Mabel Sprague (widow of Frederick Sprague), Claimant-petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondentandbath Iron Works Corporation, Respondentandcommercial Union Insurance Company, Respondent, 688 F.2d 862 (1st Cir. 1982)

Before CAMPBELL and BREYER, Circuit Judges, PETTINE, Chief District Judge.^* 

PETTINE, Chief District Judge.

Mabel Sprague, widow of Frederick Sprague, appeals the 2-1 decision of the Benefits Review Board (hereinafter "Board") affirming an administrative law judge's (hereinafter "ALJ") denial of disability and death benefits under the Longshoremen's and Harborworkers' Compensation Act, 33 U.S.C. §§ 908,¹  909²  (hereinafter the "Act"). The Board sustained the ALJ's finding that the decedent's disability, which was not the cause of his death, was not work-related, and thus that the decedent's widow was not entitled to benefits under the Act. See id. § 902(2), (10).³  This Court has jurisdiction over the claimant's appeal pursuant to 33 U.S.C. § 921(c). For the reasons that follow, this Court affirms the Board's decision.

Facts

Frederick Sprague worked for Bath Iron Works Corp. (hereinafter "BIW") in its machine shop from sometime in the early 1970's until August 9, 1975.⁴  On July 17, 1975 Mr. Sprague accidently struck and bruised his left leg while operating a rigging machine at BIW. At the hearing before the ALJ, Mrs. Sprague testified that she observed her husband's leg on the day following this injury. She stated that she saw numerous cuts and bruises on the leg, none of which were deep. However, she did recall seeing "raw flesh."

Approximately six days after his injury, Mr. Sprague sought treatment from BIW's medical director, Dr. Dominici. Dr. Dominici is a general surgeon specializing in vascular work. Dr. Dominici testified that, upon examining Sprague's left leg, he observed no open wounds or cuts. Furthermore, x-rays taken of Sprague's entire left leg on August 14, 1975 did not reveal the onset of osteomyelitis, a bacterial bone infection which caused Sprague's disability in this case.

On August 18, 1975 Mr. Sprague was examined in a hospital by Dr. Evans, Sprague's family doctor and an internist. Dr. Evans discovered that Sprague's great toe on his right foot was ulcerated. Dr. Evans testified at his deposition that Sprague's diabetic condition was responsible for the ulcer on the right toe. A culture taken from this ulcer disclosed the presence of staphylococcus aureus (hereinafter "staph"), a type of bacteria. However, Evans' medical notes do not indicate that Sprague had open wounds or cuts on his left leg at this time.

Dr. Evans referred Sprague to Dr. Giustra, an orthopedic surgeon. On October 10, 1975, Dr. Giustra performed surgery on Sprague's right toe. Giustra diagnosed the toe condition as a soft-tissue infection not involving the bone. However, x-rays taken by Giustra in October revealed extensive osteomyelitis in the fibula of Sprague's left leg. On October 14, 1975 Giustra amputated Sprague's left leg below the knee because of the osteomyelitis. Some months later, Mr. Sprague died from an accidental gunshot wound.

The critical factual issue in this case is whether the osteomyelitis of Sprague's left leg resulted from work-related injuries to that leg, or from a non-work-related infection in the ulcerated toe on his right leg.⁵  Osteomyelitis may occur in two ways: (1) through direct "innoculation" of a bone with bacteria that has entered the skin through an open wound located near the bone; and (2) through transmission of bacteria through the blood stream from one part of the body to a bone in another part of the body. The claimant contends that Sprague's osteomyelitis was caused by entry of staph bacteria through wounds on his left leg received at BIW in July 1975. BIW, however, contends that staph entered Sprague's body through the non-work-related ulcer on his right toe and traveled through his blood stream to his left leg.

The ALJ found that Sprague's osteomyelitis was blood-borne and not due to work-related injuries to his left leg. The Board affirmed 2-1, concluding that the ALJ's findings on causation were supported by substantial evidence.⁶ 

Discussion

33 U.S.C. § 920(a) provides that "it shall be presumed, in the absence of substantial evidence to the contrary ... (t)hat the claim comes within the provisions of this (Act)...." The precise coverage of this presumption is debatable. United States Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers' Comp. Programs, --- U.S. ----, 102 S. Ct. 1312, 1316, 71 L. Ed. 2d 495 (1982). However, the presumption clearly applies to the causal "nexus between an employee's malady and his employment activities." Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 269 (D.C. Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1749, 72 L. Ed. 2d 160 (U.S. Mar. 29, 1982) (quoting Swinton v. Kelley, 554 F.2d 1075, 1082 (D.C. Cir.), cert. denied, 429 U.S. 820, 97 S. Ct. 67, 50 L. Ed. 2d 81 (1976)). Thus, until the employer introduces substantial evidence to the contrary, § 920(a) presumes that an employee's disability is work-related.

