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12/04/87 Bechtel Associates, P.C. v. Sally T. Sweeney and

December 4, 1987

CO., PETITIONERS

v.

SALLY T. SWEENEY AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DOL, RESPONDENTS 1987.CDC.511



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Bechtel Associates, P.C. and Lumbermens Mutual Casualty

Petition for Review of an Order of the Benefits Review Board.

APPELLATE PANEL:

Wald, Chief Judge, Mikva and Friedman,* Circuit Judges. Opinion for the Court filed by Chief Judge Wald.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

John A. Sweeney (Sweeney), worked as a tunnel inspector for petitioner Bechtel Associates, P.C. (Bechtel),1 from 1965 until a few months before he died of gastric carcinoma on June 8, 1980. His widow, Sally T. Sweeney (claimant), filed a claim under the Longshore and Harbor Workers' Compensation Act (the Act), 33 U.S.C. § 901 et seq., made applicable to the District of Columbia by the 1928 D.C. Workmen's Compensation Act, 36 D.C. Code § 501, et seq.2 His wife sought permanent total disability benefits, and her widow's death benefits, based upon Sweeney's pulmonary disease and stomach cancer, both of which she alleged arose out of his employment with Bechtel. The Administrative Law Judge of the United States Department of Labor first rejected Bechtel's contention that claimant had failed to give timely notice and to file a timely claim under § 12(a) and § 13(a) of the Act. He then concluded that while Sweeney's stomach cancer was not work-related, it had combined with Sweeney's lung condition which was work related to create a compensable permanent total disability under the Act. Bechtel was required to pay claimant full compensation for Sweeney's permanent total disability pursuant to § 8 (a) of the Act as well as death benefits pursuant to § 9. Finally, the ALJ denied Bechtel's request for relief under § 8(f) of the Act, which provides for the mitigation of an employer's compensation liability under certain conditions. See 33 U.S.C. § 908(f). The Benefits Review Board (the Board) affirmed the ALJ's findings. Bechtel now petitions this court for review of the Board's decision. We affirm the Board. I. BACKGROUND

John A. Sweeney was first employed by Bechtel from August 1965 until August 1967, as a chief tunnel inspector for a project in Colorado. Between May 1968 and June 1971, he also worked for Bechtel, supervising tunnel construction on a project near Modesto, California. In July 1968, Sweeney was hospitalized for several days with pneumonia of the left lung and pleuritis secondary to pneumonia. By October 1969, however, an examination revealed that both of Sweeney's lungs had cleared. See ALJ Order at 4.

In 1971 Sweeney was transferred by Bechtel to Washington, D.C., where he worked as a senior field engineer and chief tunnel inspector on the company's Metrorail Project until 1980. Most of Sweeney's work was underground near excavation activity involving drilling machines, explosives and other pulverizing devices which produced a continually dusty atmosphere. See Transcript of ALJ Hearing at 64-65. On January 3, 1972, Sweeney sought treatment from Dr. Nelson G. Goodman for a cough that had lasted more than a month. At that time, Dr. Goodman noticed rales -- which are abnormal respiratory sounds heard through a stethoscope -- in the base of Sweeney's left lung. Dr. Goodman believed that Sweeney had a clearing pneumonia. Sweeney's chest x-ray, however, revealed no abnormalities. On January 4, 1972, Dr. Goodman performed a complete physical examination of Sweeney and found no abnormalities of the lung. Dr. Goodman noted in Sweeney's medical history at that time that Sweeney reported he was sometimes short of breath; that Sweeney had had pneumonia and pleurisy in 1968; and that Sweeney had been exposed to rock dust and powder smoke during 30 years of working in tunnel construction. Based on the medical examination, Dr. Goodman listed various diagnostic "impressions," one of which was the possibility of some early fibrotic lung disease, such as silicosis. Dr. Goodman thought that such a condition "might have been from scarring associated with the inhalation of dust particles through the years." Dr. Goodman noted "silicosis" followed by a question mark on Sweeney's medical chart. ALJ Order at 4-5.

Dr. Goodman did not see Sweeney again for a major complaint until July 18, 1973, when Sweeney complained of continuing shortness of breath. Dr. Goodman noted some noises in the left lung base, but a chest x-ray proved to be normal. Dr. Goodman again noted "silicosis" followed by a question mark. Dr. Goodman saw Sweeney on several occasions in April 1974 due to complaints of chest pain. On some visits, Dr. Goodman noted the presence of rales; on others, he reported the lungs as clear. A breathing test conducted on April 14, 1974, suggested to Dr. Goodman the possibility of either obstructive or destructive lung disease, but when questioned at his deposition Dr. Goodman could not be sure whether he had discussed these results with Sweeney. See id. at 5.

Dr. Goodman's partner, Dr. Leonard Appel, next examined Sweeney on October 17, 1974, for a sore throat and an expectorant cough. See Deposition of Goodman at 24-26. Dr. Appel diagnosed bronchitis and possible silicosis and prescribed theophylline, an expectorant. Dr. Goodman performed a follow-up examination on October 30, 1974, and at this time "seemed more confident that he had some pulmonary fibrosis." He informed Sweeney that some pulmonary disease was present but could not recall whether he discussed the cause of the disease with him at that time. Sweeney was next examined on May 25, 1976, when his condition was found to have changed little, if at all; Dr. Goodman concluded that he had a stable pneumoconiosis, probably due to dust exposure. Sweeney was not treated again until 1978, when he was seen by Dr. Appel and diagnosed as having bronchitis and pleuritis. A chest x-ray showed no significant change from previous x-rays. See id. at 30.

In December 1979, Sweeney saw Dr. Appel with regard to a stomach complaint. On that occasion, Dr. Appel described Sweeney's lungs as clear. On January 12, 1980, Sweeney revisited Dr. Appel as a follow-up on his stomach condition. At that examination Dr. Appel heard a few rales in Sweeney's left lung. Dr. Appel referred Sweeney to Dr. Barry Epstein, a gastroenterologist, for further analysis of his stomach problem. Sweeney worked for Bechtel until February 6, 1980, a day before he was diagnosed as having stomach cancer. On February 9, he was admitted to the hospital for gastric surgery and remained there until February 21, 1980. Because the surgery revealed extensive cancer in the stomach and the regional lymph nodes, only a palliative resection of the stomach was performed. See id. at 31-35. On March 20, 1980, Dr. Goodman wrote Bechtel recommending that Sweeney retire from work:

Mr. John Sweeney suffers from a chronic lung condition probably caused by exposure to toxic substances associated with his work. He has recently developed stomach cancer. This condition has caused a general weakness which coupled with his lung condition makes him unable to work.

Sweeney died on June 8, 1980, from gastric carcinoma.

On October 6, 1980, his widow filed a claim under the Act for permanent total disability and death benefits based on Sweeney's work-related lung disease.3 In response, Bechtel contended that her claims were barred for failure to give timely notice under § 12(a) or to file a timely claim under § 13(a) of the Act. Bechtel contended in the alternative that Sweeney's permanent disability was not fully compensable under the Act, because (1) his employment-related lung condition was at most partial and temporary, and (2) Sweeney's nonwork-related stomach cancer had occurred subsequent to his lung disease and thus was not a pre-existing injury that in conjunction with ...


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