M-I LLC, et al v. DOWCP, et al Petition for Appellate Review/ Underlying Order
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Transcript of 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
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
--_._--- --
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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
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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).
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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
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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
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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
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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
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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
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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
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Certificate of Service Continued
Yelena Zaslavskaya, Esq.Office of Administrative Law JudgesTechworld Plaza800 K Street NWSuite 400
WASHINGTON, DC 20210
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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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