On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor. B.R.B. No. 89-443.
Before: Hutchinson, Scirica, and Rosenn, Circuit Judges.
We recently had before us the question of whether the "true doubt" rule could be properly applied in the resolution of a claim for benefits under the Black Lung Benefits Act. We concluded it could not. Greenwich Collieries v. Director, OWCP, 990 F.2d 730,, (3d Cir. Mar. 23, 1993). This petition for review of a decision of the Director, Office of Workers' Compensation Programs, raises a comparable question relating to the claimant's burden of proof in cases involving the Longshore and Harbor Workers' Compensation Act (Act), as amended, 30 U.S.C. §§ 901-45 (1982). The ALJ in the present case used the true doubt rule, which calls for the resolution of all true doubts in favor of the claimant, to award benefits to the claimant under the Act despite evidentiary equipoise. The issue in this case is whether the Administrative Procedure Act, 5 U.S.C. §§ 501 et seq. (1992) (APA), prohibits the application of the true doubt rule in cases involving the Act.
This proceeding originated when Pasqualina Santoro (Mrs. Santoro), the widow of the late Michael Santoro (Decedent), filed a claim under section 9 of the Act against Maher Terminals, Inc. (Maher), for temporary total disability benefits due the decedent during his lifetime and death benefits on account of his injury and death. See 33 U.S.C. §§ 908(b), 909.
Following a hearing, at which the parties vigorously contested whether the disability and death were work-related, the Administrative Law Judge (ALJ) found the evidence on the question evenly balanced and resolved his doubts in favor of the claimant. He awarded benefits and denied a motion for reconsideration. The petitioner, Maher, appealed to the Benefits Review Board (Board) of the United States Department of Labor, which sustained the ALJ in an unpublished decision. It then timely appealed to this court. We vacate the Board's order and remand the case for further consideration consistent with this opinion.*fn1
Because this appeal turns on an interpretation of a narrow question of law, i.e., whether the true doubt rule, as utilized in this case under the Act, contravenes the APA, there is no need to embark on a rendition of the voluminous medical and factual details which are involved in this litigation. We recite only those facts necessary to gain insight into the underlying issues of this appeal.
On July 23, 1985, the decedent, who was then 62 years old, reported an accidental injury while employed by Maher at Port Elizabeth, New Jersey. The claimant testified that on that day, the decedent was driving a vehicle off of a ship at Maher's port. Then, in order to avoid a shackle that was swinging towards him, the decedent threw his body to the right and jerked the back of his neck.
The next day, the decedent visited Dr. Visconti, who diagnosed the injury as a strain of the right and left trapezius muscles. The doctor released the decedent to return to work on July 31, 1985. The decedent returned to work on August 1 for four hours in the employ of International Terminal Operating Company, and on August 2 for one full day in the employ of Maersk Container Service Company. On August 3, the decedent and his wife began a long-scheduled vacation to the New Jersey Shore, which Dr. Visconti had approved.
During his vacation, the decedent began to experience numbness in the fingers of his left hand, as well as continuing shoulder and neck pain, prompting him to visit Dr. Greifinger, an orthopedic surgeon. Dr. Greifinger reported a diagnosis of cervical strain on a preexisting spondylosis.
The decedent continued his vacation, but called Dr. Visconti on August 14 concerning increased neck and shoulder pain, as well as a new pain in the left arm. Dr. Visconti advised him to go to the hospital for a heart examination, which the decedent did. Finding nothing wrong with his heart, the doctors at the hospital released the decedent, counseling him to wear a neck brace and to take medication. His wife testified that the next day her husband was unable to get out of bed because of numbness in his left arm. Thereupon, he was admitted to a hospital at Point Pleasant, New Jersey.
At the hospital, Dr. Weinstein, following a physical examination and myelogram, diagnosed the patient's condition as a cervical thoracic root avulsion and cervical thoracic myelopathy, and he recommended further testing. On August 18, 1985, Dr. David Yazdan, a neurosurgeon, examined the decedent, and Dr. Yazdan suspected a possible intramedullary tumor or a cystic formation within the spinal cord and recommended immediate surgery. Upon operating on the decedent the next day, Dr. Yazdan found a tumor on the spinal cord, which he identified as an astrocytoma. Subsequently, Santoro was transferred to the Veterans Administration Hospital at Orange, New Jersey, where he died in March 1986.
Our review of questions of legal interpretation is plenary. See e.g., Carozza v. United States Steel Corp., 727 F.2d 74, 77 (3d Cir. 1984).
In bringing a claim pursuant to the Act, the claimant bears the initial burden of production, i.e., to establish a prima facie case that he suffered an injury and that employment conditions were sufficient to cause the injury. A failure to carry this initial burden defeats the claim. If the claimant establishes a prima facie case, then he or she is entitled to a rebuttable presumption under the Act that the injury was work-related and thus compensable. If the employer successfully rebuts the presumption, the factfinder must resolve the factual dispute on the basis of the evidence as a whole. Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 80 L. Ed. 229, 56 S. Ct. 190 (1935).
The problems in many cases, as in this proceeding, is that the factfinder finds the evidence so close that he or she is beset by grave doubt as to the critical issue. Some courts have held that, when considering the evidence on the record as a whole, the Judge may resort to the true doubt rule:
[The factfinder] operates under the statutory policy that all doubtful fact questions are to be resolved in favor of the injured employee because the intent of the statute is to place the burden of possible error on those best able to bear it." Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir. 1986). In effect, the statute eases the ordinary preponderance of the evidence standard applicable in most civil suits. Id.
Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90-91 (5th Cir. 1990) (emphasis added); see also Fidelity & Casualty Co. v. Burris, 61 App. D.C. 228, 59 F.2d 1042, 1044 (D.C. Cir. 1932) ("Where there is doubt, it should be resolved in favor of the injured employee or his dependent family."); Parsons Corp. of Cal. v. Director, OWCP, United States Dep't of Labor, 619 F.2d 38, 41 (9th Cir. 1980); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir. 1978); Freeman United Coal Mining Co. v. OWCP, 988 F.2d 706,, (7th Cir. Mar. 4, 1993).
The genesis of the true doubt rule may be found in Burris, 59 F.2d at 1044:
The underlying purpose of all compensation laws is to provide money indemnity in case of injury where there is no assignable fault. Accidents in industry are inevitable, and the enactment of compensation laws grew out of a general recognition of a duty owing by society to an injured employee to secure him protection, and this the act seeks to accomplish through the means of insurance built up by premiums paid by ...