors;
Bernice Jacmwson v. Navy Exchance Service center ane -ommurit)
Union insurance Company, 9 SRES O37, nO. 235 ‘Deceeber 22,
i978).
fa
)
In view of the foregoina, | conclude anc fing treat Cleisent
became “ewaere, of By the exercise of ressonreble ciligence
smrould meve deen ewere,” Sesec upcn 8 srevfessiorel opinion of
@ secicel doctor on December 7, 1976 (‘Claimant's Exmidit 4), treat
me med intermittent lebile Aypertenrsion and, conmseaquent!,, tre
Section 12/8) and i3(a) time liwitations startesc to run et tret
time (1.@. SOecemoer 7, 1976) I further find thet Claieant’s
claim for workmen's compensation penefits on Auveust 2%, +978 wes
mot timely filed. 7
However, 889u%iNG, ersosuvenco, thet tre cleie "erein was
t.mely filed, § will now consider whetner Clai:waent’s “yoertension
anc Giedetes seliitus are comcenssdie cisadilities uncer the
Act.
Basec upon the totality of the revorc, I coneluce anc fined
that Claimant's dciebetes sellitus was irst rescrted in writing
by Or. Ounn on Apres] 13, 1978. On Mecember 7, '976, at which
time Claimant's mycertension was first diagnoses, it was aise
reportec that Claimant's routine ladoretcr, exs@inations, €EC6
anc EEG were normal. I also scceot the ciseqresis by Or. YV.
Zaigrserf, on Fedrusry 9, 1978, tre Claimant mad essential!
Mypertension, @yocerdial strain, sliomt eirrmosis of the liver
from alcomol intake and was sverwe.ant at 219 sounds (Claimant's
Exemidit 7). At this time Claimant was oleces on @ strict diet -
- "no fats, 20 saits, so spices, no sleone!.”* I saeceot thre
@.,eancsis of Or. Sunn tmat Cla.mant rad diabetes baesec uoor 8
OMPy»sicel examination on February 27, 1978 Claimant's Exunidit
10). Gm Marcnh 17, 1978 Claimant advises sedical sersonnel at
Presdyterian Hosoitel of Osllss tnat re rac intentionally lost
twenty-two Sounds while working in Israel. Pesconcents’ Exni-
7/ 1 am aware that an employee need not notify mis employer
of a Compensable iniury in accordance with Section 12/8) of the
Act "until he knows of reascnadl» should know that he “ss ree
ce.sed an intury, |Orising in the course of emolor,ment, trat
disables hie from future employment.” Bath iron works Corse.
ret.on and Commercial Union Assurance Company +. saves ©. Galen
and Director, OWCP, 605 F.26 S83, 10 HRMS 86% (tet Pir. i979),
D-16
-~l6-
Dits $7). Therefore, i find treat Cleimant, while workinra if
Isreel, weiches ss such a8 232 pounds, weight anich wes entirels
too Pesevy for Ais Bodily frame (See Clainart ' t
pPotoarson of the Clei@ant end others in front of ¢t
Mission).
2 secept the opinions of Or. Rooert &. North, an eminent
snecielist if cars.sovesculer end internal medic.nre, eho w8s
Subtected to excellent, thorougm end seereninag cross-ervaminc’ ion
era who testifies fortmrrigntliy treat Cla.sant's intermittent
Mypertension and eile disbdetes sellitus were ot enplo,sent-
related end could rot be attributed to Ais Gecupetion, Mis diet,
gecorsonricel location of work environment, treat me (Or. Nortr
Gicd met find any prysicel isspeirment which would srecluce fis
return to Fis previous employment, thet disdetes sellitus is an
somerited diseese, tmat Claimant's Mypertension «nd aild diedetes
were under control By diet end medicetion, trast Pigh Bisco
oressure ser se 18 "Ot 8 disease anc coes "ot cwuse Cisadility,
thet Ayoertension end cgisbetes become clinicaelis saovarent 1°
*".Ccle-ace y»ears anc trat leiment even if Fe "50 remeires if
Soutm Teses wsculd ave sevelocec the same orsbless at te sare
time. becouse “(ibn tmet resoect, it 'S Ais sestiny.” ! siso
acceot Or. Yortn's CifPion thet sdequete oMrysical setivsits ane
exercise sere vetrocs used to control Pyoertens.c% ant 4.adetes
mellitus. Therefore, Cla.eant’s senual laedor 913ht seruall. "ase
med 8 tmersceut.c effect. instesd of tne sllecec sepil.'sat.°7G oF
eacravetiosg effect claises merein.
