m-i llc, et al v. dowcp, et al petition for appellate review/ underlying order

8/3/2019 M-I LLC, et al v. DOWCP, et al Petition for Appellate Review/ Underlying Order

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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SHANNON FREDERICK )

(Widow ofBLAKE FREDERICK) ~ 1 1 - 6 0 6 9 4 versus ) PETITION FOR REVIEW

)

M-I DRILLING FLUIDS COMPANY )

AND ACE AMERICAN INSURANCE COMPANY )

NOW INTO COURT, come petitioners, M-I LLC d/b/a M-I SWACO (incorrectly

- ~ - \ - -referred to as M-I Drilling Fluids Company) and Ace American Insurance Company

hereby petition the Court for review of the attached Decision and Order of the Benefits

Review Board, Case No, 11-0135, entered on August 25,2011.

Respectfully submitted:

WEISS & EASON, L.L.P.

{tJ}i--TOBI . EASON (La. Bar #5250)

Post Office Box 8597128 Century Oaks Lane (70471)

Mandeville, Louisiana 70470

Telephone: (985) 626-5358

t_ [email protected]

Attorney for Employer/Carrier, M-I LLC

d/b/a M-I SW ACO and Ace American

Insurance Company

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have on this10

th

dayof

October, 2011, served a copy

of the Petition for Review to the following parties, via U.S. Mail, postage prepaid.

Frank E. Lemoine, Esq.

P.O. Box 1199

Abbeville, LA 70511

OCT 1 2 2011

--_._--- --

Case: 11-60694 Document: 00511630271 Page: 1 Date Filed: 10/12/2011

mailto:[email protected]





Shannon Frederick

14609 Moss Street

Erath, Louisiana 70533

Thomas O. Shepherd, Jr.

Clerk of the Board

Benefits Review Board

U.S. Department ofLabor

P.O. Box 37601

Washington, D.C. 20013-7601

Honorable Clement Kennington

Administrative Law Judge

Office ofAdministrative Law Judges

5100 Village Walk, Suite 200

Covington, LA 70433

David A. Duhon, District Director

Seventh Compensation District

U.S. Department ofLabor

Employment Standards Administration

Office ofWorker's Compensation Programs

P.O. Box 30728

New Orleans, Louisiana 70190

Rae Ellen James, Esq.

Associate Solicitor

U.S. Department of Labor200 Constitution Avenue, N.W.

Suite N-2117, NDOL

Washington, DC 20210

Yelena Zaslavskaya, Esq.

Office of the Administrative Law Judge

Techworld Plaza

800 K. Street NW, Suite 400Washington, DC 20210




U.S. Department of Labor Benefits Review Board

P.O. Box 37601

Washington, DC 20013-7601

BRB Nos. 11-0135

SHANNONFREDEruCK )NOT·PUBLISHED

(Widow ofBLAKE FREDEruCK) )

)

Claimant-Respondent )

v.

M-I DRILLING FLUIDS COMPANY

)

) DATE ISSUED: AUG 2 5 2011

)

and )

)

ACE AMEruCAN INSURANCE )

COMPANY )

)

El!lployer/Carrier )

Petitioners ) DECISION and ORDER

Appeal of the Decision and Order of Clement 1. Kennington,

Administrative Law Judge, United States Department of Labor.

Frank Lemoine, Abbeville, Louisiana, for claimant.

Tobin J. Eason (Weiss & Eason, L.L.P.), Mandeville, Louisiana, for

employer/carrier.

Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY

and HALL, Administrative Appeals Judges.

PERcUruAM:

Employer appeals the Decision and Order (2009-LHC-l654) of Administrative

Law Judge Clement J. Kennington rendered on a claim filed pursuant to the provisions of

the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et

seq. (the Act). We must affirm the administrative law judge's findings of fact and

conclusions of law if they are supported by substantial evidence, are rational, and are in

accordance with law. 33 U.S.C. §921(b)(3); O'Keejfe v. Smith, Hinchman & Grylls

Associates, Inc., 380 U.S. 359 (1965).




