Opposition Brief — Director, Office of Workers' Compensation Programs v. Greenwich Collieries

ORY

Nos. 93-474, 93-744

veme Court, U.S

Pree

IN THE DEC 10 1993

Supreme Court of the nited Sioits OF THE CLERK

OCTOBER TERM, 1993

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PASQUALINA SANTORO,

Petitioner,

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MAHER TERMINALS, INC.,

Respondent/Cross-Petitioner,

—and—

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS UNITED STATES DEPARTMENT OF LABOR,

Party-In-Interest.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF RESPONDENT/CROSS-PETITIONER

IN OPPOSITION TO PETITIONS FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

JOSEPH T. STEARNS

Counsel of Record

KENNY & STEARNS

Attorneys for Respondent/

Cross-Petitioner

26 Broadway

New York, New York 10004-1882

(212) 422-6111

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TABLE OF AUTHORITIES

STATEMENT OF THE CASE

STATEMENT OF JURISDICTION

TABLE OF CONTENTS

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STATEMENT PURSUANT TO RULE 15 OF

PERCEIVED MISSTATEMENTS OF FACT

AND LAW

ARGUMENT...

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THE ORIGINS AND ERROR OF THE DOUBT RULE.

CONCLUSION

PAGE

19

28

TABLE OF AUTHORITIES

Cases PAGE

Addington v. Texas, 441 U.S. 418 (1979) ...........65. 8

Atlantic Marine, Inc. v. Bruce, 661 F.2d 898 (Sth Cir.

LI errr —“—S—SSSSS 18

Avondale Shipyards v. Kennel, 914 F.2d 88, 90-91 (Sth

Cie. 1990) ....ccccccccccccccseeues en enennnnnnnnEEE 10

Baltimore & Philadelphia Steamboat Co. v. Norton, 284

U.S. 406 (1932) ....0000000ccs0e005uene en 18

Barnson v. U.S., 816 F.2d 549 (10th Cir. 1987) ....... 28

Bath Iron Works Corp. v. White, 584 F.2d 569 (1st Cir.

1978) .. .cccccccvcccecesseee see ue heen innnnnnn=InE 10

Betz v. Arthur Snowden Company, 14 BRBS 805 (1981) 2,9

Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046 (Sth Cir.

Lk) 18

Calbeck vy. Strachan Shipping Co., 306 F.2d 693 (Sth Cir

19G2) ....ccvccceccccccceseues eum s nian 19

Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469

(1947) ....ccccccccccseeesess een eene nena 20

Charlton v. FTC, 543 F.2d 903 (D.C. Cir. 1976) ...... 6

Consumer Products Safety Comm. v. GTE Sylvania, Inc.,

447 U.S. 102 (99GO) ....0ccccvcccessuneueeeneneeeee 28

DelVecchio v. Bowers, 296 U.S. 280 (1935)....... 20, 26, 28

Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256 (1979) ....cceccccceccsedssunnenneann 29

ill

PAGE

Eschbach v. Contractors, Pacific Naval Air Bases, 18\

nn ccc ceccceses 19, 20

F.H. McGraw & Co. v. Lowe, 145 F.2d 886 (2d Cir.

Fidelity & Casualty Co. v. Burris, 59 F.2d 1042 (D.C.

akan cc ascccceésccescececocces 19, 21

Freeman United Coal Mining Co. v. Director, OWCP,

CE 28

Gober v. Matthews, 574 F.2d 772 (3rd Cir. 1978) ..... 16

Gooding v. Willard, 209 F.2d 913 (2d Cir. 1954)...... 19

Greenwich Collieries v. Director, OWCP, 990 F.2d 730

ees scccccesceeces 4,6, 12, 17,21

Gunning v. Cooley, 281 U.S. 90 (1930)................ 24

Hensley v. Wash. Metro Area Transit Authority, 655 F.2d

a ie os occ cccccececcecees 10

Hughes v. Dist. of Col. Greater Wash. Labor Council,

SS UME oc ccccscccccccccccccces: 29

Independent Stevedore Co. v. O'Leary, 357 F.2d 812

EE 18

Lincoln vy. Virgil __ U.S. ___, 113 S.Ct. 2024 (1993) 28

Martin v. OSHRC, 111 S.Ct. 1171 (1991).............. 6

Mid-Gulf Stevedores, Inc. v. Neuman, 462 F.2d 185 (Sth

ELE SEES EEE EE 10

Mobile, J&K.C.R. Co. v. Turnipseed, 219 U.S. 35 (1910) 17

Morrison-Knudsen Const. Co. vy. Director, OWCP, 461

EE ee 29

iv

PAGE

Mullins Coal v. Director, OWCP, 484 U.S. 135 (1987) .9, 27-29

New York C.R. Co. v. Ambrose, 280 U.S. 486 (1930).. 24

NLRB v. Columbian Enameling and Stamping Co., 306

F® FRC. errerrrer, 6, 7, 22, 23. 24

NLRB vy. Transportation Management Corp., 462 U.S.

Pe GP had dccsvaneeseneceateteseceséancconstaandan ae

Noble Drilling Co. v. Drake, 795 F.2d 478 (Sth Cir.

Pues tknednavccenectoceseceuswnussedes 10, 24, 25, 27, 28

Parsons Corp. of Cal. v. Director, OWCP, 619 F.2d 38

SNES HEED kcndnccecccuscscedesecusecnednssconc 10

Patton v. Texas P.R. Co., 179 U.S. 658 (1901)......... 24

Southern Pacific Co. v. Sheppeard, 112 F.2d 147 (Sth

Beh HOPED ccceccnccBnscnncccnncagunessneerseesssin< 19

Southern S.S. Co. v. Norton, 101 F.2d 825 (3rd Cir.

Sprague v. Director, OWCP, 688 F.2d 886 (Ist Cir. 1982) 10

Steadman v. SEC, 450 U.S. 91 (1981) ................. 3,6,7

Stevenson vy. Linens of the Week, 688 F.2d 93 (D.C. Cir.

PE hdd nndensccewcctncssbnkantdeseduessescdesecese 10

Todd Shipyards Corporation v. Donovan, 300 F.2d 741

Go BONED evbcccnndcccctececscdvesasevisescscs 16

U.S. Industries/Federal Sheet Metal, Inc. v. Director.

OWCP, 45S U.S. GOB (IDBZS). . oc cccccccccscess 20, 26, 27

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) 20

Watson v. Gulf Stevedore Corp., 400 F.2d 649 (Sth Cir.

v

PAGE

Wheatley v. Adier, 407 F.2d 307 (D.C. Cir. 1968)..... 24

White v. Abrams, 495 F.2d 724 (9th Cir. 1974)........ 25

Young & Company v. Shea, 397 F.2d 185 (Sth Cir.

Pe tdcndncaddadevasescaciiiestsecessecscnnaveas 20, 21, 22

Statutes and Rules

Went DS OBA, BOGOR FSG ccc cccccesccccccccccscccccsss |

Dees DS WK. BOG FOO cc ccccccccccesscccccccevesecs 3,6

VONeD D Dele Mie DOCG FSG ccc cccccccccccccccccccececess 3,9

DeeO BS UBL. BOGS 1FS6 2... cc cccescccccccccccoeses 4

Title 30 U.S.C. Section 901 ef seq. ............0.00055. 4,21

Tithe 33 U.S.C. Section 901 ef seq. ............cccceee. l

Title 33 U.S.C. Sections 902(2) and (10).......... 18, 20, 25

Tithe 33 U.S.C. Section GOS... ..cccccccccccece 18, 20, 21, 25

Dene Fe eis I FG cove cnsvccsccccccccontsccces l

Dele SS WBA, BOGOR Fae cc cccccsccccccccsccccsccces l

DD SP Dee SI Fa oc cccccscccsccccnsccccceces l

Dele Be Wiese DONNIO GED ccccgesoccsccesccscceses i, 9. oe

Title 33 U.S.C. Section 920............ 2, 10, 16, 17, 20, 21,

24, 25, 26, 27, 28

VeeeD FS Dee BOTTI FEE wc cccccccccccccccccce 2, 16, 28, 30

Feee Be Des BONN Fo nccccccccccoscevecsoscesess 5

Federal Rule of Evidence 301..........cccccccccccgecss 20

Federal Rule of Evidence 401 .....................2... 10, 11

vi

PAGE

I le i a 5

Other Authorities

Weinstein’s Evidence, Vol. 1, Rules 101-403.......... 27, 28

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STATEMENT OF THE CASE

Petitioners, Pasqualina Santoro, and the Solicitor General

of the United States on behalf of the Director, Office of

Workers’ Compensation Programs (“OWCP”), seek review

of the April 19, 1993 decision of the United States Court of

Appeals for the Third Circuit vacating an Administrative Law

Judge’s award of benefits for Mrs. Santoro’s late husband's

medical expenses, disability and death pursuant to Sections

907, 908, 909 [Sections 7, 8 and 9] of the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C., Sections 901,

et seq. [1972], and remanding for further proceedings. The

ALJ, by decision and order dated November 22, 1988 fol-

lowing hearing provided by Longshore Act Section 19(d),

which “. . . shall be conducted in accordance with Section

554 of Title 5 of the United States Code [the Administrative

Procedures Act, 5 U.S.C., Section 551, et seq.]” (Pub. L. 92-

576 (1972)), awarded benefits after review of the conflicting

evidence on the issue of “causality” between Mrs. Santoro’s

husband's injury at work for respondent, Maher Terminals,

Inc. on July 23, 1985 and his death March 11, 1986, due to

“cardiac arrest” as “a consequence of. . . cervical astrocy-

toma” (A-29)'. The factfinder did not, however, decide

whether or not injury at work, on account of which compen-

sation for temporary total disability pursuant to the Act’s Sec-

tion 8(b) had been paid, had, in fact, contributed to the harm

to Mrs. Santoro for which benefits were sought, as a result of

her late husband's disability after he returned to work August

1, 1985 and his allegedly hastened death. Instead, the Admin-

istrative Law Judge rejected respondent's evidence denying

causal connection between employment and disability and

death caused by cancer, not as incredible or inaccurate, but

because “. . . inconsistent with the purposes and policy of the

' References preceded by “A” identify Appendix pages in Mrs.