I else scceot the disanosis that Claimant Pad extrese
enziety end thet this condition, tocetmer with “16 family orcd-
lems, and isolated living, tne I.R8.S. sudit anc sersonsi living
mebits, escecislly tne excessive use of sicomhol end *:.8 cbes.ty
contributed to Fis Bypertensive condition and dishetes sellitus.
Furtmermore, it i8 noted tnhet Claimant's lest two attac«s
occurred shile me wes sway from tne Sinesi Fieia “Mission snd if
Tel Aviv, @Njorving Ais week's vacation at tne "8 & &” Fae.tity
Oroviced by the Esolcyer. hile it say be merely coireicertal, |
find thi18 to be most sionificant, especially in view af Bis
86MiSSi0M ana.cst interest, sf 8 Bedical Mistory recort on Maren
17, 1978, thet “Re was 8 Fesvy Crinker” But stopper two aortas
ago (‘Resconcents’ Exnibit $7).
I elso credit “er. Kapole'’s testimony a8 to conatruetion
anc functioning of the Sinai Fielo Mission, the rature cf Claine
ant’s duties there, the meals provided, the climate it tre Sires
and the work environ@ent. Furtherore, | also credit “er. Fera’s
testimony es to Claimant's drinking hedits while “sr. Tord was
tending ber at tre lounne.
I also sccept Or. Black's scoinions tnret Cisimanr’s eure}
locicsal examination was coreel. I eredit the op.2ienrs cf Me.
Soitzdera thet he could find no evidence of urnanis a.sease,
that me could mot cetereine an eticoloay for “is ershliems i
Israel enc that Cla.eant is in reasonable meait™ far s.8 ace.
aware of the well-setties soctrine tmhet an eolsy-
"se is” end if the workeen Pes 8 OFre-ezistin
er
con accelerates, agore.etec or which sanifests
stself as the result of exertion incicentsl to the work required,
@ compensable injury results e-en *7ouGn such exertion @8y fot
rave Marses 8 person not suffering from the sarticuler infireity.
J. 8. Vozzelo, Ine. v. Britton, suors, at 148. “Also, the
acaravatian of the Sre-exsSting Mack coMditioM My the ‘insult’ to
the Cleimant's Seck which erose wut of and in the course of
P.s employment constituted isnmiury urcer the Act.” Jonn #.
Basins: +. 1.7.9. Corooration of Salitisore and Liberty Mutusi
Tasurance Comcar,, © Shes ‘oe, © No. reel) Sruery cf,
THIET ae Fot cersuacec tmat tne recors before se contains any
Such evisenrce showing ceuselit, seteeen Claimant's present
problems anc Ais emolo,ment. 1, tmerefore, find treat Cla.eant
suffered no compensable injury emile employed by E Systems.
the Benefits Review Boars pointec sut if Lennart V.
Betmrlenem Steel Corssration, $ 8898S 486, 488,
sune <0, 19-8) cl elMart § ewclo,wert with Betmlenee Steel
Corporation only furrismhes 8 convenient occasion to demonstrate
to Claivent that Ais severly» (sit) advances segereratise ostec-
artrhe.ts sPvolwing beth knees wili 26 Longer tolerete any
"furtmher we.grt-supportine sctivit>, savticulerl, clieBina verti-
cel leccers, comserssticon sust be and is Peremy cen.ed.”
.
fot of an oceevpeticrel cisesse i8 sotly» e@zoresses
by the followsna quotsetion:
"It s8 mot the intent of tris statute to ereste 8
general resltmh snsurence orcocoree. Tre sinelusion of
eccupetional dgisesses is liaites to seladcies resultinea
from working conditions emich ore veculier to tre
calline and sre more aezercous "78F those encountered
in ordinery living.” Collins «+. Laceland Arey & Air
Force Excrnance Service, es 4! {
1975.
