Operators and Consulting Servs., Inc. v. Director, OWCP - Opposition

No. 06-250

In the Supreme Court of the United States

OPERATORS AND CONSULTING SERVICES, INC., ET AL., PETITIONERS

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

HOWARD M. RADZELY
Solicitor of Labor

NATHANIEL I. SPILLER
Assistant Deputy Solicitor

EDWARD D. SIEGER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

Whether substantial evidence supports an administrative law judge's finding that an employer and its insurer are liable under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., for an employee's disability because the disability was the natural progression of a traumatic injury the employee sustained while working for the employer and was not aggravated by any injury during later work for a second employer.

In the Supreme Court of the United States

No. 06-250

OPERATORS AND CONSULTING SERVICES, INC., ET AL., PETITIONERS

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-13) is not published in the Federal Reporter but is reprinted in 170 Fed. Appx. 931. The decisions of the Benefits Review Board (Pet. App. 14-22) and administrative law judge (App., infra, 1a-24a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 31, 2006. A petition for rehearing was denied on May 22, 2006 (Pet. App. 31-32). The petition for a writ of certiorari was filed on August 18, 2006. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Longshore and Harbor Workers' Compensa tion Act (LHWCA or the Act), 33 U.S.C. 901 et seq., pro vides compensation for work-related injuries that result in covered maritime employees' disability or death. 33 U.S.C. 902(3), 903. The Act defines "injury" to mean, in relevant part, an "accidental injury or death arising out of and in the course of employment." 33 U.S.C. 902(2). "Disability" generally "means incapacity because of in jury to earn the wages which the employee was receiv ing at the time of injury." 33 U.S.C. 902(10).

The LHWCA makes "[e]very employer" liable for paying compensation to its employees for covered employment-related disabilities or death, "irrespective of fault as a cause for the injury." 33 U.S.C. 904(a) and (b); see 33 U.S.C. 908, 909. When more than one em ployer may be responsible for a work-related disability, the statute does not apportion liability among the em ployers. In cases involving traumatic injuries at more than one employer, a second or final employer is liable for the entire disability when "an employment injury worsens or combines with a preexisting impairment [or previous injury] to produce a disability greater than that which would have resulted from the employment injury alone." Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir. 1986) (en banc). See, e.g., Marinette Ma rine Corp. v. OWCP, 431 F.3d 1032, 1034 (7th Cir. 2005); Delaware River Stevedores, Inc. v. Director, OWCP, 279 F.3d 233, 241 (3d Cir. 2002). If the disability results solely from the natural progression of a prior injury, however, courts impose full liability on the employer at the time of the prior injury. See, e.g., Admiralty Coat ings Corp. v. Emery, 228 F.3d 513, 517 (4th Cir. 2000).

2. On October 16, 1997, respondent James Morrison injured his back while working for petitioner Operators & Consulting Services (OCS) as a field mechanic on an offshore oil platform. Pet. App. 2-3, 15; App., infra, 3a. Morrison received medical treatment from a chiroprac tor from October 1997 until February 1998. Pet. App. 3, 15; App., infra, 4a. After the injury, he continued to work, initially at light duty, and then at his regular du ties. Pet. App. 3, 15.

In May 1998, respondent Danos & Curole Marine Contractors took over the labor contract on the platform and retained Morrison as a field mechanic after he passed a pre-employment agility test. Pet. App. 3, 15- 16; App., infra, 5a. Later that month, Morrison re turned to the chiropractor, reporting not only lower back pain but also numbness and tingling pain in his left leg, symptoms which had first appeared in March 1998. Pet. App. 3, 16; App., infra, 5a, 20a. The chiropractor resumed treatment, and Morrison continued to work at several physically strenuous jobs, including a total en gine overhaul in which he worked 15-16 hours a day for seven days. Id. at 5a. Morrison reported that his back pain increased following strenuous jobs but got better following rest. Pet. App. 4; App., infra, 5a.