Santoro’s petition (93-474). Those followed by “a” are found in the peti-

tion of the Director, OWCP. United States Department of Labor (93-744).

References followed by “AM” are to pages in the Appendix to this Brief.

[Longshore] Act” (A-44). Not having weighed respondent's

proof in relation to Mrs. Santoro’s evidence, the Adminis-

trative Law Judge held nonetheless: “The issue of causality is

still deemed debateable, but the doubt is resolved in favor of

the Claimant” (A-44). As a result of applying what petition-

ers describe as the “true doubt rule”, the ALJ“. . . found and

concluded that. . . disability and death is causally related

to. . . [the]. . . accident on July 23, 1985” (/bid). In his

December 15, 1988 “ruling” denying respondent's petition

for reconsideration, the Longshore Act factfinder observed

“. . . the equally probative and conflicting evidence was

evaluated, discussed and resolved in accordance with the

requirements of the Administrative Procedures Act and

the views expressed by the Benefits Review Board in Betz

v. Arthur Snowden Company, 14 BRBS 805 (1981)” (A-46).

By decision March 27, 1992 the Benefits Review Board,

empowered to hear and determine appeals “. . . based upon

the hearing record. . .” pursuant to Longshore Act Section

21(b)(3), affirmed, determining that the award was“. . . sup-

ported by the substantial evidence in the record considered

as a whole”, a decision from which respondent appealed

to the Court of Appeals for the Third Circuit as provided by

the Act’s Section 21(c). In an opinion filed April 19, 1993

(992 F.2d 1277) that court reversed, holding that Mrs. Santoro

was required—the Longshore Act Section 20(a) presumption “.

. . {t}hat the claim comes within the provisions of this chap-

ter. . .” having been rebutted and there being no issue of

right to benefits dependent upon respondent establishing an

affirmative defense—to prove her entitlement by the pre-

ponderance of the evidence.

The court of appeals considered the issues in two parts:

whether the Administrative Procedures Act “prohibits the

application of the true doubt rule” because it establishes a

standard of proof by the preponderance—something different

from whether the same standard existed prior to Procedures

Act adoption—and whether the APA also required that this

ee

burden in Mrs. Santoro’s case be allocated to the benefits

claimant. In rejecting application of a rule of doubt in Long-

shore Act benefits claim factfinding, the court of appeals held

that because the Longshore Act Section 19(d) incorporates the

APA, Section 556(d), i.e., the Administrative Procedures Act

Section 7(c), controlled. It interpreted NLRB vy. Transportation

Management Corp., 462 U.S. 393 (1983) as holding that the

first sentence of the Section 556(d), which provides: “Except

as otherwise provided by statute, the proponent of a rule of

order has the burden of proof”, refers only to the burden of

production. But it also decided that Steadman v. SEC, 450

U.S. 91 (1981) held that the third sentence of Section 7(c): “A

sanction may not be imposed or ruled or order issued except

. . . [when]. . . supported by and in accordance with the

reliable, probative, and substantial evidence” established a

“standard of proof” by the “preponderance of the evidence”.

With respect to who should bear the burden of persuasion and,

with that, the risk of decisional error, the court of appeals

concluded that the only interpretation of the first and third

Section 7(c) sentences which would not “. . . contravene the

Statute or suggest an\impossibility is one which allocates the

burden of persuasion to the proponent of the order, i.e., the

party initiating the proceeding, on the issues raised by that

party, but allows the burden to be shifted. . . as to issues

raised by the opponent, i.e., affirmative defenses.” So hold-

ing, the court of appeals remanded since “[I]t is not clear if

the ALJ. . . ever considered whether the claimant's evidence

satisfied the preponderance of the evidence standard”.

STATEMENT OF JURISDICTION

On September 23, 1993 petitioner Santoro filed a timely

petition for writ of certiorari seeking restoration of her award

of benefits. On October 22, 1993 respondent filed a cross-

petition asking in the event Mrs. Santoro’s petition was

granted for a writ in order to have this Court review the

appropriateness of the order of remand. On November 10,

1993 the Solicitor General filed a petition on behalf of the

Director, Office of Workers’ Compensation Programs, United

States Department of Labor seeking review of the decision of

the Third Circuit Court of Appeals in Mrs. Santoro’s case and

in Greenwich Collieries v. Director, OWCP, 990 F.2d 730,

decided by the same court March 23, 1993, which is said to

involve issue of the alleged “true doubt rule” in claims

brought under the Black Lung Benefits Act, 30 U.S.C. Section

901, et seq. The Court has jurisdiction pursuant to 28 U.S.C.,

Section 1254(1).

SUMMARY OF ARGUMENT

Mrs. Santoro’s case is presented by the court of appeals’

analysis and petitioners’ argument as involving issue of

whether Longshore Act decisional law prior to APA enact-

ment’, which allegedly allocated the burden of persuasion on

all entitlement issues to the employer, controls with the

claimed result that the true doubt ruled is valid, or but for the

APA would be valid; or, instead, as the court of appeals’ opin-

ion might be read as suggesting but does not hold, adoption of

the Procedures Act altered existing law by imposing a burden

of persuasion by the preponderance of the evidence upon the

benefits claimant. The Solicitor acknowledges (Pet., pp. 21-

22) that the standard of proof on every Longshore Act bene-

fits claim issue /s the preponderance, but asserts that what is

said to be the traditional allocation of the risk of non-per-

Suasion was improperly disturbed because the court of

appeals’ interpretation of the Procedures Act reveals an

“ambiguity. . .” which is “best accommodated, not. . . by

placing the risk of non-persuasion always on the party seek-

ing tochange. . . the status quo. . . , but by allowing the

Agency to determine. . . which party should bear that risk

. . . (Pet., p. 22). The Solicitor thus describes the doubt rule

as involving nothing more than allocation of the risk of non-

Act of June 11, 1946, c. 324, 60 Stat. 237.

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persuasion; and for this reason it can be applied oniy when the

conflicting evidence has been determined to be of identical

perceived credibility and accuracy. The government justifies

the Agency’s alleged right to make the allocation because

“. . . the principle that doubts are resolved in favor of the

claimant was firmly established as a rule of construction

under the. . . [Longshore Act]. . . whenthe. . . [Admin-

istrative Procedures Act]. . . was enacted (Pet., p. 23); and

that “the ‘true doubt rule’ represents, in effect, the Secretary's

administrative judgment, developed in conjunction with and

long accepted by the courts that. . . [the]. . . risk [of non-

persuasion] should rest on the employer” (Pet., p. 16). By

arguing “deference” the government claims that the Secretary

of Labor has the right to transfer the burden of persuasion to

the employer on every entitlement issue in the event the

courts have not done so, despite the fact that there is no evi-

dence that the Agency ever believed itself so empowered. in

no Longshore Act regulation is provision made for a rule of

doubt in administrative law judge determinations of fact

despite the Act’s Section 23(b). See, 20 CFR Part 702.

The “true doubt rule”, which both petitioners misdescribe,

does not merely reallocate the risk of non-persuasion, it cre-

ates a standard of proof applicable to evidence presented by

the claimant which is not only less than by the preponderance

it is so much less that the risk of failure to abolish “any”

doubt on all issues belongs to the employer. Nonetheless, both

petitioners claim that evidentiary “equipoise”, or that the

proof supporting or opposing entitlement to benefits be found

“equally probative” or “evenly balanced”, is required before

the rule may be applied. This supposed threshold of doubt

rule applicability is, however, not found in the decisions of

the courts of appeals and by the Benefits Review Board; and

in no case is the rule's use rejected because the only allegedly

required determination was not made by the finder of fact.

The rule, which petitioner Santoro claims “ . is not an

affirmative rule of evidence or procedure but is a deadlock

breaking device” which is “within the discretion of the fact

finder” to employ (Pet. p. 7), since admittedly not a principle

of required application, cannot be law. The government's

effort to justify the rule by describing it as a mere reallocation

device applicable after weighing in the event conflicting evi-

dence is found to be in “equipoise”—considered in light of

what in Maher Terminals, Inc. and Greenwich Collieries v.

Director, OWCP were the actual bases of the awards of ben-

efits—establishes that the Agency’s argument, which in any

event is not an interpretation of any Longshore Act provision,

is a post hoc rationalization entitled to no deference. Martin

v. OSHRC, __ U.S. __, 111 S.Ct. 1171, 1179 (1991).