However, once an employer bears his burden of going forward with substantial evidence of non-work-relatedness, the presumption "falls" out of the case. Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n. 6 (1st Cir. 1969). Accord Volpe v. Northeast Marine Terminals, 671 F.2d 697, 700 (2d Cir. 1982); Hensley v. Washington Metro. Area Transit Auth., 655 F.2d at 267; Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d 170, 173 (3d Cir. 1981). See Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S. Ct. 190, 193, 80 L. Ed. 229 (1935) (discussing presumption in 33 U.S.C. § 920(d)). The presumption does not constitute affirmative evidence. Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d at 173. See Del Vecchio v. Bowers, 296 U.S. at 286, 56 S. Ct. at 193.

Thus, resolution of Mrs. Sprague's claim for benefits under the Act requires a two-part analysis. Walker v. Universal Terminal Stevedoring Corp., 645 F.2d at 173. First, the Court must determine whether BIW came forward with substantial evidence to rebut the presumption of compensability under § 920(a). Second, if the presumption was successfully rebutted, the Court must then ask whether, on the record as a whole and without reference to the presumption, there is substantial evidence to support the ALJ's fact findings. Graziano v. General Dynamics Corp., 663 F.2d 340, 341 (1st Cir. 1981); Bath Iron Works Corp. v. White, 584 F.2d 569, 573 (1st Cir. 1978); Travelers Insurance Co. v. Belair, 412 F.2d at 301 n. 6. In other words, the Court must determine whether or not "the Board adhered to the substantial evidence standard in its review of (the) factual findings (made) by the ALJ." Graziano v. General Dynamics Corp., 663 F.2d at 341.

"Substantial evidence," for purposes of determining both whether the employer has rebutted the presumption of compensability and whether the ALJ's findings are supported on the record as a whole, is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parsons Corp. of California v. Director, Office of Workers' Comp. Programs, 619 F.2d 38, 41 (9th Cir. 1980) (evidence needed to rebut presumption); Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006 (5th Cir. 1978) (evidence needed to support ALJ's findings). See NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299-300, 59 S. Ct. 501, 504, 505, 83 L. Ed. 660 (1939) (action under national labor laws); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir. 1981) (social security disability benefits). Thus, "substantial evidence" means more than a scintilla of evidence, but less than a preponderance. Garvey Grain Co. v. Director, Office of Workers' Comp. Programs, 639 F.2d 366, 370 (7th Cir. 1981) (per curiam) ; Diamond M. Drilling Co. v. Marshall, 577 F.2d at 1006. In reviewing for substantial evidence it is immaterial that the facts permit diverse inferences as long as those drawn by the ALJ are supported by evidence. Bath Iron Works Corp. v. White, 584 F.2d at 573. Similarly, it is irrelevant that the appellate court might reach a different conclusion than did the ALJ if it were reviewing the record de novo. Garvey Grain Co. v. Director, Office of Workers' Comp. Programs, 639 F.2d at 370.

The claimant in this case contends that the ALJ misapplied the presumption of compensability in 33 U.S.C. § 920(a). She argues that BIW failed sufficiently to rebut the presumption as to the work-relatedness of Sprague's disability. This Court must disagree. Not only did BIW introduce medical evidence from Drs. Dominici and Evans substantial enough to rebut the presumption of compensability, but there is substantial evidence in the record as a whole to support the ALJ's findings on causation. Thus, the Court will proceed directly to an examination of the entire record under the substantial evidence standard.⁷ 

Dr. Giustra stated at his deposition that blood-borne osteomyelitis is rare in adults, and that the most common cause of adult osteomyelitis is direct innoculation. He testified that his medical records contained no notation of any open wounds on Sprague's left leg. However, he stated that any break in the skin on Sprague's left leg would have been sufficient for entry of osteomyelitis-causing staph bacteria, which are prevalent in the environment. In his opinion, it is unnecessary that a person receive a wound that penetrates to the bone in order to contract osteomyelitis by "direct innoculation." Finally, Dr. Giustra stated that Sprague's osteomyelitis was likely not blood-borne because of the extent of the infection that he had observed in Sprague's left leg. The osteomyelitis had spread throughout almost the entire fibula and had affected adjacent muscle.⁸ 

Dr. Dominici agreed with Dr. Giustra that a wound penetrating to the bone is unnecessary for non-blood-borne osteomyelitis. However, he stated that an open wound accompanied by infection or inflammation was at least necessary for osteomyelitis to be caused by direct trauma to Sprague's left leg. Because he had no evidence of such infection or inflammation in the left leg, he felt that Sprague's osteomyelitis did not occur because of the July 1975 injuries to his left leg.

