Michael Calabrese v. Bae Systems Hawaii Shipyards ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CALABRESE, No. 18-72644
Petitioner, BRB No. 18-0155
v.
MEMORANDUM*
BAE SYSTEMS HAWAII SHIPYARDS;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted February 4, 2020
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Petitioner Michael Calabrese seeks review of a Benefits Review Board
(“Board”) order affirming an administrative law judge’s (“ALJ”) denial of his
claim for benefits under the Longshore and Harbor Workers’ Compensation Act,
33 U.S.C. §§ 901–50 (the “Act”). Calabrese alleges that he aggravated an
underlying hip condition at work, resulting in his permanent disability. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 33 U.S.C. § 921(c), and we deny the petition.
The Board “must accept the ALJ’s findings unless they are contrary to the
law, irrational, or unsupported by substantial evidence.” Rhine v. Stevedoring
Servs. of Am., 596 F.3d 1161, 1163 (9th Cir. 2010) (citation and quotation marks
omitted). We, in turn, “review the Board’s decision for errors of law and
adherence to the substantial evidence standard, and we may affirm on any basis
contained in the record.” Alcala v. Dir., Office of Workers Comp. Progs., 141 F.3d
942, 944 (9th Cir. 1998) (citation and quotation marks omitted).
1. Because Respondents concede that Calabrese established a prima facie
entitlement to benefits, they must rebut the statutory presumption of causation “by
presenting substantial evidence that is ‘specific and comprehensive enough to
sever the potential connection between the disability and the work environment.’”
Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010) (quoting
Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 959 (9th Cir. 1998)). Calabrese
argues that the Board and ALJ each erred at this step of their analysis.
Specifically, Calabrese contends that both the Board and ALJ failed to
acknowledge his hip pain as an “aggravation” of his bilateral avascular necrosis,
and thus, as a compensable injury under the Act. We disagree.
Employers are “liable for employment conditions that cause an injury or
aggravate or accelerate a pre-existing condition.” Id. at 650. Here, however,
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Respondents’ medical expert testified that Calabrese’s working conditions—e.g.,
his frequent climbing of stairs and ladders—did not cause either his avascular
necrosis or the collapse of the femoral head of his hip. The expert further opined
that, following the collapse of the femoral head, Calabrese would experience pain
regardless of his activity, whether at work or laying in a bed. Taken as a whole,
this testimony constitutes substantial evidence supporting the conclusion that
Calabrese’s employment did not cause his disability.
We are unpersuaded by Calabrese’s reliance on Kelaita v. Director, Office of
Workers’ Compensation Programs, 799 F.2d 1308 (9th Cir. 1986), which he
argues holds that an aggravation of a prior condition occurs whenever the
employee experiences pain at work. But Kelaita lacks any discussion of the
medical evidence at issue that this court might compare to the expert testimony
presented in this case. Thus, we do not read Kelaita to stand for the proposition
that instances of pain necessarily equate to an aggravation of an earlier injury or
condition. In contrast, we have distinguished between the “aggravation” of a pre-
existing condition and its “natural progression,” as Respondents’ expert testified
occurred to Calabrese. See Metro. Stevedore Co. v. Crescent Wharf & Warehouse
Co., 339 F.3d 1102, 1104–05 (9th Cir. 2003).
Calabrese’s reliance on out-of-circuit precedent does not compel a different
conclusion. The cases cited by Calabrese address either a different posture of an
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ALJ’s analysis or medical evidence distinguishable from that offered by
Respondents. See, e.g., Bath Iron Works Corp. v. Fields, 599 F.3d 47 (1st Cir.
2010); Bath Iron Works Corp. v. Preston, 380 F.3d 597 (1st Cir. 2004); Am.
Stevedoring Ltd. v. Marinelli, 248 F.3d 54 (2d Cir. 2001). Accordingly, the Board
correctly found that substantial evidence supported the ALJ’s determination that
Respondents rebutted the presumption of causation.
2. After an employer rebuts the presumption of causation, the ALJ must
determine whether the claimant established an entitlement to benefits by a
preponderance of the evidence. Albina Engine & Mach. v. Dir., Office of Workers’
Comp. Progs., 627 F.3d 1293, 1298 (9th Cir. 2010). The Board, however,
affirmed the ALJ’s findings because Calabrese offered no argument before the
Board that the ALJ erred by crediting Respondents’ medical experts over
Calabrese’s own expert. We deem the issue waived because Calabrese does not
argue that the Board’s determination was erroneous in this respect. See Hayes v.
Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).
PETITION DENIED.
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