That there is any “doubt rule” applicable to Longshore Act

benefit claim finding of fact is rejected by this Court’s prece-

dent. Most fundamentally, since the true doubt rule lessens

the standard of proof below the preponderance of the evi-

dence as the court of appeals held (992 F.2d at 1285), it con-

tradicts not only the Administrative Procedures Act but this

Court's “substantial evidence” definition as well. In Steadman

v. SEC, supra, this Court observed (450 U.S. at 99) that Sec-

tion 7(c) “in accordance with” meant “not simply supported

by enough evidence to justify, if the trial were to a jury, a

refusal to direct a verdict when the conclusion sought to be

drawn from it is one of fact for the jury”, which as the Court

said is substantial evidence as defined in NLRB v. Columbian

Enameling and Stamping Co., 306 U.S. 292, 300 (1939). It

did so in holding that the Procedures Act established a stan-

dard of proof /ess than applicable decisional law provided

before APA enactment. As this Court also held (450 U:S. at

100 n.20), because “. . . the reviewing court is not to weigh

the evidence. . .”, the “functions of initial decisionmaking

and judicial review of it” are “different”, for which it cited

Charlton v. FTC, 543 F.2d 903 at 907 (D.C. Cir. 1976), a case

which holds: “Nowhere in our jurisprudence [i.e., in Ameri-

can law] have we discerned acceptance of a standard of proof

tolerating something less than the weight of the evidence”. In

po tne yo

Steadman the Court held further (/bid. at 99): “Obviously,

weighing evidence has relevance only if the evidence on each

side is to be measured against a standard of proof which allo-

cates the risk of [adjudicative] error”. It thus appears that the

true Steadman holding is “not simply” that Administrative

Law Judge’s findings of fact had to be made pursuant to what

NLRB v. Columbian Enameling and Stamping Co. required

prior to APA enactment, but that, as a result of enactment of

the APA, findings of fact must a/ways be made, in absence of

contrary provision in the authorizing statute, by the ALJ on

the basis of what he or she deems to be the preponderant evi-

dence. In sum, Steadman v. SEC need not be read as holding

that the Procedures Act created the preponderance standard;

and that it had not existed before its adoption. What Steadman

v. SEC, supra, however, unquestionably holds, as a result of

this Court’s rejection of the dissenting view, that the APA

should not alter existing standards established by decisional

law before that enactment, is that, were there a doubt rule in

Longshore Act factual determinations prior to adoption of the

Procedures Act in 1946 as petitioners mistakenly claim, the

APA abolished it.

The origin of a rule of doubt has also been inaccurately

described by petitioners, since no such rule was ever applied

to Longshore Act factfinding prior to 1968, more than 40

years after the Act’s adoption’. Moreover, the rule cannot be

valid unless factfinder doubt, itself, is substantial evidence,

in which event Section 21 review becomes a matter whether

it can be determined that the ALJ “properly considered” the

conflicting evidence before awarding benefits, not by actually

deciding the factual issues upon which entitlement to benefits

depends, but after determining that “there is a significant

basis for true doubt” that benefits should be denied.

> March 4, 1927, c.509, 44 Stat. 1424.

STATEMENT PURSUANT TO RULE 15 OF

PERCEIVED MISSTATEMENTS OF FACT AND LAW

Both petitions urge validity of the “true doubt rule” because

“(flor fifty years or more” (Solicitor’s Pet., p. 14) part of

Longshore Act law. This alleged rule, which is concededly

based upon the statute’s “humanitarian” purpose or “policy”

of “liberal” administration as opposed to any Longshore Act

provision, applies in the event that the evidence is “equally

probative” or is in “equipoise” on any and all “doubtful fac-

tual issues” (Santoro Pet., p. 6); or on “. . . those factual

questions in which the evidence is found to be in equipoise”

according to the Solicitor General (Pet., p. 15). Neither Mrs.

Santoro nor the Solicitor clearly identifies what, if any, find-

ing, other than that the factfinder is not convinced that ben-

efits are not owed, is required before an Administrative Law

Judge only may apply the “true doubt rule”, i.e., whether a

predicate determination that the conflicting evidence is of

identical credibility and perceived accuracy must be made; or

whether it is properly employed even when there is only

doubt that benefits should be denied. Evidentiary “equipoise”

with respect to each essential fact and a rule of doubt applied

to all factual issues arising from contravention is not only

meaningless, it cannot be reconciled with the reality that

determinations from conflicting evidence are never doubt-

free, as well as the fact that any standard of proof allocates

the risk of decisional error (Addington v. Texas, 441 U.S. 418,

423 (1979)). In “equipoise” and “equally probative” are,

moreover, ambiguous. For this reason, it is not sufficient for

the Solicitor to claim that “the rule provides only that when

the adjudicator finds the evidence on each side evenly bal-

anced (taking account of both its quantity and its quality), the

doubt finally remaining should be resolved in favor of the

claimant” (Pet., p. 15). It as well as the assertion: “In the Sec-

retary’s view, an Administrative Law Judge should find the

evidence evenly balanced only in narrow circumstances, after

carefully considering all the evidence and exhausting all

Anti enone

wee Ne A ie ee ~ we

methods of evaluating it” (/bid., p. 15) do not dispel uncer-

tainty, they add it. It is not apparent what the Solicitor intends

by the alleged requirement that the factfinder “take[ ] account

of the quantity and quality of evidence”. Similarly unclear is

what an ALJ need do before it can be said that he or she

“carefully consider[ed] all the evidence and exhaust[ed] all

methods of evaluating it”? And what do petitioners intend “in

equipoise”, “equally probative” or “evenly balanced” actually

mean? No answer is provided by the Solicitor’s claim that the

“rule provides that when evidence submitted by the claimant

and the party opposing the award of benefits is of equal

weight, the remaining doubt is resolved in favor of the

claimant” (Pet., p. 4); or, contradictorily, since doubt is pos-

sible even when the conflicting evidence is thought to be of

vastly disparate weight favoring denial of benefits when

“weight” means credibility and accuracy, by quoting this

Court’s doubt rule description (Mullins Coal v. Director,

OWCP, 484 U.S. 135, 144 n.12 (1987)), asserting that

“. . . where true doubt exists, that doubt shall be resolved in

favor of the claimant” (Pet. p. 25).

Use of the “true doubt rule” is affirmed by the Benefits

Review Board in absence of any predicate finding which

might be said to constitute a declaration of evidentiary

“equipoise”; or demonstration even that the conflicting

evidence has, in fact, been weighed for comparison of relative

credibility or accuracy. APA Section 557(c)(3) to which

neither petitioner refers, however, provides: “All decisions

. . Shall include a statement of—(A) findings and conclu-

sions, and the reasons or basis therefore, on all material issues

of fact, law or discretion presented on the record”. The

Board’s decision in Betz v. Arthur Snowden, 14 BRBS 805

(1981), which according to the Solicitor establishes proce-

dural safeguards which make “the ‘true doubt rule’. . .

plainly permissible” (Pet., pps. 15-16), does not require a

finding that the conflicting evidence is of equal credibility

and perceived accuracy before the doubt rule may be applied.

10

The rule, instead, applies to any and all doubts as the Bene-

fits Review Board held (A-21). See, e.g., Avondale Shipyards

v. Kennel, 914 F.2d 88, 90-91 (Sth Cir. 1990); Parsons Corp.

of Cal. v. Director, OWCP, 619 F.2d 38, 41 (9th Cir. 1980);

Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir.

1978). Despite petitioners’ description, the doubt rule in long-

shore cases has been said to apply in determining whether or

not the Longshore Act Section 20(a) presumption, “. . . that

the claim comes within the provisions of this chapter”, has

been rebutted and, hence, before evidentiary equipoise is pos-

sible. Hensley v. Wash. Metro Area Transit Authority, 655

F.2d 264, 267, 268 (D.C. Cir. 1981); Stevenson v. Linens of

the Week, 688 F.2d 93, 98 (D.C. Cir. 1982). It has been further

held that it need not be employed when the issue of entitle-

ment to benefits is “close”. Sprague v. Director, OWCP, 688

F.2d 886 (ist Cir. 1982). On the other hand, Longshore Act

benefits have been awarded as a result of the doubt rule in

absence of evidence which would meet the test of relevance

defined in F.R.Evid. 401 as “. . . having any tendency to

make the existence of a fact. . . more probable or less prob-

able”, i.e., when the evidence supporting compensability was

only that a connection between employment and disability for

which benefits were sought was “possible”. Noble Drilling

Co. v. Drake, 795 F.2d 478 (Sth Cir. 1986); Mid-Gulf Steve-

dores, Inc. v. Neuman, 462 F.2d 185 (Sth Cir. 1972). Contrary

to petitioners’ description, the “true doubt rule”, in fact,

allows evidence which would not be admissible in any case

tried to a jury to be the basis of an award of benefits; or, when

claimant and the employer offer conflicting relevant proof, it

dispenses with requirement that such evidence be weighed.

Although neither petitioner says so, these two applications of

the actual rule are reflected in the initial decisions in the cases

subject to the Solicitor’s petition; and Benefits Review

Board’s affirmance of both demonstrates that the rule cannot

be reconciled with the petitioners’ characterization of it, how-

ever vague. Instead, affirmance shows that the “true doubt

rule” is actually an avoidance device which allows an ALJ to

award benefits without deciding the issues upon which the

right to benefits depends. The “principle” which informs the

actual rule is only that no risk benefits might be mistakenly

denied should be tolerated.

Greenwich Collieries v. Director, OWCP

In the Black Lung Benefits Act case which the Solicitor

would have this Court review, benefits were awarded after the

evidence supporting compensability, on the basis of claim that

there was X-ray evidence of the presence of pneumoconiosis,

was found to be “significant enough to raise true doubt”

(41a). Since as the Board acknowledged it cannot reweigh the

evidence (18-19a), its affirmance establishes that the ALJ's

finding means the same thing as the Board's determination

that the factfinder had “properly discussed and weighed all

relevant medical evidence” before finding conflicting read-

ings of allegedly positive X-rays “equally probative” (20a).

