On Petition for Review of an Order of the Benefits Review Board BRB No. 08-0403
The opinion of the court was delivered by: Tashima, Circuit Judge:
Argued and Submitted October 7, 2010-Portland, Oregon
Before: A. Wallace Tashima, Richard A. Paez, and Richard R. Clifton, Circuit Judges.
Albina Engine & Machine ("Albina") petitions for review of a decision of the Benefits Review Board (the "Board") upholding the Administrative Law Judge's ("ALJ") ruling that Albina is liable for payment of death benefits to Karen McAllister ("Claimant") under the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. § 901 et seq. Claimant is the widow of James McAllister ("Decedent"), who died of mesothelioma as a result of exposure to asbestos during his work as a carpenter for three shipyard employers, one of which was Albina. Albina argues that the Board misconstrued existing law on the burden of proof in LHWCA proceedings against multiple employers, misap-plied the "last employer" rule, and upheld the ALJ's decision that was not supported by substantial evidence. Albina further contends that liability for payment of benefits should have been assigned instead to Lockheed Shipbuilding ("Lockheed"), another of Decedent's former employers. We have jurisdiction under 33 U.S.C. § 921(c) and grant the petition for review, concluding that Lockheed is liable for the payment of benefits.
In 1956, Decedent worked as a shipyard carpenter in the vicinity of Portland, Oregon, first for Willamette Iron & Steeln Co. ("WISCO") and then for Albina. In 1957, Decedent moved to Seattle and worked in a similar capacity at a predecessor company to Lockheed. Decedent ceased maritime employment in 1960. He died in 2002 of mesothelioma. Claimant, his widow, filed a claim for death benefits pursuant to § 9 of the LHWCA, 33 U.S.C. § 909, against Lockheed, Albina, and WISCO.
All parties stipulated that Decedent's injuries occurred while he was employed at a maritime situs, that his death was due to mesothelioma caused by exposure to asbestos, and that the examining pathologist would, if called to testify, state that any level of exposure to asbestos can cause mesothelioma. The principal remaining issue to be decided by the ALJ at trial was the question of which employer - Lockheed, Albina or WISCO - should be liable for the payment of benefits. A trial was held before ALJ Paul Mapes ("ALJ Mapes") in February 2004, and in July 2004, ALJ Mapes issued a decision finding Lockheed liable. The Board reversed and remanded in an opinion issued on August 19, 2005 ("McAllister I"). On remand, ALJ Mapes again found Lockheed liable. The Board again reversed and remanded in an opinion issued on April 26, 2007 ("McAllister II"). On the second remand, the case was heard by ALJ Steven B. Berlin ("ALJ Berlin"), who found Albina liable for the payment of benefits. The Board affirmed in a decision issued on December 30, 2008 ("McAllister III").
The three opinions of the Board contain the following statements of the law with respect to how liability should be assigned in an LHWCA case involving multiple employers:
* The so-called "Section 20(a) presumption" set forth in 33 U.S.C. § 920(a) is invoked only "on behalf of a claimant," and not "against a particular employer." McAllister I at 4.
* Once the § 20(a) presumption is invoked, the ALJ must then "weigh relevant evidence" with respect to all potentially responsible employers to determine which is liable for payment of benefits. McAllister II at 7.
* The "last employer rule," adopted by this court in Cordero v. Triple A Mach. Shop, 580 F.2d 1331 (9th Cir. 1978), which assigns liability for payment of benefits to the injured employee's last covered employer, does not mean that the last employer bears any special burden of proof. Instead, once a claim has been established as compensable, each potentially liable employer bears the same burden of proving, by a preponderance of the evidence, either that the claimant was not exposed to injurious stimuli at that employer in sufficient quantities to cause his disease, or that the claimant was exposed to injurious ...