Claimant's husband (the decedent) was employed by employer as a liquid mud

man. On November 20, 2006, the decedent and a co-worker , Mr. Tarver, were preparing

a 2,500 barrel order of drilling fluids. In preparing these barrels, the decedent was

required to cut open, pour, and mix bags of lime and "V G Supreme" into tanks of diesel

fuel. While performing these employment duties, during which time he was exposed to

lime dust and diesel fumes, the decedent appeared to pass out and was unresponsive for aperiod of time. The decedent subsequently complained of difficulty breathing and was

taken by ambulance to the hospital where he remained until November 28, 2006. On

December 1 2006, the decedent was taken to a hospital emergency room where he

expired.

In his Decision and Order, the administrative law judge found, inter alia, claimant

entitled to invocation of the presumption at Section 20(a), 33 U.S.c. §920(a), linking the

decedent's death to his employment with employer. The administrative law judge found

that employer rebutted the presumption and, after weighing the totality of the evidence,

concluded that claimant met her burden of establishing a causal connection between thedecedent's death and his employment with employer Accordingly, the administrative law

judge awarded death benefits to claimant and the decedent's minor child. 33 U.S.c.

§909(b).

On appeal, employer contends the administrative law judge erred in finding that

the decedent's death was causally related to his employment. Claimant responds, urging

affirmance of the administrative law judge's decision. Employer has filed a reply to

claimant's response.

Claimant bears the initial burden of establishing the occurrence of a work-relatedaccident or that working conditions existed which could have caused the decedent's

death. I See Us. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608,

14 BRBS 631 (1982); Gooden v. Director, OWCP, 135 F.3d 1066,32 BRBS 59(CRT)

(5th

Cir. 1998); Bolden v. G.A.TX Terminals Corp., 30 BRBS 71 (1996). If claimant

establishes her prima facie case, the Section 20(a), 33 U.S.c. §920(a), presumption

applies to link the decedent's death to his employment with employer. See Port

Cooper/T Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th

Cir.

2000); Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th

Cir.

1999).

ISection 9 of the Act, 33 U.S.c. §909, provides for death benefits to certain

survivors "if the injury causes death."

2




Employer does not challenge the administrative law judge's finding that decedent

was diagnosed with, inter alia, blood clots, a blockage of his pulmonary artery, and that

the decedent subsequently died due to a pulmonary embolism. Decision and Order at 15.

Employer contends, however, that the administrative law judge erred in invoking the

Section 20(a) presumption because, it asserts, claimant did not affirmatively establish a

causal connection between the decedent's alleged inhalation of diesel fumes and limedust and the development of his ultimately fatal pulmonary emboli. We reject

employer's contentions of error regarding claimant' s prima facie case.

Contrary to employer's argument, claimant is not required to prove that working

conditions in fact caused the decedent's harm in order to invoke the Section 20( a)

presumption; rather, claimant need establish only the existence of working conditions

which could have caused the harm. See, e.g., Port Cooper, 227 FJd 285, 34 BRBS

96(CRT); Brown v. I.TT.lContinental Baking Co., 901 F.2d 289, 24 BRBS 75(CRT)

(D.C. Cir. 1990); Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1993). Thus, the

"working conditions'" or "accident" prong of a claimant's prima facie case requires thatthe administrative law judge determine whether the alleged employment events in fact

occurred. See Noble Drilling Co. v. Drake, 795 F.2d 478, 19 BRBS 6(CRT) (5th

Cir.

1986).

In this case, the administrative law judge, having previously credited the testimony

of Mr. Tarver regarding the working conditions he and the decedent experienced on

November 20, 2006,2

see Decision and Order at 10, found that claimant established that

the decedent was exposed to lime dust and diesel fuel while at work, and that these

exposures constituted the existence of working conditions which caused or could have

caused the damage to the decedent"s pulmonary artery which ultimately lead to hisdemise. 1d. at 15. Moreover, claimant submitted Dr. Laga's opinion that the decedent's

death was related to these workplace exposures. See infra; Tr. at 49-11. Employer has

cited no evidence that the decedent was not engaged in the work activities described by

Mr. Tarver prior to his collapse and hospitalization; rather, employer, noting that the

decedent worked with the wind to his back, with a filter mask, and that no other similar

claims have been presented, questions only whether the decedent sustained an inhalation

injury. Substantial evidence of record supports the finding that decedent sustained an

inhalation injury and that decedent was exposed to substances that could have caused the

injury that led to his death.3 On these facts, we affirm the administrative law judge's

2Mr. Tarver, in describing the decedent's mixing ingredients on November 20,

2006, testified that the decedent was covered with lime dust and that he could smell

diesel fumes. See EX L at 6, 15-16.