The award, however, does not reflect that this evidence was,

in fact, weighed, since all the ALJ did was conclude that she

was “. . . not impressed or persuaded by the fact that the

employer was able to produce a greater number of negative

interpretations” (41a). Thus, in the Board's view “probative”

must mean “;clevant” as defined in F.R.Evid. 401, since only

judged by this standard is all evidence which can be said to be

probative equally so. That this is so is apparent from the hold-

ing that the Administrative Law Judge did all that needed

be done in deciding the issue of disability: The Board found

that “her discussion of the medical evidence . . . supports

. . the inference that she had properly considered all the

conflicting evidence” (22a, emphasis added). This means that

an ALJ who in his or her discretion chooses to apply the rule

need search only for some evidence in the record which if

considered in isolation would support an award; but the

factfinder need not actually either believe it or trust its accu-

racy, Save, as will be shown, to the extent he or she decides it

is not inherently incredible or patently unreasonable. In the

12

event the Benefits Review Board agrees that it is not, evi-

dence “significant enough to raise true doubt” is substantial

evidence supporting an award based upon a finding of doubt

and not fact. Surely, the dee sion of the Benefits Review

Board in Greenwich Collievies v. Director, OWCP establishes

that as a result of the doubt rule it is proper for an ALJ to

award benefits without conflicting evidence being found in

“equipoise” after it has been exhaustively weighed, as the

Solicitor has mistakenly suggested must be done before the

rule may be invoked.

Maher Terminals, Inc. v. Director, OWCP

In Mrs. Santoro’s case, although in denying rehearing the

ALJ, unlike in Greenwich Collieries v. Director, OWCP, in

fact, characterized the “conflicting evidence” as “equally pro-

bative” (A-46), he could not have weighed respondent's evi-

dence which he rejected for reason of Longshore Act

“policy”. In addition, the basis for his award of benefits was

doubt about an issue to which the parties agreed. The decision

of the ALJ and the Benefits Review Board in Mrs. Santoro’s

case carries issue of the doubt rule in Longshore Act cases an

additional step—doubt need not be a matter of evidence in the

record and, instead, can arise in the mind of the factfinder

despite agreement that doubt is baseless. Neither petitioner

acknowledges that the Benefits Review Board recharacterized

the ALJ's finding that the conflicting evidence had been

“equally probative” as “in equipoise”; or that the Board also

said without any basis that the Administrative Law Judge had

found petitioner's expert's testimony “credible”. For this rea-

son, it determined that the witness’ opinion, which was said

correctly to have concerned only the effect of edema caused

by trauma (1-7 AM)—which there is no evidence the Admin-

istrative Law Judge believed and which it is certain was not

the basis of his award of benefits—required that it affirm. The

Solicitor also affirmatively distorts the record in Mrs. San-

toro’s case—the government alleges that claimant's expert

a I i At itm.

a ta Al a OB

13

testified that injury at work hastened disability and death “by

aggravating a tumor that was previously dormant and might

have remained so for years” (Pet., p. 9) despite the fact that

this witness testified that pre-existing disease was an aggra-

vating factor only because its presence supposedly made the

effect of “edema” critical (6 AM). Moreover, the Solicitor

(Pet., p. 10), as did the Benefits Review Board (A-23), claims

the Administrative Law Judge “credited” the claimant's

expert's opinion “anchored in his experience as a hands-on

neurosurgeon”, without acknowledging that the opinion was

only that “Claimant (sic) sustained some type of traumatic

insult to or around his neck of which he complained from the

very beginning” (A-40).

In Mrs. Santoro’s case the issue of “causality” between

work related alleged whiplash injury (for which benefits had

been paid until the day before deceased returned to work eight

days after his injury) and subsequent disability and death

from cancer of the cervical spinal cord was addressed at the

Section 19(d) hearing by Bennett W. Derby, M.D., who tes-

tified for respondent, and by David I. Yazdan, M.D., a neu-

rosurgeon who performed exploratory surgery on deceased

August 19, 1985 and whio testified as petitioner's medical wit-

ness. According to respondent's expert, deceased had astro-

cytoma for a “long, long time” before injury at work, a

portion of which“. . . abruptly escalated, intrinsically, nat-

urally, spontaneously, biologically in and of itself without ref-

erence to any external event into an accelerated much more

malignant phase of growth which started literally breaking

down the spinal cord and did so piece by piece” (A-39). The

Administrative Law Judge rejected this evidence, not because

of any lack of credibility or factfinder concern for accuracy,

but on account of close temporal coincidence between occur-

rence of injury at work on July 23, 1985 and onset of catas-

trophic symptoms no later than August 15, 1985 (A-44).

According to decedent's treating neurosurgeon's “edema the-

ory” (A-37), upon which Mrs. Santoro relied exclusively to

establish connection between her late husband's injury at

14

work and her entitlement to benefits, although deceased had

preexisting astrocytoma, later disability and death did not

result from progression of disease but, instead, were caused

by swelling within the cord directly caused by injury at work.

This “edema” was supposedly thereafter aggravated by “. . .

the constant rubbing of the swollen spinal cord against the

vertebral canal owingto. . . ordinary regular movement of

his head [which] gradually increased the swelling” which “led

to neurological breakdown and hastened his death” (A-35).

An essential part of this witness’ view of “causality” which

respondent's expert said was “medically impossible” (A-32)

was his testimony that deceased's astrocytoma—which his

report of operation (12 AM) described as “quite thin and fluc-

tuant” (indicating that deceased’s tumor was highly malig-

nant), had, instead, been“. . . slightly fluctuant, very firm

and leathery in consistency” (A-35) (indicating to the con-

trary)—had not been “cancer” (8 AM). It was because this

was supposedly so that petitioner’s witness claimed that

deceased “might have gone another 15 or 20 years before he

would [have] become symptomatic” (A-42) but for edema

caused by injury (A-23, | AM). Thus, deceased’s doctor, in

sponsoring an explanation for disability and death in which

pre-existing disease was not the direct cause, denied that there

had been any escalation in the degree of malignancy of

deceased's tumor. He specifically testified that “the injury did

not cause the tumor to grow” (1 AM) and that initial and sub-

sequently increasing “edema” and/or its consequences did not

“| . make[ ] the tumor bigger or increase[]. . . cell growth

or anything else” (3 AM). It was evidentiary agreement deny-

ing “causality” in the event escalation in level of malignancy

had occurred; or testimony establishing it because of “edema”

directly caused by injury without escalation occurring, which

was described by the Administrative Law Judge as “equally

probative”. Neither petitioner has informed this Court that the

award of benefits was not based upon the factfinder’s inabil-

ity to decide which opinion was the more credible or accurate.

Se et Reale i Pe et

< wheels

A a lh mt me

15

The Administrative Law Judge did not sponsor the credi-

bility of petitioner’s witness “edema theory”. In addition

to finding, not that “the” testimony had been “inconsistent

or contradictory” (A-44) but as the Benefits Review Board

observed that petitioner's expert's had been (A-22), the ALJ

held that “. . . there is some merit to the employer's position,

taking into account the difference it pointed to in[. . . peti-

tioner’s doctor's]. . . testimony that, in effect, . . . [his]

. . Opinion is a gratuitous ‘theory’ to put the claimant's case

in the best light” (A-40). On the other hand the factfinder

determined that respondent's expert's testimony provided a

“high level of persuasion” on all issues other than whether

deceased had sustained injury to his neck at work at all

(A-40); but as he also noted, this witness testified in any

event that deceased's astrocytoma “is not known to medical

science to be caused or aggravated by trauma” (A-44). Also

certain is that the ALJ could not have awarded benefits

because the “issue of causality remains debateable” after hav-

ing rejecting respondent's evidence had he concluded that

petitioner s doctor's testimony had been credible and accu-

rate, in that event the weight of the acceptable credible evi-

dence would have preponderated in Mrs. Santoro’s favor. In

addition, the reason for ALJ doubt was identified and this

required rejection of petitioner’s witness’ testimony that

deceased's astrocytoma had not been cancer; and all but

surely because whatever his hearing testimony he had

described it as “malignant looking” in his report of operation

(11 AM).

What the Administrative Law Judge doubted was not that

there had been “abrupt escalation of the underlying astrocy-

toma” which the finder of fact accepted, but both experts’

opinion that this could in no way be related to trauma.

Despite agreement that trauma did not cause deceased's astro-

cytoma and did not “make[ } the tumor bigger or increase[ }

cell growth or anything else. . .”, the ALJ observed that “the

type of the Claimant’s (sic) underlying neoplasm poses one of

the greatest difficulties in resolving the basic issue in this

16

case”. This “difficulty” arose from th fact that “[i]t seems

evident or reasonable to acknowledge that the causes and fac-

tors controlling malignancy are still obscure and under

research”; and the Administrative Law Judge immediately

thereafter observed that although respondent’s witness “tes-

tified that the disease is not known. . . to be caused or

aggravated by trauma”, there nonetheless was “. . . nothing

in this record to indicate whether any statistical studies have

been done in this area” (A-44).

In suggesting that there was “evidentiary deadlock”, peti-

tioners fail to acknowledge that the impact of the “true doubt

rule” in Longshore Act cases is best demonstrated by the fact

that it is improper to base an award, where as in Mrs. San-

toro’s case the issue does not enable the factfinder to decide

upon the common sense of the situation, or when the record is

not conclusive on the issue of causation (see, Todd Shipyards

Corporation v. Donovan, 300 F.2d 741 (Sth Cir. 1962)), on

adoption of an explanation which expert medical testimony

rejects. See, Gober v. Matthews, 574 F.2d 772, 777 (3rd Cir.