Or the Pasis of the totelity of ime sedicel evidence and
other record evitence and Paving ocBsersed te scemesnor of the
witnesses, i find ana conelude that *
jassant’s Pypertension and
Giabetes mellitus were not causec, triageres, scarsvated or
exacerbates Sy» Mis employment sr the wore environment. I
furtmer find ane coneluce thet Cis.s@eart’s Aypertension and
Giahetes wnellitus would mMawe octurres irrespective of Ais eapley-
ment im the Sines anc would Pave recurred had he remained in the
United States working st an secucation rer subject to the jurise-
Gietion of the Act. The diabetes sellitus is the neturel oro-
gression of the Claimant's ore-d.sxcesitison. To use Or. North's
words, “".t's Mis sestiny.* There .¢ 0 credible evidence that
Cla.rant’'s Mypertension is work-related. It 18 probably the
result of Mis lenmgtmy isclation from m.s family, the 1.8.S. gudit
ard Mis persoral living Pabits.
Altmouon Cleimant properly seraves that the Act
be interoreted libereliy, it 18 well-settied trat “slain
of tne statute s8y not be disregarded under the guise of
pretina it liberaliv.” E.kel v. Voris, suors, et 333; Pillsbury
vw. United Engineering Co., saa U.S. 197, 19$2).
Based voon the totality of tne record and tne forecoing
Findinos of Fuct and Conclusions of Lew, it .8 determines treat
the claim sust ne gen:izvd. As 1 Fave ruled that Claimant mas not
Sustained 8 comcersahie cisebility under tne Act, Mis attorney is
mot entitled to ar ettorne,y'’s fee essessed acainst the Pesponc-
ents.
OROER
The cleie for benefits under the Longshoremen's and Haroor
Workers’ Comoensation Act, a8 extencec by the OCefense Base Act,
filed by Howard %. Clyser is mereby OENIED.
“ved Uo fh eabe
Administrative Lae
Oated: Novewtsr 20, 1979
New Orleans, Lou.siane
OwO:rls
At.18
D-19
o-
CERTIFICATE OF FILING AND SERVIC
l certify that on December 5, 1979 che foregoing Compensa-
Y
tion Order was fi} in che Office of the Seputy Commissioner,
Lighth Districe Office and a scopy thereof was
mailed on said date by certified =ail co the serties and their
Aare
representatives at the last xnown address of each as follows:
Yowaré Clymer, «292 Colgate, Garland, Texas 5042
eTalmane ee
. A "*” - ** - . “As
Liberty Mutual Insurasce Company, 2530 Yalnut #111, Salles. Texas 75229
pacyer | $4a.?-insur
A copy was 8180 sailed by regular mail to the following:
Judge Savie Di Nard , Office of Administrative Law
Judges, S. S. Separtment of Labor, Washington, 5.C. 202106
Associate Solicitor of Labor for Erployee Benefits,
U. S. Separtment of Labor, Suite w-2716, NOOL,
Washington, 0.C. 20210
Director, Office of Workers’ Compensation Programs, (LHWCA) ~*
U. S. Separement of Labor, Washington, 0.C. 20211
Samuel Bove, Esquire, 5746 LB Freeway, Oalias, Texas 75160
Jomm Sililam Payne, Esquire, 17°90 Republic National Bank Bidg, Callas, Texas
Deputy Commiss.cner
Lighth Compensation Oistrict
e Be tment of Labor
EMPLOYMENT STANCAPDS ADMINISTRATION
Office of Workers’ Compensatioa
Prograzs
Rev. Aug. 19
APPENDIX E
OMS *toprerel Neo. 8
i. we awe of teem a Ti. Core var ome eyed vivewrers tenng he ween saree?
sop yet Whew SP occupy. tease mani festationl/ 78 Tse Dies [it “Yen” sere here and when 0 reverse!