3




finding that the Section 20(a) presumption was invoked. Port Cooper, 227 F.3d 285, 34

BRBS 96(CRT).

Upon invocation of the Section 20(a) presumption, the burden shifts to employer

to rebut it with substantial evidence that the decedent's death \Vas not caused or hastened

by his employment. Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 37 BRBS

35(CRT)(5th

Cir.), cert. denied, 540 U.S. 1056 (2003): Finenwl1 v. Newport News

Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993). If the administrative law judge

finds that the Section 20(a) presumption is rebutted, he must weigh all of the evidence in

the record and resolve the causation issue based on the record as a whole, with claimant

bearing the burden of persuasion. See Gooden, 135 F.3d 1066, 32 BRBS 59(CRT);

Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996); see also Director, OWCP v.

Greenwich Collieries, 512 U.S. 25 28 BRBS 43(CRT) (1994); Del Vecchio v. Bowers.

296 U.S. 280 (1935).

Contrary to employer's contention on appea1, the administrative law judge foundthat employer established rebuttal of the Section 20(a) presumption based on the opinions

of Drs. Cain, Newman and Hamer that they were unaware of any association between

inhalation injuries and pulmonary emboli. EXs F, G, I, K; see Decision and Order at 15;

Ortco, 332 F.3d 283, 37 BRBS 35(CRT). Consequently, we need not address employer's

arguments regarding rebuttal of the Section 20(a) presumption.

The administrative law judge then weighed all of the evidence and, giving greater

weight to the opinion of Dr. Laga, found that claimant met her burden of establishing that

the decedent's death was causally related tb his November 20, 2006, work exposures.

Specifically, stating that he was impressed by Dr. Laga's professionalism and detailedtestimony, the administrative law judge found Dr. Laga' s most recent opinion, which

took into consideration previously unavailable medical information, to be the most

comprehensive and informed and thus the more persuasive opinion of record. Dr. Laga, a

Board-certified forensic pathologist and toxicologist, opined that the decedent's

employment exposures resulted in damage to his pulmonary artery which, in turn,

3Contrary to employer's statement that the decedent "showed no signs of any

trauma whatsoever from an inhalation problem," see Emp. Bf. at 11, 18, the report

generated by the ambulance crew which transported the decedent to the hospital

following the work incident stated that the call was for "Respiratory DistresslDifficulty

BreathinglDyspnea," that the decedent stated that he had become "overwhelmed with the

fumes," and that the decedent complained of shortness of breath. See CX 15 at 2.

Moreover, upon hospitalization, the decedent was diagnosed with "an inhalational

injury." CX 17 at 30.

4




triggered a clotting mechanism resulting in a systemic inflammatory response (SIRS)

leadinrto a complete blockage of the decedent' pulmonary artery and thereafter to his

death.

We reject employer's assertion that the administrative law judge erred in weighing

the_evidence of record regarding the issue of causation. It is well-established that the

administrative law judge is entitled to weigh the medical evidence and draw his ovm

inferences therefrom and is not bound to accept the opinion or theory of any particular

medical examiner. See Mendoza v. Marine Pers. Co., Inc .. 46 F.3d 498, 29 BRBS

(5th

79(CRT) (5th

Cir. 1995); Todd Ship}'ards Corp. V. Donovan, 300 F.2d 741 Cir.

1962); John W. l"v1cGrath Corp. v. Hughes, 289 F .2d 403 (2d

Cir. 1961). Moreover, it is

impermissible for the Board to substitute its views for those of the administrative law

judge; thus, the administrative law judge's findings may not be disregarded merely on the

basis that other inferences might appear to be more reasonable. See Mijangos v.

Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th

Cir. 1991); Newport

News Shipbuilding & Dry Dock CO. V. Winn, 326 P.3d 427, 37 BRBS 29(CRT) (4th

Cir.2003). In his decision, the administrative law judge addressed the medical opinions

discussing the causal relationship between decedent's death and his employment, and he

rationally concluded that Dr. Laga' s testimony, which took into consideration the

decedent's working conditions on November 20, 2006, and the totality of the decedent's

medical records, is the most comprehensive of record and entitled to greatest weight. As

the administrative law judge's weighing of the evidence is rational and his finding is

supported by substantial evidence, we affirm the administrative law judge's conclusion

that the decedent's death was related to his employment with employer. Therefore, we

affirm the award of benefits pursuant to Section 9 of the Act, 33 U.S.c. §909. Casey v.