1978). For these reasons, had the Administrative Law Judge

held affirmatively that injury at work had caused abrupt esca-

lation in level of malignancy such determination would have

required the Benefits Review Board to vacate the award in

Mrs. Santoro’s favor. Mere confession of doubt as to the accu-

racy of both experts’ rejection of this explanation for “causal-

ity” had, however, exactly the opposite effect. Doubt of the

correctness of joint testimony was not just sufficient to make

“conflicting” testimony “equally probative” it was enough for

the Board to conclude that the award of benefits had been

based upon “substantial evidence”. In addition, the Benefits

Review Board established what must be shown upon Long-

shore Act Section 21 review in order to avoid liability for

benefits in a doubt rule case where the Section 20(a) pre-

sumption has been rebutted. In his decision and order award-

ing benefits the ALJ held that “[bJjefore Section 20(a) is

applicable, a claimant must establish that he or she sustained

some harm, and that working conditions existed or that an

17

accident occurred that could have caused the harm “ (A-30,

emphasis added), an alleged obligation of the benefits

claimant mis-characterized by the court of appeals as neces-

sary “to establish a prima facie case” (992 F.2d 1279-80).

After observing that the Section 20(a) presumption had been

successfully invoked and rebutted, the Benefits Review Board

affirmed: “Because the employer has failed to establish that

the Administrative Law Judge’s crediting (sic)” of claimant’s

doctor’s opinion “is inherently incredible or patently unrea-

sonable” (A-23). This showing is, of course, identical to what

would be required—assuming that any evidence is needed for

the Section 20(a) presumption to be invoked—in order to

deny invocation, i.e., that the proof supporting entitlement to

benefits was so infirm as to fail to establish even that the

harm at issue “could have” been caused by work-related

injury. Although neither petitioner says so, this means if the

“true doubt rule” is valid, doubt is Longshore Act Section 21

“substantial evidence”. Of course, the doubt rule shifts the

burden of persuasion and with that the risk of non-persuasion

to the Longshore Act employer, but to persuade the fact-

finder of what? In Mrs. Santoro’s case respondent was

required to prove beyond doubt there was no possible con-

nection between injury and subsequent disability and death.

Despite the fact that there is, of course, no rational connection

between Longshore Act employment and aggravation of cer-

vical spinal cord cancer (see, Mobile, J&K.C.R. Co. v.

Turnipseed, 219 U.S. 35 (1910)), respondent was found liable

for benefits because the riddle of deceased's cancer has not

been solved. As a result, the Section 20(a) presumption was

not rebuttable. \t is to this “interpretation” of the Longshore

Act to which the government would have this Court “defer”.

There is no question at all that it is a result which the actual

“any” and “all” doubt rule permits. Because the Solicitor

seeks to have Mrs. Santoro’s award restored, it is this rule,

which allows “selection” of a “set of facts” favoring claimant

as the Review Board held in Greenwich Colleries (19a, n. 3),

which the Agency sponsors.

18

ARGUMENT

The sole issue raised by the petitions is how facts are to be

found at administrative hearings of Longshore and Black

Lung Benefits Act claims. Issues of what might be called

“substantive” law, of course, also apply. Mrs. Santoro’s award

offers an example of a finding of fact insufficient to establish

entitlement to benefits: that the record “establish[ed] and

unbroken claim of events supporting a finding of causally-

related neck pain” (A-44). It is not pain but “. . . incapacity

because of injury to earn the wages which the employee was

earning at the time of injury in the same or other employ-

ment” (Section 2(10)) which triggers the obligation to pay

benefits in the event that the connection between “disability

or death” which“. . . results from an injury” (Section 3(a))

is proven to be an“. . . accidental injury or death arising out

of and in the course of employment. . .” (Section 2(2)). It

has been, however, held to be enough to establish a right to

benefits to show that an employment injury aggravates, accel-

erates or combines with a pre-existing condition (see, e.g.,

Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir.

1966)); and supervening cause is said to bar Longshore Act

benefit claims only if having an “overpowering and nullify-

ing effect” (Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046

(Sth Cir. 1983); Atlantic Marine, Inc. v. Bruce, 661 F.2d 898

(Sth Cir. 1981)), examples of how the law has been structured

in way favorable to claimants beginning with this Court’s

decision in Baltimore & Philadelphia Steamboat Co. v. Nor-

ton, 284 U.S. 408 (1932). Such “humanitarian” interpretations

of the Longshore Act concerning what need be proven as

opposed to how all necessary facts must be established are not

affected as a result of the court of appeals’ decision in Mrs.

Santoro’s case.

19

THE ORIGINS AND ERROR OF THE DOUBT RULE

The first “true doubt rule” decision according to the Solic-

itor is Fidelity & Casualty Co. v. Burris, 59 F.2d 1042 (D.C.

Cir. 1932), a case involving issue of “accidental injury” and

“arising out of and in the course of employment” in which it

was said: “Where there is doubt, it should be resolved in

favor of the injured employee or his dependent family”; and

that “[iJn this case the facts are all agreed”. The second is

Southern S.S. Co. v. Norton, 101 F.2d 825, 827 (3rd Cir. 1939)

which involved interpretation of Longshore Act Section

(2)(10) “disability”, a question characterized by the court of

appeals as “one of law” in which the court held that “it was

quite apparent from the record” that claimant had proved his

entitlement to benefits. In the Solicitor’s next doubt rule case,

Southern Pacific Co. v. Sheppeard, 112 F.2d 147, 148 (Sth

Cir. 1940), which involved death as a result of assault by a

co-worker, the court of appeals held “the evidence is not in

dispute”. In F.H. McGraw & Co. v. Lowe, 145 F.2d 886, 888

(2nd Cir. 1944), the last of the Solicitor’s cases prior to APA

adoption, which involved Parkinson’s disease allegedly

caused by trauma, “one expert neurologist gave testimony that

such . . . causal relationship existed”; and as a result the

court concluded that it could not say that “the deputy com-

missioner did not base his finding of causal relationship. . .

upon the evidence submitted”. There is, in fact, no case in

which any rule of doubt was held applicable to Longshore Act

factfinding prior to enactment of the Procedures Act; and the

Solicitor’s claim that it was “firmly established as a rule of

construction under the. . . [Longshore Act]. . . when the

APA was enacted” is refuted by the government’s authority

itself. Omitted from argument in both petitions is citation to

cases decided after adoption of the Administrative Procedures

Act holding that the Longshore Act claimant had the “burden

of proof” in the sense of risk of non-persuasion. See, Calbeck

v. Strachan Shipping Co., 306 F.2d 693 (Sth Cir. 1962); Good-

ing v. Willard, 209 F.2d 913 (2nd Cir. 1954); Eschbach v.

20

Contractors, Pacific Naval Air Bases, 181 F.2d 860 (7th Cir.

1950).

The first case in which it was held that a doubt rule applies

to Longshore Act factfinding is Young & Company vy. Shea,

397 F.2d 185 (Sth Cir. 1968). This holding and every other

thereafter contradicts the Longshore Act factfinder’s duty of

. . initially selecting the inference which seems most rea-

sonable. . .” established in Cardillo v. Liberty Mutual Insur-

ance Co., 330 U.S. 469, 478 (1947), a case decided after APA

enactment but which involved a benefits claim arising before

that time, since the doubt rule allows benefits to be awarded

unless the ALJ is certain they should be denied. In addition,

the rule, which according to the Benefits Review Board in

Mrs. Santoro’s case “comes into play” only after the Act Sec-

tion 20(a) presumption is rebutted (A-21), requires the

employer to “insure conviction”, i.e., abolish doubt, that ben-

efits are not owed. In DelVecchio v. Bowers, 296 U.S. 280

(1935), this Court held that the Longshore Act Section 20(d)

presumption, “[t]hat the injury was not occasioned by the

willful intention of the injured employee to injure or kill him-

self or another”, is not evidence; and as a result an employer

need not offer proof in rebuttal sufficient to “induce convic-

tion” that the fact presumed is not so, a holding which rejects

the same biased result which the doubt rule achieves. In U.S.

Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455

U.S. 608 at 612 n.5 (1982) “coverage” of the Longshore Act

Section 20(a) presumption was said to be “debateable” but

also that it “seems fair to assume” that it is “of the same

nature as the presumption created by Section 20(d). . . as

construed in DelVecchio v. Bowers. . . and the presumption

defined in Rule 301 of the Federal Rules of Evidence”; and in

order that entitlement to benefits not be mistakenly treated as

disability and life insurance, this Court held that Longshore

Act Sections 3(a) and 2(2) “work connection” had to be

“proved”. /bid. at 615 n.10. In Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477-478 (1951), the Court held that the

’

Ce ed

21

Procedures Act had been adopted by Congress to discourage

“the notion that it was enough that the evidence supporting

the Board’s result was ‘substantial’ when considered by

itself”, exactly what in Greenwich Collieries the ALJ did in

considering but not deciding whether there was X-ray evi-

dence of pneumoconiosis. Moreover, it is the identical

approach which Mrs. Santoro urges by claiming that “the true

doubt rule must be seen as a component of the substantial evi-

dence rule” (Pet., p. 7). In addition, the justification for the

doubt rule was initially said in Young & Company v. Shea to

be existing case law; and in denying rehearing the court en

banc additionally relied for its holding that the Longshore Act

factfinding “standard is less” upon the alleged fact that

“Congress has indicated an intention to require less”, a con-

clusion for which only “33 U.S.C. Section 901 ef seg.” was

cited (404 F.2d at 1061 n.2).