In September 1998, the chiropractor referred Morri son to a neurosurgeon. Pet. App. 4, 16; App., infra, 6a. Morrison's back pain continued to increase, and he stopped working in September 1998. Danos & Curole terminated his employment in October 1998. Ibid. Mor rison's condition continued to worsen after he stopped working, even without strenuous physical labor. Pet. App. 4; App., infra, 6a. After several more years of treatment, diagnostic tests revealed a disc herniation and nerve root impingement. Morrison underwent lum bar fusion surgery in July 2001. Pet. App. 4, 16; App., infra, 7a, 9a-11a. Although successful, the surgery left Morrison with an 18% whole body impairment and per manently limited him to light-duty work. Pet. App. 4; App., infra, 11a.

3. a. Morrison filed claims for disability compensa tion and medical expenses pursuant to the LHWCA, 33 U.S.C. 907, 908, against both employers. OCS agreed to pay the benefits, but claimed that Danos & Curole was liable for the full amount under the aggravation rule. At a formal administrative hearing held on January 23, 2003, the parties contested primarily the issue of which employer was liable. Pet. App. 5; App., infra, 2a-3a; see 33 U.S.C. 919(c) and (d). The administrative law judge (ALJ) concluded that OCS was liable because Morrison's disability was a natural progression of his October 1997 injury and not the result of any aggravation of that in jury while working for Danos & Curole. App., infra, 23a.

The ALJ acknowledged that whether Morrison's dis ability was a natural progression or an aggravation was primarily a medical determination. App., infra, 3a. The ALJ credited Morrison's description of his symptoms and the testimony of the neurosurgeon and chiropractor that the disability resulted from a natural progression of Morrison's October 1997 injury. Id. at 20a-23a. In par ticular, the ALJ found that Morrison's new symptoms of left leg tingling-which commenced in March 1998, while Morrison was still employed by OCS-indicated that the October 1997 back injury had not resolved itself by the time he was employed with Danos & Curole. Id. at 12a, 20a. The ALJ also noted that Morrison sought treatment in May 1998, after he started working for Danos & Curole, because of continuing pain over the preceding months. Id. at 20a. Although the ALJ noted that it was not possible to place a definitive date on the origin of Morrison's disc problem, ibid., the ALJ placed great weight on the neurosurgeon's statements that a back condition can deteriorate on its own, in spite of either work or rest, id. at 22a, and that Morrison's epi sodes of pain were most likely "flare-ups" not necessar ily correlated with further physical damage, id. at 12a, 22a.

b. The Benefits Review Board (BRB or the Board) affirmed the ALJ's decision. Pet. App. 14-22. The Board concluded that the ALJ applied the correct legal standard in deciding whether employment at Danos & Curole aggravated Morrison' s October 1997 injury, and that the ALJ' s finding of no aggravation was supported by substantial evidence. Id. at 18-20; see 33 U.S.C. 921(b)(3).

c. The court of appeals affirmed.1 Pet. App. 1-13. The court stated that "for the second or last employer to be liable" for an injury that occurred during earlier em ployment, "there must be evidence of additional trauma or damage that * * * occurred in the course of the sec ond or last employment." Id. at 8 n.2. The court con cluded that substantial evidence supported the ALJ's factual finding that Morrison's disability resulted from the natural progression of his October 1997 injury. Id. at 10-13. The court cited the equivocal medical testi mony before the ALJ and concluded that the ALJ acted reasonably in crediting the doctors' ultimate conclusion that there was no aggravation during Morrison's em ployment with Danos & Curole. Id. at 13.

ARGUMENT

The court of appeals' decision is correct and does not conflict with any decision of this Court or any other court of appeals. Further review therefore is not war ranted.

1. Petitioners do not dispute that they would be lia ble for benefits if Morrison's disability resulted from the natural progression of his October 1997 injury and not from an aggravation of that injury during subsequent employment. They argue, however, that the Fifth Cir cuit misapplied the test for determining aggravation by suggesting that aggravation requires a "traumatic event." Pet. 5.