— ----—- -—-' - - -
Th. Caer piece owe cc cdew eas ares (Irreet oddrens, Oy, owe Name of rennel, a
Sinai Suffer 7one
oo, tormad, ofa)
Pe ee re ee er
ompered wae tang he me of Me ott dont
(4 seeded, continve ce coverte) Om Jan. 30, 1978 Mr. Clymer vist
Aviv Israel at which time his condition was diagnosed as
rered lode
ay cd tehe daa, the work environment 6 diet provided
ore. 1f teeve wee elesee | Unknown, see line 24.
fons of see e/ oe panel me |
_ = be)
AiR relied = he mor acummnneg cuasig fel whe me
mopered end New 1 Seppered. Meme any sheets oF tebelertes om
vol ved end teil haw they wore semlved Cire fui! dore's on of! (enters wml ah lod or conmrbuted © (he erarden, If mare spase i
ted Or. Chais Feldean in Tel
>ypertension & coronary in-
tse ges aoe Jatoba 2 M2. Pichardscp. lex. diagnosed bis socdition J
Monwe of avery Nome part as ae ~ possible diabetes; disabilitivs attributed to
by the employer. (See reverse
side)
--—
~~ . oc? we |
EMPLOYEE'S CLAla ome )
Te 1 Om PeCew ewe
FOR COMCENSATION ore €@ Of weoeetes oath - . =z 1
‘> $88 (MSTRUCTIONS Om PEVERSE C
’ Ce ee oor Somer (iene der row!
gee ey P 2 . oe ‘wari festation of ais
(Troe er print, f pats rif tas firse reported 1/78
4. Ceement’s addons (Member, srreet, erry, etere, 2/7 eter 6. terre vores
4202 Colgate, Garland, Texas 75042 Married
?. tee t see & tee of eee # FOC a. SECUOITY weeee 0. 56 mer cowee (one of tome
Man den seer (Met reqwred by en dover doy or veel of eeedenr?
Tuco — owe Aug. 1, 1929 458 34; 1109 mre OC
eee -t—st— - ———— --<
1). Ge tore + “eer boge -oe » how of crete % 0-6 row 190 ware 2. Sere ond “ow poy Hieened
ea ed — a _ - oe eor. , Cam Cem,
— —_ ** —_* * ee foe Oe tes se 3-)1-78 — —
1h Deore ond Mow pew ererred 6 wee 4 Seeeeere (Jee le lenmpetere martes, ‘5. apered om le Gorng ogee ware!
‘ ioe } Cre Te
Still off ; indefinse En7 heating Mechant - ~_
4uratios (11 “Me,” esplere -« ltem 24)
a) wend “et % Cooely ‘& ICSE RT STEERS ” wie Catena SST Ser S i
rae cllewenaes. ere.) ; 6 + $24,480.00 Gr So this
10. ember of peers paw worted |%. Samter of dors eewelly worted re c.ai8
mea et =o4 weatbsiar sé. c P) Wheatley _— =
a a ee see reverse ,a~ Cre
ar ae mt, pe
oniy” "peecial ac attention. {nscrancé carrier “coneed
Assideancé without cause in “arch, 1978.
FO Cee eet commen por dod by emprore!’ = bce cen out! Gecbied on esses of ane ™
17 Were pew wemred by © ohyernren of vom
once returned to U.SL
| y Bree Com employer,
tmmee?
ire thru 3/78 | Gre 1. SS see ee |
Tepe cee wee at ome copes: ses tere ag + tem og! 32. men aeerp erited 2 prmenans 6 0ab: a9, ome Or mo eee
Cte. Eat (Ton wee doves 00 reverse) eh ewwrenenr? Li tor (Oovende on revere! S- =
Beme 6 angers ‘Sd -aew © i eee 34 Sere of ereere | bos - cee
t-Systems, Greenville Division a Early Warning System Sines
woe, I” ate
0. agen 5 ge Main Greewvilie. Tense TSao)
‘a Be-eOy @ene 1 co © eemeetee = teres*s comme cat eas se ee Oo
Defense Sase Act 3 A
| emt ee of 0 oom
- we ah
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