In Young & Company v. Shea, supra, 397 F.2d at 188, the

fifth circuit recited the doubt rule as expressed in Fidelity &

Casualty Co. v. Burris, supra, without citing that case but oth-

ers, in no one of which doubt was 2° plied to the process of

tinding facts. It did so despite holding: “Under 33 U.S.C. Sec-

tion 903(a) the claimant has the burden of proving all that is

not presumed under section 920”, thus establishing that the

“true doubt rule” began not as a reallocation device but as a

lessened standard applicable to claimant’s proof. Because

Young & Company involved question of collateral estoppel on

account of a jury finding that claimant had sustained no

injury, the court observed first that the “standard [of proof]

before the jury is the preponderance-of-credible-evidence

test” and next that “[a]lthough we cannot ascribe a legal label

to the burden before the . . . [Longshore Act factfinder] . .

. the statutory policy, as interpreted by the courts, indicates

that it is a less stringent standard of persuasion” (/bid. empha-

sis added). The absence, in fact, of a prior case establishing

a rule of doubt applicable to finding facts in Longshore Act

benefit claims proves that the doubt rule based upon “statu-

22

tory policy, as interpreted by the courts” was a mistake when

originated—no such “policy” had ever before been found to

control the process of finding fact.

More importantly, the holding that there is a “less stringent

standard of persuasion” contradicts this Court’s definition of

what constitutes “substantial evidence”. In Watson v. Gulf

Stevedore Corp., 400 F.2d 649, at 652 (Sth Cir. 1968) the

court of appeals held by quotation from NLRB v. Columbian

Enameling and Stamping Co., supra, 306 U.S. at 299-300 that

substantial evidence “. . . must be enough to justify, if the

trial were to a jury, a refusal to direct a verdict when the con-

clusion sought to be drawn from it is one of fact for the jury”;

and its excerpt omitted this Court’s first definitional phrase:

“Substantial evidence is more than a scintilla and must do

more than create a suspicion of the existence of the fact to be

established”. This preliminary requirement, since “suspicion”

is a source of doubt, proves that any rule of doubt had been

rejected by this Court not later than nearly thirty years before

its invention. In denying joint rehearing of Watson v. Gulf

Stevedore Corp. and Young & Co. v. Shea (404 F.2d 1059) it

was observed correctly that in a Longshore Act case “. . . the

reviewing court applies the same rule to review the admin-

istrative proceedings that an appellate court applies in review

of jury verdicts and in this respect. . . the scope of review of

jury verdicts and of administrative findings is the same” (404

F.2d at 1061); and the court held, also correctly, that adoption

of the Administrative Procedures Act “. . . did not change the

scope of judicial review. . .” of Longshore Act factfinding

(/bid.). But it also decided that in reviewing the factfinder’s

decision “. . . the. . . court must take into account that the

standard of persuasion is less. . . than it would be in a jury

trial on the same issue” and, contradictorily, that “[n]othing

said. . . [in Young & Company v. Shea]. . . intimates any

modification of the substantial evidence rule. . . applied to

the question. . . whetherthe. . . determination [to award

benefits] should be accepted on review” (/d.).

- ee er eae ©

23

Obviously, the question what constitutes substantial evi-

dence is a matter of what the party with the burden of per-

Suasion need prove in addition to how he or she may prove it.

How all necessary facts must be established was fixed in

NLRB v. Columbian Enameling and Stamping Co. and it is by

evidence sufficient to justify in an ordinary case a civil jury

verdict. This means that the trial judge in refusing to direct a

verdict at the close of all proof has determined that the jury is

entitled to decide the issues by the standard of the prepon-

derance of the credible evidence—which the court thereafter

charges must be the basis of its verdict—in favor of the party

having the risk of non-persuasion. Since this jury trial test

must be applied before the evidence upon which an award of

benefits can be found to be “substantial”, the proof standard

by the preponderance of the credible evidence must apply to

findings of fact. Creation of a “less stringent standard” appli-

cable to factfinding, one less than the preponderance of the

credible evidence although how much less the court of

appeals could not say, inevitably affects the standard of

review as this Court has defined it—if the evidence at the

Section 19(d) hearing is less and as a result would justify

direction of a verdict, i.e., would not, if believed, establish

the claim by the preponderance of the evidence, what does the

Benefits Review Board or the courts of appeals review for? It

cannot be substantial evidence, i.e., proof which depending

upon determinations of credibility and accuracy may properly

be found to be preponderant, because the claimant need not

offer such proof before benefits may be awarded. Review

must therefore be only to determine whether evidence which

need not have convinced was “inherently incredible or

patently unreasonable” which, of course, is what the Board in

Mrs. Santoro’s case said it was. This means, in turn, that nei-

ther the ALJ nor the reviewing Board or court need determine

whether the evidence is “. . . enough to justify, if the trial

were to a jury, a refusal to direct a verdict. . .” In Longshore

Act factfinding, it is not just the Administrative Procedures

Act which is the “polestar which guides our course” to the

24

conclusion that facts essential to an award of benefits must be

found by the preponderance of evidence (992 F.2d at 1285),

it is, in addition, this Court’s NLRB v. Columbian Enameling

and Stamping Co. substantial evidence definition.

The doubt rule/substantial evidence contradiction is appar-

ent in subsequent cases in which Longshore Act benefit

awards were affirmed when the testimony concerning work

connection was only a “possibility” that it “could have”

caused the harm for which benefits were sought. NLRB v.

Columbian Enameling and Stamping Co. would not, of

course, allow an award of benefits based upon testimony of a

possibility that disability and/or death arose out of and in the

course of employment. in any jury trial evidence that is as

consistent with a hypothesis that, for example, the defendant

is negligent and with one that it is not, is proof which tends to

prove neither. Gunning v. Cooley, 281 U.S. 90, 95 (1930)’.

When a number of things may have brought about, again for

example, an injury, for some which the defendant is liable and

for some which it is not, it is not for the jury to guess in order

to find that, for further example, the negligence of the defen-

dant was the real cause. Patton v. Texas P.R. Co., 179 U.S.

658, 663 (1901). This is because a verdict resting on specu-

lation or conjecture cannot stand. New York C.R. Co. v.

Ambrose, 280 U.S. 486, 490, 491 (1930). For this reason, in

Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) the

Section 20(a) presumption, which exists “in the absence of

substantial evidence to the contrary”, was held not to have

been rebutted on account of the fact that the employer’s proof

was not substantial evidence because its medical expert “did

not testify in any way asto. . . probability”. The doubt rule

“less stringent standard”, however, allows speculation to sup-

port an award: It is sufficient if “it. . . [is]. . . possible”

that working conditions were enough to “contribute” to the

cause in fact of disability. See, Noble Drilling Co. v. Drake,

. Cited in NLRB vy. Columbian Enameling and Stamping Co., 306

U.S. at 300.

25

supra, 795 F.2d at 480, in which that court affirmed a bene-

fits award based upon doubt although it acknowledged it was

“. . . Satisfied that the claimant did not establish causation by

preponderance of the evidence”. Since proof of a possibility

is not “substantial evidence”, although the Fifth Circuit Court

of Appeals insists that the fact finding and review standards

are different, its undefined “less stringent standard” ensures

that there is no standard of factfinding and, hence, of review.

Mrs. Santoro’s case shows that it was the Section 20(a) pre-

sumption which was the basis of the benefits award despite

the court of appeals’ holding that “. . . the ALJ did not make

use of the presumption in this case” (992 F.2d at 1280 n.2)

and that effort to justify the doubt rule, as Noble Drilling Co.

v. Drake also reflects, requires treating the presumption as the

claimant's prima facie case. This demonstrates that the courts

of appeals and the Benefits Review Board in applying the

doubt rule mistake what a Longshore Act claimant need prove

as well as how he or she need prove it. It has been said that a

prima facie case“. . . consists of sufficient evidence in that

type of case to get plaintiff past a motion for a directed ver-

dict in a jury case” and: “It is the evidence necessary to

require a defendant to proceed with his case”. White v.

Abrams, 495 F.2d 724, 729 (9th Cir. 1974). These definitions

are not, however, equivalent when a presumption is involved.

Assuming evidence is necessary to invoke the Section 20(a)

presumption and that this need be only that work connection

is possible, that evidence, once the presumption is rebutted,

must fall out of the case if the presumption itself does. More-

over, it is because of the presumption's existence and not on

account of the fact that claimant has presented “sufficient evi-

dence in that type of case [i.e., a claim for benefits pursuant

to the Act’s Section 3(a) and 2(2)] to get . . . [claimant]

. . past a motion for a directed verdict in a jury case” that

the employer must proceed, unless proof triggering the pre-

sumption is not just evidence after rebuttal it satisfies the sub-

Stantive law requirement of what need be proved. In Mrs.

