Galle v. Ingalls Shipbuilding

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60291
Summary Calendar
MARGARET M. GALLE, Widow
of Andrew T. Galle,
Petitioner,
versus
INGALLS SHIPBUILDING, INC.;
DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; AETNA
CASUALTY & SURETY CO.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board (Mississippi Case)
(97-0858)
May 4, 2000
Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.
POLITZ, Circuit Judge:*
Margaret M. Galle, widow of Andrew T. Galle, appeals the decision of the
Benefits Review Board affirming the Administrative Law Judge’s denial of death
benefits under the Longshore and Harbor Workers’ Compensation Act.2 We affirm.
BACKGROUND
Andrew Galle was employed by Ingalls Shipbuilding Co. and sustained
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
33 U.S.C. § 901 et seq.
injuries during the course of his employment when, on November 24, 1984, he
tripped, striking his right knee and shoulder and tearing his right rotator cuff. He
was unable to return to his former job and, ultimately, was awarded permanent
partial disability benefits under the LHWCA because of an inability to raise his
right arm to the horizontal level.3 On January 15, 1993, Galle died while in the
restroom of a local department store. The cause of death was listed as acute
myocardial infarction; no autopsy was performed. Mrs. Galle filed a claim for
death benefits on behalf of herself and her disabled son, alleging that decedent’s
heart attack and resulting death was caused or aggravated by the litigation arising
from his 1984 work accident. Prior to the hearing Mrs. Galle unsuccessfully sought
recusal of the ALJ because he had presided over the disability claim.
The ALJ determined that Mrs. Galle was entitled to the Section 20(a)4
presumption of causation, but found that Ingalls rebutted this presumption. The
ALJ denied the death benefits claim based on the lack of a causal connection
between decedent’s work-related shoulder injury and the heart attack which
presumably caused his death. The Benefits Review Board affirmed and this appeal
followed.
ANALYSIS
Our review of the BRB’s decision is limited to whether it properly concluded
that the ALJ’s decision was rational, supported by substantial evidence on the
3
Galle v. Ingalls Shipbuilding, Inc., BRB No. 90-1830/A (July 27, 1992) (unpublished).
4
33 U.S.C. § 920(a).
2
record, and in accordance with applicable law.5 Substantial evidence is more than
a scintilla but less than a preponderance and is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 6
Mrs. Galle contends that decedent’s shoulder injury led to protracted
litigation over disability benefits, thereby causing decedent to suffer severe stress
and depression. In turn, she maintains that this stress and depression aggravated
decedent’s pre-existing heart disease and caused his fatal heart attack in January of
1993. She claims that because Ingalls failed to prove that the shoulder injury did
not cause or contribute to decedent’s heart attack, Ingalls failed to present sufficient
evidence to rebut the presumption of causation. This, however, is not the proper
test. To rebut the presumption, an employer is required to present “substantial
evidence that the injury was not caused by the employment.”7 Thus, Ingalls was
not obliged to present testimony effectively “ruling out” the possibility that
decedent’s heart attack was causally related to his shoulder injury.8 Ingalls
presented the medical opinions of seven doctors who concluded that there was no
causal connection between decedent’s death and his work-related injury. We find
no error in the ALJ’s conclusion that Ingalls successfully rebutted the presumption
of causation.
5
Conoco, Inc. v. Director, OWCP, 194 F.3d 684 (5th Cir. 1999).
6
Avondale Indus., Inc. v. Director, OWCP, 977 F.2d 186, 189 (5th Cir. 1992) (internal
quotation marks and citations omitted).
7
Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir. 1986).
8
Conoco, 194 F.3d at 690.
3
Once the presumption was overcome, the ALJ was obliged to look to the
record evidence as a whole to determine the issue of causation.9 In the instant case,
the ALJ determined that if the decedent’s heart attack was caused by stress or a
psychological disorder, any such infirmities arose from the litigation process rather
than the shoulder injury itself. He further concluded that such litigation amounted
to a supervening event which severed the causal connection between death and the
employment-related injury, thus relieving Ingalls of liability.10 Based on the
medical evidence and testimony offered by both parties, the ALJ found that
decedent did not suffer from Post Traumatic Stress Disorder or clinical depression,
and that neither acute nor chronic stress caused or contributed to his myocardial
infarction.
