The Second Circuit recently restated the rules for applying the section 20 presumption to occupational disease cases (33 U.S.C.S. § 920(a) of LHWCA, 33 U.S.C.S. § 901 et seq.).  In Stanhope v. United States Department of Labor, No. 07-3560-ag, 310 Fed. Appx. 459, 2009 U.S. App. LEXIS 3248 (2d Cir. Feb. 18, 2009),¹ a short unpublished summary order, the Court re-emphasized that the employer has a substantial burden to carry in rebutting the presumption.

While the specific errors which the Court addressed are not likely to be common, the rationale behind Stanhope and the case of Rainey v. Director, OWCP, 517 F 3d 632, 42 BRBS 11(CRT) (2d Cir 2008), must be viewed in light of the principle that the  purpose of passing the Longshore Act was a humanitarian one, to provide a remedy for injured workers, and that the duty of the U.S. Department of Labor is to provide vigilance in protecting those workers.  The administrative law judge must resolve doubts in favor of the worker.

Stanhope and Rainey involved asbestos exposed workers who developed lung cancer, but may, or may not have also developed asbestosis.  Mr. Stanhope worked at Electric Boat for some forty years with significant exposure to asbestos.  He smoked cigarettes for a time at a moderate rate of three to five packs a week.  In the 1960s he developed tuberculosis, resulting in the removal of a part of his lung.

In 2001 Mr. Stanhope was found to have lung cancer and was required to endure radiation and chemotherapy.  He eventually died of his disease.

Dr. Martin Cherniack is board certified in occupational medicine and has a masters degree in public health, as well as a medical degree.  He served at NIOSH and the Centers for Disease Control where he studied occupational afflictions.  He was a professor of Occupational Medicine at Yale University where he directed an Occupational Health Center, monitoring and studying occupational diseases at the employer’s shipyard.  He was a project manager of a project which studied lung cancer in asbestos exposed groups.  He is also a Professor of Occupational Medicine at the University of Connecticut.

Dr. Cherniack noted that the issue of whether asbestos causes lung cancer has been extensively studied, and that the general consensus is that asbestosis and lung cancer are separate entities. Asbestos causes cancer and scarring of the lungs, so it is common to find both diseases in asbestos exposed persons, but one does not need to find asbestosis to attribute a cancer to asbestos exposure.  He reported that this issue has been reviewed by at least two consensus-setting conferences called specifically to review this issue.  One was held in Helsinki, Finland, and another in Adelaide, Australia.  The Helsinki Conference and Adelaide Conference (AWARD) reached scientific consensus that one could attribute cancer to asbestos in asbestos exposed individuals solely based on exposure alone, even in the absence of radiographically visible scarring.

Dr. Cherniack noted that  this conclusion has been confirmed by numerous studies, and that the scar theory of carcinogenesis has been discredited.  He concluded that Mr. Stanhope’s cancer had been contributed to by his exposure to asbestos.  This opinion was ratified by two of Mr. Stanhope’s attending physicians.

The employer offered the opinions of an internist and a pulmonologist who followed the minority position that requires scar tissue to make the attribution (attributing cancer to asbestos exposure).  They admitted that  their position was controversial and that a substantial number of authors of studies disagreed with their conclusions.

This matter was complicated by the fact that Mr. Stanhope’s x-rays clearly showed scarring, which was either due to asbestosis or radiation treatment for his cancer.  Dr. Cherniack concluded that it was 90% certain that some of this scarring was due to asbestosis.  The employer’s experts suggested the scarring was due to radiation but acknowledged it was also consistent with asbestosis.

The Court concluded that Dr. Cherniack’s qualifications and experience were superior to those of the other experts, and acknowledged that there seemed to be a scientific consensus developing that one did not need to have asbestosis to attribute cancer to asbestos exposure.  The Court rejected the hypothesis offered by the employer’s experts that it is asbestos related scarring that causes cancer.  It acknowledged that if the scientific evidence was that Mr. Stanhope had had the exposure he testified to, then one must attribute his cancer to the exposure.

Despite these findings the Court then noted that although Dr. Cherniack’s opinions were based on superior experience and knowledge and were supported by better and more persuasive science and medical consensus, in the absences of the adoption of these findings by American standard setters and/or Congress, it could not make such an attribution and award benefits.  The Court stated that if the scientific evidence showed that 25 fiber years of exposure was sufficient to infer that such exposure was a causative agent, then one would be required to make such an attribution in all such cases, even in the absence of “objective evidence” of such a causative link.  The Court did not explain what objective evidence would be required since there was no doubt that there was “objective evidence” of the cancer and that exposure was proven in Stanhope.

This analysis and indeed the language used by the Court was essentially similar to that rejected by the Second Circuit in Rainey, and it was not surprising that the Circuit Court in Stanhope stated: “[w]e conclude that the ALJ’s conclusions that Electric Boat successfully rebutted the Section 920(a) presumption were afflicted with the same problems that caused us to reverse in Rainey....”