Georgetown Univ. Medical Center, 31 BRBS 147 (1997).

4Pollowing his perfonnance of the decedent's autopsy, Dr. Laga opined that the

decedent's demise was the result of a blockage in his pulmonary artery. CXs 26, 27. Dr.

Laga subsequently received and reviewed the decedent's Lafayette General Hospital

records which showed no leg clotting, genetic testing regarding blood clotting from the

decedent's mother and brother which revealed no predisposition to clotting, and the

substances that the decedent was exposed to while working for employer on November20,2006. Taking into consideration this new information, which was not available at the

time he performed the decedent's autopsy, Dr. Laga opined that the decedent's exposure

to diesel fumes affected his pulmonary artery, which triggered a SIRS response and

ultimately a blockage of the pulmonary artery which resulted in the decedent's demise.

See Tr. at 49-110.

5




Accordingly, the administrative law judge's Decision and Order is affirmed.

SO ORDERED.

f l ~ s . . . Q . . . e L - NANCY S. Dor ER, Chief

Administrative Appeals Judge

REGI A C. McGRA RY

Administrative Appeals Judge

~ ~ ~ ~ < - - - - - - - -Administrative Appeals Judge

6




CERTIFICATE OF SERVICE

11-0135 Shannon Freder ick (Widow of Blake Frederick) v. M-I Drilling Fluids Co, ACEAmerican Insurance Company (Case No. 09-LHCA-1654) (OWCP No.07-0180956)

I certify that the parties below were served this day.

AUG 25 2011

(DATE)

Frank E. LeMoine, Esq.116 South State StreetP.O. Box 368ABBEVILLE, LA 70511

--Certified

Tobin J. Eason, Esq.

Weiss and Eason, LLPPost Office Box 8597128 Century Oaks Lane (70471)MANDEVILLE, LA 70470

--Certified

Mr. David A. DuhonDistrict DirectorU . S. Department of LaborESA/OWCP/DLHWC

600 S. Maestri PlaceSuite 617NEW ORLEANS, LA 70130

~ ~ ~ - c , ; ; i ; " : ' ¥ : i , - : 1 _ - ~ _ / _ ' __Thomas O. Shepherd, Jr.Clerk of the Board

Shannon Frederick14609 Moss StreetERATH, LA 70533 -- Certified

Rae Ellen James, Esq.

Associate SolicitorU.S. Department of Labor200 Constitution Avenue, N.W.Suite N-2117, NDOLWASHINGTON, DC 20210

--Certified

Judge Clement J. KenningtonOffice of Administrative Law Judges5100 Village WalkSuite 200

COVINGTON, LA 70433




Certificate of Service Continued

Yelena Zaslavskaya, Esq.Office of Administrative Law JudgesTechworld Plaza800 K Street NWSuite 400

WASHINGTON, DC 20210




United States Court of AppealsFIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCECLERK

TEL. 504-310-7700600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

October 12, 2011

Mr. David DuhonU.S. Department of LaborESA/OWCP/DLHWCP.O. Box 30728New Orleans, LA 70190-0728

Ms. Rae Ellen JamesU.S. Department of LaborOffice of the Solicitor200 Constitution Avenue, N.W.Frances Perkins BuildingN2117

Washington, DC 20210-0001

No. 11-60694, M-I LLC, et al v. DOWCP, et alAgency No. 11-135

You are served with the following document(s) under Fed. R. App.P.15:

Petition for Review.

Please see Fifth Circuit Rule 15.4 for review of orders of theBenefits Review Board regarding petitioner's responsibility for

the filing of the statement of the issues.

See Fed. R. App. P.16 and 17 as to the composition and time forthe filing of the record.

Counsel who desire to appear in this case must electronicallyfile a "Form for Appearance of Counsel" within 14 days from thisdate. You must name each party you represent, see Fed. R. App.P.and 5 Cir. R.12. You may print or download the form from theth

Fifth Circuit's web site, www.ca5.uscourts.gov. If you fail tosend in the form, we will remove your name from our docket.Also, we cannot release official records on appeal unless anappearance has been entered.

Sincerely,LYLE W. CAYCE, Clerk

By:_________________________Sabrina B. Short, Deputy Clerk504-310-7817

Enclosure(s)

cc w/encl:Mr. Tobin J Eason

Mr Thomas Shepherd


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