Unpublished Disposition, 908 F.2d 977 (9th Cir. 1990)

No. 89-70295.

United States Court of Appeals, Ninth Circuit.

Before TANG, NOONAN and RYMER Circuit Judges.

MEMORANDUM^** 

John Kenna brought this action claiming 33 U.S.C. §§ 901 et seq. entitled him to total compensation for the debilitating effects of a work related injury which combined with a preexisting disease causing total disability. The Benefits Review Board affirmed the administrative judge in finding that Kenna was not entitled to total compensation. We affirm.

FACTS

Petitioner John Kenna began experiencing difficulty swallowing in 1978. The esophageal problem was eventually diagnosed as scleroderma, a progressive disease that hardens the connective tissues of the body.

In 1979, Kenna injured his left elbow when a container door struck him while he was employed as a refrigeration mechanic for respondent Matson Terminals, Inc. Matson Terminals paid Kenna temporary total disability benefits for the elbow injury and planned to transfer Kenna to the position of refrigerator estimator, a less active job.

Kenna failed to return to work, however, due to the scleroderma which caused him to vomit and rendered him weak. Eventually, Kenna became permanently and totally disabled. His treating physician, Dr. Herbert R. Salomon, testified that Kenna was completely disabled due to the scleroderma alone. He further testified that the elbow accident did not cause, aggravate, or accelerate the scleroderma condition.

DISCUSSION

Employers must compensate employees for accidental injuries incurred in the course of employment. 33 U.S.C. §§ 9-2(10), 908. The employment injury need not be the sole cause of the resulting disability to be compensable. If an employment related injury aggravates, accelerates, or combines with a disease to produce the disability for which compensation is sought, the entire disability is compensable. Independent Stevedore Co. v. O'Leary, 357 F.2d 812, 815 (9th Cir. 1966) (finding entire disability compensable because work related injury accelerated the employee's total disability). There is a presumption that a claimant's condition arose from his employment if it is shown that the claimant sustained physical harm and the working conditions existed or a work accident occurred which could have caused the harm. 33 U.S.C. § 920(a). This presumption, however, is overcome by specific evidence severing the potential connection between the disability and the work environment. Parsons Corp. v. Director, Office of Workers' Comp. Programs, 619 F.2d 38, 41 (9th Cir. 1980).

Petitioner takes the position that his elbow injury forced him to leave the labor market at an earlier time than he would have otherwise left despite the debilitating effects of the scleroderma. Petitioner does not argue that the elbow injury exacerbated the scleroderma. He argues that because the elbow injury rendered him at least partially disabled, the preexisting medical condition must have at some point combined with that partial disability to make him totally disabled.

Petitioner's work injury must in some way aggravate or accelerate the effects of his disease. The evidence does not indicate a connection between Kenna' affliction and the work environment. See Parsons, 619 F.2d at 41. Kenna's own doctor testified the scleroderma alone rendered him permanently and totally disabled. He testified that the container door which fell on the petitioner, injuring his elbow, in no way accelerated his condition.

The decision of the administrative judge, affirmed by the Benefits Review Board, is rational and supported by substantial evidence, see O'Keefe v. Smith Assoc., 380 U.S. 359, 362 (1965), and thus is AFFIRMED.