Pretermitting the question whether litigation concerning the primary injury
constituted an intervening cause, we conclude that the ALJ’s finding that
decedent’s fatal heart attack was not the result of any psychological malady or
attendant stress is rational and substantially supported by the record evidence. The
ALJ’s decision was based on the testimony of Mrs. Galle and her children, and the
testimony and reports of numerous medical doctors, including the doctors who
treated decedent’s shoulder injury. Absent an autopsy, the exact cause of death was
9
Gooden v. Director, OWCP, 135 F.3d 1066 (5th Cir. 1998); Konno v. Young Brothers,
Ltd., 28 BRBS 57 (1994).
10
Mrs. Galle’s objection to the ALJ’s consideration of intervening cause is misplaced. As
noted by the BRB’s decision, intervening cause is relevant to the issue of causation because proof that
a subsequent intervening event caused an employee’s injury relieves the employer of liability. Shell
Offshore, Inc. v. Director, OWCP, 122 F.3d 312 (5th Cir. 1997) (describing doctrine of
“supervening cause” in LHWCA context); Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046 (5th
Cir. 1983).
4
unknown and the record contains conflicting evidence as to what circumstances
caused or contributed to decedent’s heart attack.
As the trier of fact, the ALJ “is not bound to accept the opinion of any
particular medical expert”11 and is obliged to determine questions of witness
credibility and to weigh conflicting evidence.12 The ALJ attributed more weight
to the opinions of doctors who had actually examined the decedent and whose
conclusions were consistent with diagnoses contained in well-known medical
reference texts. Additionally, he fully articulated his reasons for crediting one
medical opinion over another. We find no error in either the ALJ or the BRB’s
determinations.
Mrs. Galle’s challenge to the ALJ’s use of the Merck Manual as outside the
record evidence is without merit. It is well-established that in conducting a hearing
under the LHWCA an ALJ is not bound “by common law or statutory rules of
evidence or by technical or formal rules of procedure... but may make such
investigation or inquiry or conduct such hearing in such manner as to best ascertain
the rights of the parties.”13 Further, the regulations specifically provide that
“[o]fficial notice may be taken of any material fact, not appearing in evidence in
the record, which is among the traditional matters of judicial notice.”14 The Merck
11
Atlantic Marine, Inc. v. Bruce, 661 F.2d 898, 900 (5th Ci r. Unit B 1981) (quoting
Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750, 759 (5th Cir. 1981)).
12
Atlantic Marine, Inc.; Konno, 28 BRBS 57 (1994).
13
33 U.S.C. § 923(a); Richardson v. Perales, 402 U.S. 389 (1971); Casey v. Georgetown
Univ. Med. Ctr., 31 BRBS 147 (1997).
14
29 C.F.R. § 18.45.
5
Manual is a commonly used medical reference text. Mrs. Galle was provided with
sufficient notice and an opportunity to object to those portions on which the ALJ
relied.15 We note, moreover, that the ALJ did not rely exclusively on the Merck
Manual but, rather, used it as a guide to determine which of the competing medical
opinions were more credible.
Similarly, Mrs. Galle’s claim that the ALJ should have recused himself lacks
merit. She contends that because the ALJ presided over her husband’s disability
claim, which she also suggests was wrongly adjudicated, he necessarily was biased
against her in this claim. To provide a basis for recusal Mrs. Galle must set forth
facts indicating a personal bias on the part of the ALJ.16 Adverse rulings alone are
not evidence of personal bias and cannot form the basis for recusal. 17
The decision appealed is AFFIRMED.
15
Section 18.45 states that “sufficient notice” must be given to a party when such outside
evidence is consulted which, as occurred in this case, includes “reference in the administrative law
judge’s decision.” Id.
16
33 U.S.C. § 919(d); 5 U.S.C. § 556(b).
17
United States v. Merkt, 794 F.2d 950 (5th Cir. 1986) (explaining difference between
personal and judicial bias); Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988).
6