In Rainey the Second Circuit noted that the mere fact that there was some degree of disagreement in the medical community over whether asbestos attribution of cancers requires a finding of asbestosis is insufficient for rebuttal of the section 20(a) presumption.  The employer cannot overcome the presumption by pointing to the controversy or by mere submission of  “any evidence.”  The Administrative Procedure Act (APA) (5 U.S.C.S. § 551 et seq.) requires that the employer come forth with “reliable, probative and substantial evidence.”

In Rainey the Second Circuit noted that the very import of the section 20(a) presumption is that  all controversies and doubts are to be resolved in favor of the claimant. What the ALJ overlooked is that the Congress has made a policy decision that such claims are difficult to prove and that there should be a presumption in favor of industrial causation.

In Stanhope there were failures to apply the presumption at two levels.  All of the experts agreed that if Mr. Stanhope had asbestos related scarring, his cancer was work related.  All of them agreed that he had scarring which was due either to (a) asbestos, (b) radiation for his cancer, or (c) a combination of (a) and (b).  Dr. Cherniack acknowledged that the cause of Stanhope’s cancer could not be known with absolute certainty but that it was 90% certain that asbestos exposure caused some of it.  The employer’s experts opined that the cause was likely to be radiation but acknowledged that the cause was also consistent with asbestos induced disease.  Thus there was an agreement that Stanhope had an injury consistent with work exposures and exposures consistent with the disease.  This is precisely the fact pattern the presumption is designed to resolve in favor of the claimant.  Arguably the claimant won on this testimony and the presumption.  In order to rebut the presumption the employer was required not merely to produce an opinion that Stanhope did not have asbestos related scarring, but that there was a reliable and probative basis for this opinion.  There is no presumption that Stanhope’s cancer was entirely caused by radiation.

At a second level the Court in Stanhope erred since it made specific findings that the better evidence and more reasoned opinion was that it was not necessary to find asbestos generated scarring in order to attribute the cancer to asbestos exposure.  The Court noted that some controversy existed, but that the controversy was not founded on scientifically supported evidence.  Under these circumstances, the mere statement of a witness that there was no industrial causation was not substantial evidence to rebut the presumption.  An opinion alone, even when stated with reasonable medical probability, is not substantial evidence without a proper factual and scientific foundation.  The Court had to look beyond the opinion to determine if it was based upon ”probative, reliable and substantial evidence.”

In evaluating the evidence the Court cannot simply adopt an opinion, or find that merely because an expert expresses it, a reasonable person could credit it.  Instead the Court must inquire as to whether there was a reliable and probative basis for the opinion and whether a reasonable judge could believe the underlying factual basis for the opinion.

In performing such an evaluation the court must be skeptical.  The employer bears the burden of proving by substantial evidence that the exposure could not have reasonably caused the injury, APA, 5 U.S.C.S. § 556(d), Barscz v. Director, OWCP, 486 F.3d 744, 752, 41 BRBS 17(CRT) (2d Cir. 2007).  Even at this level the claimant is supported by the humanitarian purpose of the Act, which requires that all doubtful questions must be resolved in her favor.

In Stanhope and Rainey, at the end of the day there was some doubt, despite the fact that the better experts and the better science and medical consensus tipped the scales in favor of the claimant, and there was a possibility that the injury was not work related.  Doubt is at the core of human existence, but the existence of some doubt does not prohibit a decision in claimant’s favor.

In Mr. Stanhope’s case there was a possibility the scarring was entirely due to radiation treatment.  The presumption was that it was due to asbestos.

There remains some dwindling controversy over the need to find asbestosis to make the attribution.  But the humanitarian nature of the Act requires that this doubt be resolved in favor of the claimant.

Did there need to be some “objective evidence” linking the exposure and the disease?  No, there is a scientific consensus that asbestos exposure causes cancer without such evidence.  The legal presumption is that this consensus is correct.

Footnote 1

The full text of the Second Circuit’s February 18, 2009, Summary Order in Stanhope reads as follows:

SUMMARY ORDER

AFTER ORAL ARGUMENT AND UPON CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the Benefits Review Board be and hereby is REVERSED and REMANDED.

Claimant-petitioner Dora Stanhope, dependent widow of Enos Stanhope, petition for review of a Decision and Order of the Benefits Review Board ("BRB") dated June 27, 2007, affirming the Decision and Order of the Administrative Law Judge ("ALJ") dated August 3, 2006, dismissing her claim for death benefits under Section 9 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 909. Upon review, we conclude that the ALJ's conclusions that Electric Boat successfully rebutted the Section 920(a) presumption were afflicted with the same problems that caused us to reverse in Rainey v. Director, Office of Workers' Compensation, 517 F.3d 632 (2d Cir. 2008). Accordingly, we GRANT the petition for review and REVERSE and REMAND to the BRB for a determination of benefits in line with Rainey.

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