Furthermore, he stated that the osteomyelitis was probably due to staph carried through the blood from Sprague's right great toe. He reasoned that Sprague's osteomyelitis was "acute" (because it had not yet appeared in August x-rays of the leg),⁹  and that most acute cases are blood-borne. Like Dr. Giustra, Dr. Dominici stated that blood-borne osteomyelitis was rare in adults, but Dominici believed that Sprague was one of the rare cases. Finally, Dr. Dominici based his conclusion about the cause of Sprague's osteomyelitis on the fact that the same type of bacteria (staph) that caused the osteomyelitis was detected in a culture drawn from Sprague's ulcerated right toe prior to detection of osteomyelitis in the left leg.

Dr. Evans concurred with Dr. Dominici that Sprague's osteomyelitis was caused by entry of staph through the ulcer in the right toe, which he characterized as "deeply open." However, unlike both Dr. Dominici and Dr. Giustra, Dr. Evans believed that direct trauma to Sprague's left toe could have caused osteomyelitis only if it had resulted in an open wound that penetrated to the bones in Sprague's left leg. He stated at his deposition that a mere "superficial infection," "abrasion," or "breakage in the skin" would be insufficient to cause osteomyelitis. He reasoned that, "(t)he bacteria to get into an osteomyelitis occur between the ... growing points of the bone at the epiphysis. And, that has to get in from the bloodstream...." Finally, unlike Drs. Giustra and Dominici, Dr. Evans believed blood-borne osteomyelitis to be common in adults.

Based on the foregoing testimony, the ALJ found that transmission through the blood of bacteria from Sprague's ulcerous right toe caused the osteomyelitis in his left leg. The ALJ noted that the same type of bacteria that caused Sprague's osteomyelitis had been detected in his right great toe. The ALJ also relied generally on the testimony of Drs. Dominici and Evans, stating that "(i)t is significant to note that two of the three treating physicians testified that within reasonable medical probability the staph was carried hematogenously from the right great toe to the left fibula."

The ALJ also expressly rejected the claimant's theory of causation. He noted that Mrs. Sprague had testified that the leg wounds that her husband received in July 1975 were not deep. The ALJ found, however, that trauma to Sprague's left leg could have caused his osteomyelitis only if Sprague received wounds penetrating to the bones in his leg. The ALJ thus credited Dr. Evans' testimony as to non-blood-borne osteomyelitis.

After reviewing the record, this Court concludes that the Board did not err in holding that the ALJ's findings as to causation were supported by substantial evidence. The testimony of Drs. Evans and Dominici certainly provides substantial evidence from which a reasonable man might conclude that the staph detected in Sprague's ulcerous right great toe caused his osteomyelitis. Furthermore, it was not unreasonable for the ALJ to have credited Evans' theory as to how direct trauma can cause osteomyelitis even though Drs. Giustra and Dominici both stated that wounds penetrating to the bone are unnecessary. On appeal, the claimant has neither successfully impeached Dr. Evans' credentials, nor indicated why his testimony is inherently implausible.¹⁰  Given the fact that Drs. Dominici and Giustra disagreed as to the precise type of trauma necessary to cause non-blood-borne osteomyelitis, this Court cannot say that crediting Evans' testimony was error. See Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750, 759-60 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1037, 71 L. Ed. 2d 319 (1982) (ALJ not required to accept opinion of any particular medical expert, but entitled to weigh evidence and draw inferences most reasonable in light of the entire record and common sense). The Board's finding of substantial evidence to support the ALJ's decision¹¹  is thus affirmed.¹² 