26

Santoro’s case, this was whether her late husband's injury at

work had, in fact, contributed to his subsequent disability and

death, not that this was possible. Nonetheless, the court of

appeals held that a Longshore Act prima facie case requires

proof sufficient to invoke the presumption, failure of which

“defeats the claim” (992 F.2d at 1279), although mere filing

of claim may invoke it. In DelVecchio v. Bowers, supra, 296

U.S. at 286 this Court held that the “only office” of Section

20(d) presumption was to “control the result where there is an

entire lack of competent evidence”; that “[i]t never had and

cannot acquire the attribute of evidence in the claimant's

favor”; and “[o]nce the employer has carried his burden of

offering testimony sufficient to justify a finding of suicide,

the presumption falls out of the case”. Since in Mrs. Santoro’s

case it was said by the Benefits Review Board that it was

after the Longshore Act Section 20(a) presumption was

invoked and rebutted that the “true doubt rule comes into

play” (A-21), the rule requires that proof in opposition to an

award of benefits “induce conviction” that benefits are not

owed, exactly the view that “presumptions are evidence”

rejected in DelVecchio v. Bowers. Since DelVecchio v. Bow-

ers, held that “substantial evidence” as used in Longshore Act

Section 20 need only be “sufficient to justify a contrary con-

clusion” and U.S. Industries/Federal Sheet Metals, Inc.,

supra, holds that the work connection has to be “proved”, it

is not possible to read either case as other than rejecting the

“true doubt rule”. In Mrs. Santoro’s case doubt nonetheless

substituted for her witness’ “edema theory”; and evidence said

to have triggered the presumption was not, in fact, the basis

of the award. For this reason had the presumption truly

“fallen out” Mrs. Santoro would have been denied benefits.

The Administrative Law Judge, in fact, rejected claim that her

husband's disability and death “could have” been caused for

the reason asserted. In U.S. Industries/Federal Sheet Metals,

Inc. this Court held that the Longshore Act Section 20(a) pre-

sumption does not apply to claims not made, and not only did

Mrs. Santoro not claim her husband's disease was caused to

27

increase in level of malignancy by reason of injury, she

denied it. More importantly, mistaking the presumption for a

“prima facie case” and evidence triggering it for proof suf-

ficient to establish entitlement to benefits, together with a

rule of doubt thereafter applicable, means that the presump-

tion always controls the result, not “in absence of any proof”

or when the proof is in “equipoise”, but despite whatever

proof if offered by a Longshore Act employer.

Of course, how proof, if any is required, sufficient to

invoke the Section 20(a) presumption became confused with

what a Longshore Act claimant need prove can be adequately

explained only by the enduring character of the mistaken view

that presumptions are evidence’. The true doubt r — has been

said to“. . . ensure that the employer will win. . . only

when its evidence is stronger than the claimant’s” (Mullins

Coal Co. v. Director, OWCP, supra, 484 U.S. at 144 n.12,

precisely what a presumption which is justified by a rational

connection can be made to achieve, but which this Court has

held the Section 20(d) presumption does not. Surely, were

there an intended bias in Longshore Act factfinding Congress

would not have provided “in the absence of substantial evi-

dence to the contrary” in Section 20. Instead, it would have

required more. Of course, that presumptions are or ought to

be evidence, i.e., should influence the result after rebuttal, is

a mistake of ancient lineage. See, Weinstein’s Evidence (Vol.

1, Rules 101-403, Section 300[01] pp. 300-1 to 5 (1989). This

view of the effect of presumptions was, however, rejected by

Congress in enacting the Federal Rules of Evidence (Pub. L.

93-595, January 2, 1975, 88 Stat. 1931). /bid, Section 301[01]

pp. 301-1 to 12, 37.

Assisted by the practice of treating Benefits Review Board deci-

sions as authority. See, Noble Drilling v. Drake, supra, 795 F.2d at 481.

In U.S. Industries/Federal Sheet Metal, Inc. (455 U.S. at 615-16) this

Court held that the presumption refers to “[a] prima facie ‘claim for com-

pensation’ “ and that it is “no substitute for the allegations necessary to

State a prima facie case.” '

28

In Noble Drilling Co. v. Drake, supra, the Court held that

the doubt rule is properly based upon “. . . broad general

principles. . .” (795 F.2d at 482) but it nonetheless must be

based upon some Longshore Act provision. The starting point

in construing a statute is the language of the statute itself.

Consumer Products Safety Comm. v. GTE Sylvania, Inc., 447

U.S. 102 (1980); and the same word or phrase used in a

statute more than once ordinarily should be given the same

meaning. See, e.g., Barnson v. U.S., 816 F.2d 549, 554 (10th

Cir. 1987). Legislative “purpose” no less than legislative his-

tory divorced from statutory text is meaningless. Lincoln v.

Virgil, ___—~US. , 113 S.Ct. 2024, 2031-32 (1993). If

substantial evidence has the same meaning in both Sections

20 and 21 proper construction requires that the Longshore Act

be found to contain no bias in favor of finding facts sup-

porting compensability. As this Court has heid by rejecting

the view that evidence rebutting a Section 20 presumption

need “induce conviction” and, instead, deciding that it need

only justify a contrary conclusion, and defining substantial

evidence sufficient to support an award of benefits upon

review in exactly the same terms, the “true doubt rule” con-

tradicts Longshore Act Sections 20 and 21. Of course, since

agency right to allocate achieves the same result rejected in

DelVecchio v. Bowers, the government's claim of deference

means that the Secretary of Labor may overrule the Supreme

Court of the United States.

CONCLUSION

How despite massive Supreme Court precedent abolishing

all possibility of a doubt rule applicable in administrative

hearings it can be said that this Court, in Mullins Coal v.

Director, OWCP, supra, “ducked” this only alleged issue (see,

Freeman United Coal Mining Co. v. Director, OWCP, 999

F.2d 291, 293 (7th Cir. 1993, statement of Esterbrook, J.) is

impossible to understand. In Mullins Coal, this Court

ee ls

29

observed that the doubt rule meant “stronger employer evi-

dence was required “on invocation and rebuttal” (484 U.S.

144 n.12). It rejected use of the rule on invocation and had no

reason to decide whether it applied to rebuttal since mooted

by Black Lung Act regulation, the effect of which putting the

burden of persuasion on the employer not being disputed. Of

course, since the rule applies to “all” doubts on “an” issue, to

reject it once is to reject it always. It is, thus, awkward,

surely, for members of that court to express the view that this

Court must now “supply the cure” for an ailment which the

courts of appeals created. Nonetheless, every consideration

important to determining whether a writ of certiorari should

issue exists in Maher Terminals, Inc. v. Director, OWCP,

despite the fact that the decision of the Third Circuit Court of

Appeals is correct. The retreat from the requirement of rea-

soned analysis which the “true doubt rule” reflects demon-

Strates that what is at risk is not less than the adversarial

system of fact finding. An important justification for it seems

to be concern for administrative economy, despite the fact

that under both the Longshore and Black Lung Act claim fre-

quently could not be more effectively promoted than by mak-

ing a doubt ruie applicable to the fact finding process. What

this inappropriate argument also establishes is how unfair the

rule is, especially to Longshore Act employers. In Edmonds

v. Compagnie Generale Transatlantique, 443 U.S. 256, 261

n.9 (1979) this Court held that Congress in amending the

Longshore Act in 1972 “made a determined effort to narrow

the gap” between benefits and damages. The District of

Columbia rejected the amended Act as its compensation

Statute because its expense made business in the District

“non-competitive”. Hughes v. Dist. of Col. Greater Wash.

Labor Council, 498 A.2d 567, 569-70 (D.C. 1985). This Court

has held that the 1972 Longshore Act amendments’, since the

result of compromise, are not remedial. Morrison-Knudsen

Const. Co. v. Director, OWCP, 461 U.S. 624, 636 (1983). As

® Pub. L. 92-576, October 27, 1972, 86 Stat. 1251.

30

of the time of filing of this Brief respondent will have paid

compensation benefits amounting to $326,858 as a result of

Mrs. Santoro’s claim, no part of which is recoverable from

her in the event respondent should ultimately prevail. See,

Longshore Act section 21(b)(3) and (c).

DATED: New York, New York

December 10, 1993

Respectfully submitted,

JOSEPH T. STEARNS

Counsel of Record

KENNY & STEARNS

Attorneys for Respondent/

Cross-Petitioner

26 Broadway

New York, New York 10004-1882

(212) 422-6111

APPENDIX

eri: aol ze ‘ - 4 ms? cats -

; BENGE ool ia win 2 uth Sno

1 AM

DIRECT TESTIMONY OF DR. YAZDAN

(Hearing Transcript, pages 50-51)

A (Continued):

So he had a mixture of symptoms which were all precipi-

tated one way or another by this accident.

Now, we are not saying that it was caused by the accident,

so that’s where the controversy is. You know, people think

when somebody is saying about their spondylosis or the astro-

cytoma was caused by trauma. Well, that’s not true. We know

that’s not true. Trauma does not cause neoplasm, any kind of

neoplasm, we know that.

(pause)

Trauma, on one shot deal doesn’t even cause a spondylosis.

Although in multiple trauma and grinding does cause that.

However, go back in—go back to astrocytoma. This tumor

or this lesion initially was dormant there and he might have

gone another 15 or 20 years before he would become symp-

tomatic.

(pause)

But this injury expedited the whole situation.

Q In other words, doctor, if I understand you correctly, the

injury did not cause the tumor to grow.

A No.

Q It did cause edema, apparently.

A Yes, yes.

(pause)

Q And it was the edema within the limited opening.

A Yeah.

Q What do you call that, parameter, doctor?

A Limited opening, yeah, a space, yeah.

Q Limited space, which caused the symptomatology. Now

what symptomatology are we talking about?

A We're talking about the second group of symptomatol-

ogy which leads to the partial paralysis, sensory deficit and

those things involving the extremities.

a

hs

————————e

2 AM

Neck pain and other things that he had, that was related to

the—that was a direct result of the sprain and a strain of every

past injury that he had.

(pause)

De—development of the paralysis was the result of the

gradual swelling around the tumor within the cord.

* * *

Q I'm sorry. Was that the cause, doctor, of the paralysis to

the left side of the body followed by the right side of the

body?

