Dillingham Ship Repair v. United States Department of Labor

concurring in the result:

Whether Dillingham’s argument that the Benefit Review Board’s decision in McAllister v. Lockheed Shipbuilding, 41 B.R.B.S. 28, 2007 WL 1289932 (Dep’t of Labor Ben. Rev. Bd.2007) (per curiam), impermissibly imposes the burden of proof on each employer simultaneously contains two analytically distinct points or those points are simply different sides of the same coin, I see no reason to address any aspect of the McAllister rule. Here, the administrative law judge (ALJ) clearly imposed the burden of proof sequentially, beginning with the last-in-time employer and moving to the preceding employer only after concluding the later-in-time employer had carried its burden. The three later-in-time employers carried their burden. Dillingham did not. In short, the ALJ did precisely what Dillingham maintains the last employer rule requires: he ensured each later-in-time employer had carried its burden of proving it did not expose claimant to sufficient harmful stimuli to cause the injury before imposing the burden of proof on Dillingham. I would therefore affirm because any legal error in the Board’s formulation of the rule was immaterial and would decline to opine…

MEMORANDUM *

Petitioner Dillingham Ship Repair petitions for review of a decision by the Benefits Review Board (“Board”), under 33 U.S.C. § 921 (c) of the Longshore and Harbor Workers’ Compensation Act (“Act”), 33 U.S.C. §§ 901-950 . We review the Board’s decision for “errors of law and for adherence to the statutory standard governing the Board’s review of the adminis *587 trative law judge’s [ALJ’s] factual determinations.” Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir.1983) (internal quotation marks omitted). The Board “must accept the ALJ’s findings unless they are contrary to the law, irrational, or unsupported by substantial evidence.” Id. Finding no error, we deny the petition for review.

This case concerns which employer is liable for causing an asbestos-related disease and the ultimate death of the claimant’s husband. This circuit has adopted the “last employer rule,” whereby “the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, [is] liable for the full…