ON PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR AT NOS. 78-541 AND 77-102
Before Seitz, Chief Judge, Rosenn and Sloviter, Circuit Judges.
Jessie Walker, a longshoreman, died while at work unloading a vessel on August 21, 1971. His widow, Methel Walker,*fn1 filed a workmen's compensation claim under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976 & Supp. III 1979). An administrative law judge (ALJ) denied the claim, finding that Walker's death was caused solely by intoxication. The Benefits Review Board (BRB) reversed on the ground that the ALJ's decision was not supported by substantial evidence. Following a remand to the ALJ for computation of the amount of compensation and a subsequent affirmance by the BRB, the decedent's employer, Universal Terminal & Stevedoring Corp., and its insurance carrier, Midland Insurance Co., petitioned this court for review. We grant the petition and, concluding that the decision of the ALJ was amply supported by substantial evidence, reverse the decision of the BRB.
On August 20, 1971, Walker, a longshoreman employed by Universal Terminal & Stevedoring Corp., was assigned to work on the vessel American Legend at Port Newark, New Jersey. He began work at approximately 1 p. m. on the deck of the ship with a fellow longshoreman, Lindo Pugh. Their sole task was attaching hooks from the large overhead crane to the top of hatch covers so that the hatch covers could be removed making the cargo below accessible. In carrying out their assignment that afternoon, Walker and Pugh climbed on top of a hatch, an elevation of five to six feet above the deck. They reached the top by climbing short ladders along the sides of the hatch. After they had assisted in attaching the cable from the crane to the hatch cover, each man prepared to descend from the cover. Pugh grabbed an adjacent cable and slid the short distance down it to the deck. Walker was observed crouching as if to jump to the deck. No one saw him actually alight from the hatch cover. Several minutes later, Pugh went looking for him and found Walker lying unconscious on the deck beside the hatch. Nearby, permanently attached to the deck, was a 21/2 or 3 inch pipe. This pipe ran parallel to the deck a few inches above the surface. Pugh saw no indication, however, that Walker had struck the pipe or the deck.
Pugh obtained assistance and with the aid of the crane, operated throughout that afternoon by Edward Muse, Walker was removed from the ship on a stretcher. He was pronounced dead on arrival at the hospital. The specific physiological cause of death is not at issue: Walker, in a semi-conscious state, had vomited, aspirated the vomit, and asphyxiated. In dispute is what triggered these events. The claimant argues that either falling or jumping from the hatch cover, Walker struck his head and was rendered partially unconscious. The employer and insurance carrier contend that Walker became partially unconscious solely as a result of the intoxication. As is often the case, each side presented medical testimony in support of its position at the hearing on the workmen's compensation claim.
Relying on the evidence produced at the administrative hearing, the ALJ concluded that Walker's death was caused solely by his intoxication. To reach this conclusion he specifically credited the testimony of Dr. Milton Halpern and rejected, on one point, the testimony of Dr. Thomas Santoro. On appeal of the claimant, the Benefits Review Board of the United States Department of Labor reversed, holding that the ALJ's decision was not supported by substantial evidence.
This court previously has considered the initial and review procedures appropriate in cases involving claims for compensation under the LHWCA:
A disputed claim for compensation is first heard before an ALJ. The ALJ makes findings of fact and determines the validity of the claim. 33 U.S.C. § 919. The losing party may appeal to the BRB which reviews the ALJ's decision but it does not make any independent findings of fact. 33 U.S.C. § 921. The statute provides for the BRB's scope of review: "The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3).
A dissatisfied litigant may then file a petition for review of the BRB decision in the United States court of appeals. 33 U.S.C. § 921(c). The statute does not set forth the standard of review to be applied in the court of appeals. Case law has established, however, that this court is to review the decisions of the Benefits Review Board for errors of law, and to make certain that the BRB adhered to its scope of review provision. Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73, 76 n.12 (3d Cir. 1978); Director, OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 454 (3d Cir. 1978); Presley v. Tinsley Maintenance Service, 529 F.2d 433 (5th Cir. 1976).
It is true that this court does not determine if the Board's decision is supported by substantial evidence; we review the Board's determination of whether the ALJ's decision is supported by substantial evidence. In order to determine whether the Board has properly adhered to its scope of review, the court of appeals must make an independent review of the record and decide whether the ALJ's findings are supported by substantial evidence.
Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979) (footnote omitted).*fn2 This approach reviewing the Board's determination of whether the ALJ's decision was supported by substantial evidence, rather than determining whether the BRB's decision was supported by substantial evidence is followed in other circuits. Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327, 1329 & nn.1 & 2 (9th Cir. 1980); Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1119 n.1 (5th Cir. 1980); Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 196 U.S. App. D.C. 417, 606 F.2d 1324, 1326 (D.C.Cir.1979), rev'd on other grounds, 449 U.S. 268, ...