A That’s correct.

3 AM

CROSS-EXAMINATION OF DR. YAZDAN

(Hearing Transcript, pages 133-34)

Q Now, that edema caused, according to you, pressure on

the cord which was translated into neurological-type com-

plaints and in the findings.

A Now you're introducing the spinal cord.

In order for you to understand that, you have got to imag-

ine or visualize the anatomy of the neck of this particular

patient, not any patient. This particular patient’s cord was

already slightly bigger. Listen to this.

His cord, diameter, was a slightly bigger than an ordinary

individual without a tumor.

In other words, the space between this bony canal and the

cord was diminished already. Therefore, even a minor sprain

may put this guy in trouble because there is not enough room

in there for the cord to maneuver.

Therefore, as an immediate reaction, you get the muscular

response. Delayed reaction, because the patient keeps moving

the neck in the subsequent several weeks, you will get further,

further trauma, more and more trauma to the cord and which

eventually leads to further edema within the cord.

No, none of these things makes the tumor bigger or

increases their cell growth or anything else, or create a tumor.

But yes, trauma does create edema at different time at dif-

ferent level depending how the patient, where the edema is,

what tissue is involved and how the patient is treating it. If

it’s not diagnosed, the patient keeps moving constantly, he

keeps—

Q And that’s—

A—traumatizing it, therefore, it’s going to get worse, you

see?

x* * *

Q Doctor, in fact, you're saying something quite different,

are you not? You're saying now that the sprain caused, even

though it may have been slight, direct mechanical contact

4AM

between the bony canal and the tissue comprising the spinal

cord. |

A It’s not different. I mentioned it, maybe in different—

Q You're talking—

A—terms, but— |

Q You're talking about something that, according to your

theory just now expressed—

* * *

5 AM

HEARING TRANSCRIPT

(Pages 142-144)

Q The incident caused something to happen here on the

shoulders or—or the neck or altogether.

A Both, both.

* * *

Q That did what?

A That did cause several things.

Number one, it causes permanent strain of the muscles.

Q All right.

A Number two, it causes swelling around the spine itself

with the ligaments, which—which is arthritic and that causes

severe pain.

Number three, began to rub against the cord or the dura,

which is covering the cord.

Q Right.

A And in the beginning, this was not apparently enough to

cause immediate neurological picture, but it just caused pain.

But with the frequent trauma day after day after day, he grad-

ually got worse and worse and worse and worse, until he

wound up in the emergency room.

Nobody could explain how a simple cervical sprain could

lift—could lead to this kind of a picture. Until we found out

what happened, then we tried to put everything together and

that’s what I’m trying to do, put them together.

* * *

Q You're saying that there was mechanical contact

between the cord or cord tissue and the dura—

A And the spinal canal.

Q —and the spinal canal—

A Yes.

Q —with the result of the development within the canal of

edema.

A Edema around the tumor because you had a dormant

tumor there which was silent. When you have a silent problem

6 AM

where there is osteoarthritis or whether it’s a tumor or

whether it’s a cyst, whatever; that area, the tissue surround-

ing the lesions more suspectable of developing edema than

the rest of the body.

The trauma of this magnitude, which was not very severe,

is not enough to cause a swelling in the cord and myelopathy.

However, if you have some pre-existing condition in the

cord, then you have this trauma on top of it, yes; if it leads to

a trauma on a crescendo fashion.

(pause)

7AM

(Transcript page 166)

Q Doctor.

A Yes.

Q The mechanics, according to this now-expressed expla-

nation is again swelling, it’s swelling within the cord.

A Yes.

Q Is that what you're saying?

A Around the lesion, which happened—which turned out

to be astrocytoma.

Q Now, are you saying that—

A But it happened in—

Q —that swelling around the cord, this edema around—

within the cord, within the cord itself—

A Yes.

Q —around the tumor—

A Yes.

Q —that that was the result of these consecutive traumas,

beginning with the sprain of the neck on July 23rd, 1985?

(No response)

And following that—

A It’s—

Q —in the course of ordinary use of the head and neck?

A Yes, yes.

* * *

Q You're saying that the rub, rub, rub of —

A The spinal cord.

Q —cord tissue—

A Yes.

Q —-yes, the bony canal, in the period of time between July

23rd, 1985 and for example August 7th, 1985 caused swelling

within the cord around the tumor which in turn caused the

appearance of symptoms and signs of neurological dysfunc-

tion.

A That’s right.

8 AM

(at page 171)

Q Have a little patience with me doctor.

In fact, that this cancer—

A All right.

Q —this tragic cancer, this incurable cancer simply over-

took—tragically overtook Michael—Michael Santoro?

(pause)

A I think that—

Q Is that a valid alternative—

A —no, no, No. it’s not valid, no, no.

Q —explanation of the whole picture?

A No, it’s not valid for the following reason:

Number one, you cannot refer to astrocytoma as cancer. For

the following reason: cancer, in general, means anaplastic tis-

sue in the body which spreads and kills the patient.

Astrocytomas of the brain and the spinal cord do not

spread, the grow in situ, in place.

* * *

(At page 191)

(Answer continued)—that this gentleman had this tumor the

same size, practically, before this accident and he wasn't

symptomatic. How do you explain that?

Q A tumor of this kind, if the man is fortunate enough to

live long enough and depending on how aggressive it is and

it can be anything from weeks to months to years will at some

point in time—

A Yes, at some point in time, will get—

Q —in—in God's due time, cause symptoms, is that not

so?

A Eventually, yes.

(pause)

Q You say—

A Oh no, me? I never said that.

Q You say that that tumor, this tumor described by you in

your operative report on August 19th, as it’s been described

9AM

in this record, would've co-existed for 15 to 20 years without

causing symptoms but for the fact that some alleged sprain of

the neck occurred July 23rd, 1985.

(pause)

That's your testimony, isn’t it, sir?

A Yes.

10 AM

TESTIMONY OF DR. DERBY

(Hearing Transcript page 257)

Q Now, doctor, what is astrocytoma?

A An astrocyte is a type of cell in the central nervous sys-

tem which serves as support and maintenance to the other

cells which do the business. Those are the neurons and the

neurons have long fibers coming out from them that run to

wherever they're going to go and in the central nervous sys-

tem the astrocytes provide some structure, so this whole com-

plex of neurons and white matter and also nourish the cells

and the fibers.

x* * *

(at page 258)

Q Is astrocytoma curable?

A No. We manage it but we cannot cure it.

Q Is it a form of cancer?

A Yes, in lay terms it is cancer.

* * *

(at page 259)

Q Now the operative report first, doctor, would you tell us

what of significance to you is reflected in the report of the

operation.

A That this was a highly malignant astrocytoma centering

on the third and fourth cervical segments but in fact in total-

ity extending as high as the upper end of the laminectomy at

the base of the skull and extending as low down as the lower

end of the laminectomy at C-7, meaning that this tumor ran

from the upper most spinal cord with its connection to the

medulla, down through the entire cervical segments, all eight

of them and into the upper thoracic cord.

The character of the tumor at its central portion described

by Dr. Yazdan as a mushroom consisted of a thin out, fluc-

tuant, soft area which was not a cyst and this was by defini-

tion a necrotic area. Necrosis which is tissue death was

occurring within the tumor itself and this is a categoric find-

ing in the most malignant, the most aggressive kind of astro-

cytoma.

11 AM

REPORT OF OPERATION

NAME SANTORO, MICHAEL

SURGEON(S) DR. YAZDAN

* * *

PREOPERATIVE DIAGNOSIS QUADRIPLEGIA SECONDARY TO

CERVICAL MYELOPATHY SEC-

ONDARY TO INTERMEDULLARY

(sic) LESION.

POSTOPERATIVE DIAGNOSIS INTERMEDULLARY LESION OCCU-

PYING SEVERAL SEGMENTS OF

THE SPINAL CORD PREDOMI-

NATELY AT C3-C4 WHICH APPEAR-

ED TO BE MALIGNANT LOOKING.

NAME OF OPERATION DIFFUSE WIDE CERVICAL

LAMINECTOMY. INTRADURAL

EXPLORATION. MITRAL DISSEC-

TION OF THE TUMOR AND PAR-

TIAL RESECTION.

PROCEDURE: The patient was taken to the Operating Room

on 8/19/85 where under satisfactory general endotracheal

anesthesia, he was placed in prone laminectomy position lean-

ing on two chest rolls and the head resting on a horseshoe

cerebellar head rest. . . Following completed hemostasis,

laminectomy was started from C2 to TI, and following

unroofing of the canal, the laminectomy itself was widened to

the articular facet region. It was readily noted that the dura

was somewhat wider than (sic) C3-C4 area. . . Exploration

was Started with 6 power magnification which readily iden-

tified the area and the extramedullary portion of the intradu-

ral space was negative throughout except for spondylotic

changes which were readily noticeable with a protrusion of

most disc spaces. However, the prominent feature of the area

was the mushroom deformity from back part of the cord to C3

12 AM

and C4 which had totally destroyed normal anatomical feature

of the spinal cord and the cord was extremely wide in this

region. The top of the mushroom areas were quite thin and

fluctuant. . . Further exploration showed that the tumor was

extending deep in the cord and was extending upward more

than downward. Further removal of tumor was done and ini-

tial frozen section report was inconclusive. However, several

more pieces were sent and it was evident that even under 10

power magnification, that there was no line of demarcation

between this lesion and, the tumor and the cord. Therefore the

operation was terminated .

/s/

DAVID YAZDAN, M.D.

mc

D 8/21/85 T 8/21/85