Bollinger Shipyards, Inc. v. Director, Office of Workers' Compensation Programs, 689 F. App'x 348

Background

Kenneth Worthey, a longshore welding supervisor, was exposed for years to welding fumes, sandblasting dust, solvents, and other workplace contaminants while employed at Bollinger Shipyards.
In March 2010 Dr. Bourgeois diagnosed Worthey with COPD after pulmonary testing and advised he could not return to respirator-required work and should seek disability; Worthey nevertheless worked for Thoma-Sea from March 29 to May 18, 2010.
Worthey filed Longshore Act claims (33 U.S.C. § 901 et seq.) for his respiratory condition; an ALJ initially found Bollinger solely liable under the Act’s presumption of causation, prompting review by the Benefits Review Board (BRB).
The BRB remanded for the ALJ to consider whether Thoma‑Sea could rebut the presumption and to clarify the onset/date of disability; on remand the ALJ again assigned full liability to Bollinger, and the BRB affirmed.
Bollinger petitioned for judicial review, arguing (inter alia) that the last-responsible-employer analysis should focus on the date of disability and that Thoma‑Sea contributed to Worthey’s condition; the Fifth Circuit denied review.

Issues

Issue	Plaintiff's Argument (Worthey)	Defendant's Argument (Bollinger)	Held
Whether BRB/ALJ decision is supported by substantial evidence	ALJ credited physicians and PFTs showing disability/diagnosis on March 22, 2010 and attributed causation to Bollinger	ALJ/BRB lacked substantial evidence and improperly credited some testimony over others	Held: Substantial evidence supports ALJ/BRB credibility determinations and liability assignment to Bollinger
Proper date to determine the "last responsible employer"	Use the date physician diagnosed disability/when claimant became aware (March 22, 2010)	Urged focus on disability date but challenged ALJ’s timing; argued subsequent employer (Thoma‑Sea) was last exposure before disability	Held: ALJ found diagnosis/awareness and disability on March 22, 2010; Bollinger forfeited some timing challenges and evidence supports ALJ finding
Whether Thoma‑Sea must rebut presumption after Bollinger shown to be last responsible employer	Worthey: last‑responsible‑employer rule points to Bollinger; Thoma‑Sea did not cause/aggravate condition	Bollinger: Thoma‑Sea’s later exposure contributed; BRB should require allocation or let Thoma‑Sea rebut	Held: Although allocation arguably unnecessary once last employer identified, ALJ found Thoma‑Sea rebutted presumption; liability remains with Bollinger
Whether post‑employment evidence shows Thoma‑Sea aggravated condition	Worthey: PFTs and physicians show condition predated and matched March results; Gomes later recanted earlier statements about aggravation	Bollinger: Post‑July tests and Gomes’s earlier testimony indicate Thoma‑Sea worsened condition	Held: ALJ credited evidence implicating Bollinger and Gomes’s later testimony, rejecting Thoma‑Sea aggravation argument;

Key Cases Cited

Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163 (5th Cir.) (standard for reviewing BRB/ALJ decisions)
Avondale Indus., Inc. v. Director, OWCP, 977 F.2d 186 (5th Cir.) (review standard / substantial evidence deference)
Conoco, Inc. v. Director, OWCP, 194 F.3d 684 (5th Cir.) (elements to invoke Longshore Act presumption)
Gooden v. Director, OWCP, 135 F.3d 1066 (5th Cir.) (employer’s burden to rebut presumption)
New Orleans Stevedores v. Ibos, 317 F.3d 480 (5th Cir.) (application of last responsible employer rule)
Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.) (establishing "last responsible employer" rule)
Liberty Mut. Ins. v. Commercial Union Ins., 978 F.2d 750 (1st Cir.) (formulation focusing on date of disability)
Argonaut Ins. v. Patterson, 846 F.2d 715 (11th Cir.) (alternative formulation tying liability to awareness/missed work)
Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir.) (aggravation/compensability principles)
Atlantic Marine, Inc. v. Bruce, 661 F.2d 898 (5th Cir.) (factfinder’s prerogative to resolve credibility)