The claimant contends that the Board erroneously denied her access to a letter written by Dr. Dominici to BIW's attorney. This Court's in camera review of this letter revealed that it is a direct response to a prior letter written by BIW's attorney requesting Dominici's opinion as to the cause of Sprague's osteomyelitis. The claimant seeks this letter because it was prepared by the only medical expert who observed Sprague's left leg within six days of his July 1975 injuries, and because she therefore believes that the letter contains factual information about Sprague's medical condition in July and August of 1975 that is vital to establishing causation in this case.¹³  Furthermore, she contends that the letter may contain statements contradictory to Dominici's testimony before the ALJ, thus providing a basis for impeaching that testimony.¹⁴ 

In a 2-1 decision, the Board held that Dominici's letter was protected work-product under Fed. R. Civ. P. 26(b) (3). The Board concluded that it was undiscoverable because the claimant had not demonstrated "substantial need" for the document, which 26(b) (3) requires. The Board reasoned that "substantially all" of the factual information contained in the letter came out in Dr. Dominici's testimony before the ALJ.

One member of the Board, however, dissented. He contended that Dominici's letter to BIW's attorney was not work-product at all. Furthermore, the dissent stated that, even if the letter were protected work-product, the work-product immunity had been waived because, as the majority noted, substantially all of the factual information therein had come out in Dominici's testimony.¹⁵  Finally, he observed that certain statements in the letter were inconsistent with Dominici's testimony. The letter could thus be used to impeach Dominici, and the ALJ's refusal to permit discovery was therefore not harmless error.

Fed. R. Civ. P. 26(b) (3)¹⁶  confers qualified immunity from discovery on "documents and tangible things otherwise discoverable under (Fed. R. Civ. P. 26(b) (1)) ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, ... or agent)...." A party may discover such documentary work-product "only upon a showing that (he) ... has substantial need of the materials ... and that he is unable without undue hardship to obtain (their) ... substantial equivalent ... by other means." Id.

Dr. Dominici's letter to BIW's attorney setting forth Dominici's opinion as to the cause of Sprague's osteomyelitis is unquestionably work-product protected under Rule 26(b) (3). The letter was in direct response to various medical questions posed by BIW's attorney in an earlier letter dated March 25, 1976, which clearly reveals that the attorney was preparing for an imminent lawsuit. Dr. Dominici's letter was thus prepared "in anticipation of litigation." Fed. R. Civ. P. 26(b) (3).

Furthermore, the fact that a doctor and not an attorney prepared this letter is irrelevant for purposes of Rule 26(b) (3) work-product protection. Rule 26(b) (3) applies to materials prepared for a party's representative, such as an attorney. Dominici prepared his letter for BIW's counsel, thus bringing the letter within the Rule. As the Supreme Court noted in United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1976), the work-product doctrine must "necessarily" apply to materials prepared on an attorney's behalf, id. at 239 n. 13, 95 S. Ct. at 2170 n. 13, because an attorney must often rely on the assistance of others "in the compilation of materials in preparation for trial." Id. at 238, 95 S. Ct. at 2170. "This view," the Court stated, "is reflected in the Federal Rules of Civil Procedure, see Rule 26(b) (3)...." Id. at 239 n. 13, 95 S. Ct. at 2170 n. 13. Thus, it is beyond doubt that Dominici's letter is protected from discovery under Fed. R. Civ. P. 26(b) (3) unless the claimant can show a substantial need for the letter and an inability to obtain its substantial equivalent without undue hardship.

After reviewing Dominici's letter in camera, the Court finds that the claimant cannot make the showing required for discovery under Rule 26(b) (3). The claimant seeks the letter because she believes it contains vital information about causation in this case and about Sprague's medical condition in July and August of 1975, and because it allegedly could be used effectively to impeach Dominici's testimony. However, the letter contains no significant information about Sprague's medical condition or about the cause of his osteomyelitis that did not also come out in Dominici's testimony before the ALJ. Therefore, the claimant has already obtained the "substantial equivalent" of this information, and it is therefore not discoverable under Fed. R. Civ. P. 26(b) (3). Furthermore, the Court is unable to find any statement made in the letter at issue that could be used effectively to impeach Dominici's testimony. No reasonable trier of fact would alter its opinion as to the credibility of Dominici's testimony based on the statements made in this letter. Therefore, the claimant has failed to demonstrate a "substantial need" for the letter for purposes of impeachment. In sum, this Court affirms the decision of the Board¹⁷  denying the claimant access to Dr. Dominici's letter.¹⁸ 

The decision of the Board sustaining the ALJ's denial of benefits to the claimant under the Longshoremen's and Harborworkers' Compensation Act is hereby affirmed.