Petitioners misconstrue the court of appeals' state ment. After setting forth the general rule that "a second or final employer * * * is liable under the aggravation rule for the entire cost of an employee's disability if the preexisting impairment was aggravated during the course of the employee's second or final employment," Pet. App. 7, the court stated that aggravation must be shown by "evidence of additional trauma or damage that * * * occurred in the course of the second or last employment." Id. at 8 n.2 (emphasis added). "Addi tional trauma or damage" does not necessarily mean a single additional traumatic event. The damage can oc cur gradually. The Fifth Circuit's rule therefore is con sistent with the rule applied in other circuits. See, e.g., Marinette Marine Corp. v. OWCP, 431 F.3d 1032, 1035 (7th Cir. 2005); Delaware River Stevedores, Inc. v. Di rector, OWCP, 279 F.3d 233, 241-242 (3d Cir. 2002).

2. a. Substantial evidence supported the ALJ's fac tual finding that Morrison's disability resulted from the "natural progression" of his initial injury. Pet. App. 13; see 33 U.S.C. 921(b)(3) (stating that findings of fact are "conclusive if supported by substantial evidence in the record considered as a whole"). Substantial evidence is "more than a mere scintilla. It means such relevant evi dence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). As the court of appeals noted, the medical evidence before the ALJ was equivo cal. Pet. App. 10-12; see App., infra, 12a-13a. But Mor rison's neurosurgeon made several statements that sup ported the ALJ's conclusion: that Morrison's condition was due to a natural progression, that a change in symp toms did not necessarily indicate a change in the under lying condition or further physical damage to the area, and that Morrison's pain could get worse over time with out additional damage to the disc. App., infra, 12a-14a; see Pet. App. 11 n.3; see also id. at 12 n.4 (citing testi mony of chiropractor). The ALJ also considered Morri son's own testimony and that of his chiropractor, and found them all consistent with the conclusion that Morri son's injury was not aggravated by his subsequent em ployment. App., infra, 20a-23a. Although a different factfinder may have credited different evidence to reach a different conclusion, the court of appeals correctly deferred to the ALJ's reasonable determination. See Consolo v. FMC, 383 U.S. 607, 620 (1966) ("[T]he possi bility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency' s finding from being supported by substantial evidence."); Ethyl Corp. v. EPA, 541 F.2d 1, 25 n.53 (D.C. Cir. 1976) (en banc).

b. Petitioners argue (Pet. 8-14) that the court of ap peals' decision cannot be reconciled with four decisions of two other courts of appeals. Differences in the appli cation of the "substantial evidence" test are highly fact- specific and rarely warrant this Court's review. This is especially so in a case like this one, in which the ALJ was called upon to weigh competing medical evidence and render a conclusion as to medical causation.

In any event, the cases petitioner cites are factually distinguishable. In each case, the court of appeals found substantial medical evidence that the second or final employment injury physically aggravated the underly ing condition. In Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co., 339 F.3d 1102 (9th Cir. 2003), there was evidence that the employee experienced "gradual wearing away of the bone" every day he worked. Id. at 1105. In Delaware River Stevedores, the only credible medical evidence in the record suggested two distinct "injuries." 279 F.3d at 242. In Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621 (9th Cir. 1991), the only testifying doctor who examined the employee stated that the additional strenuous work was "harmful," id. at 624, and other witnesses also attrib uted the injury to "cumulative trauma." Ibid. Finally, in Kelaita v. Director, OWCP, 799 F.2d 1308 (9th Cir. 1986), there was evidence that the employee's repetitive activity inflicted "cumulative trauma" that "aggravated the underlying injury." Id. at 1312. In this case, there was no direct evidence that repetitive activity at Danos & Curole caused further damage to Morrison's underly ing injury. See App., infra, 23a. In the absence of such evidence, the ALJ could reasonably conclude, based on the doctors' testimony, that no aggravation took place.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

HOWARD M. RADZELY
Solicitor of Labor

NATHANIEL I. SPILLER
Assistant Deputy Solicitor

EDWARD D. SIEGER
Attorney
Department of Labor

NOVEMBER 2006

1 A panel of the Fifth Circuit initially denied the petition for review without hearing argument. Pet. App. 23-29. The court subsequently vacated that judgment sua sponte and scheduled the case for argument. Id. at 30.