Filed: September 25, 2000
                      FOR THE FOURTH CIRCUIT
                           No. 99-1755
Norfolk Shipbuilding & Drydock Corporation,

Theodore Faulk, et al.,

                            O R D E R
The court amends its opinion filed July 11, 2000, as follows:

On the cover sheet, section 1 -- the status is changed from UNPUBLISHED to PUBLISHED.

On the cover sheet, section 6 -- the status line is changed to read "Affirmed by published per curiam opinion."

On page 2, section 2 -- the reference to use of unpublished opinions as precedent is deleted.

On page 15, third full paragraph, lines 3-4 -- the phrase at the end of the line is corrected to read "on behalf of Faulk ...."

                                     For the Court - By Direction
                                      /s/ Patricia S. Connor









No. 99-1755







On Petition for Review of an Order of the

Benefits Review Board.


Argued: April 6, 2000

Decided: July 11, 2000

Before WILKINS and MICHAEL, Circuit Judges, and Patrick M.

DUFFY, United States District Judge for the District of South

Carolina, sitting by designation.


Affirmed by published per curiam opinion.



ARGUED: Gerard E.W. Voyer, TAYLOR & WALKER, Norfolk,

Virginia, for Petitioner. Benjamin McMullan Mason, MASON,

COWARDIN & MASON, Newport News, Virginia, for Respondent

Newport News Shipbuilding; Kristin Marie Dadey, Office of the


ton, D.C., for Respondent Director; Gary Richard West, PATTEN,


Virginia, for Respondent Faulk. ON BRIEF: Donna White Kearney,

TAYLOR & WALKER, Norfolk, Virginia, for Petitioner. Lexine D.

Walker, MASON, COWARDIN & MASON, Newport News, Vir-

ginia, for Respondent Newport News Shipbuilding. Henry L. Solano,

Solicitor of Labor, Carol A. De Deo, Associate Solicitor for

Employee Benefits, Samuel J. Oshinsky, Counsel for Longshore,

Office of the Solicitor, UNITED STATES DEPARTMENT OF

LABOR, Washington, D.C., for Respondent Director.





Norfolk Shipbuilding & DryDock Corporation ("Norshipco") peti-

tions for review of the order of the Benefits Review Board of the

Department of Labor ("Board") affirming the administrative law

judge's ("ALJ") order finding Norshipco the responsible employer

and awarding permanent total disability benefits to Theodore R. Faulk

for asbestos-related peritoneal mesothelioma under the Longshore and

Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.A.

§§ 901-950 (West 1986 & Supp. 1999). We have jurisdiction under

section 21(c) of the LHWCA to review final orders of the Board for

injuries occurring in states within the circuit. 33 U.S.C. § 921(c).


We review Board decisions for errors of law and for adherence to

the statutory standard governing the ALJ's factual findings. See New-


port News Shipbuilding and Dry Dock Co. v. Director, OWCP (Har-

cum), 131 F.3d 1079, 1081 (4th Cir. 1997); 33 U.S.C. § 921 (b)(3).

Section 21(b)(3) of the LHWCA directs that "[t]he findings of fact in

the decision under review by the Board shall be conclusive if sup-

ported by substantial evidence in the record considered as a whole."

33 U.S.C. § 921(b)(3). To determine whether the Board complied

with the standard, the Court of Appeals conducts an independent

review of the administrative record. Bumble Bee Seafoods v. Director,

OWCP (Hanson), 629 F.2d 1327, 1329 (9th Cir. 1980). Like the

Board, the Court of Appeals will uphold the factual findings of the

ALJ so long as they are supported by substantial evidence, and it will

not disregard these findings merely "on the basis that other inferences

might have been more reasonable." Director, OWCP v. Newport

News Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140

(4th Cir. 1998). Review of factual findings is limited, and

"[d]eference must be given the fact-finder's inferences and credibility

assessments." Id. (quoting Newport News Shipbuilding and Dry Dock

Co. v. Tann, 841 F.2d 540, 543 (4th Cir.1988)). Nevertheless, to be

sufficient, the evidence must be "more than a scintilla but less than

a preponderance," Elliott v. Administrator, Animal & Plant Health

Inspection Serv., 990 F.2d 140, 144 (4th Cir. 1993), and "such rele-

vant evidence as a reasonable mind might accept as adequate to sup-

port a conclusion." Carmines, 138 F.3d at 140 (quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971)). The ALJ may not "merely

credulously accept the assertions of the parties or their representa-

tives, but must examine the logic of their conclusions and evaluate the

evidence upon which their conclusions are based." Carmines, 138

F.3d at 140.


Theodore R. Faulk was employed by Norshipco as a shipfitter from

November 29, 1978 until November 27, 1996. Prior to his employ-

ment at Norshipco, Faulk spent almost six years constructing and

repairing ships at Newport News Shipbuilding and Dry Dock Com-

pany ("NNS"). On November 27, 1996, Faulk was diagnosed with

peritoneal mesothelioma, caused, at least in part, by his exposure to

airborne asbestos dust and fibers. Faulk has a permanent and total dis-

ability which is deemed to have begun on November 27, 1996 and is

continuing as a result of the mesothelioma.


Faulk testified that he was certain that he was exposed to asbestos

while employed at NNS as a shipfitter. He cut asbestos cloth and used

it to cover himself and other surfaces as protection from welding fire.

Cutting and moving the cloth created visible dust and particles. He

also worked around insulators and welders who used asbestos materi-

als. Faulk rarely wore a respirator while at NNS. NNS does not deny

Faulk's exposure and did not present any contradictory evidence.

With respect to his employment at Norshipco, Faulk testified that

he could not state with certainty that he was exposed to asbestos

except for the time he worked aboard the U.S.S. Flint when Nor-

shipco informed him of the presence of asbestos. The incident on the

U.S.S. Flint occurred in October or November of 1996 when workers

ruptured the insulation around a pipe covering when they hit it with

the sharp edge of a bulkhead. Faulk had worked in and around the

compartment for days, but was not present during the rupture.

Regarding the incident, Faulk recalled, "I came in right after that had

happened, and they told me what had happened, so I got my tools, and

I got out of the room until they came in to test it to see what was

wrong, see what kind of material it was." J.A. at 728. He estimated

that it took him five minutes to pick up his tools. Later that day, Faulk

returned to put his tools back in the compartment where he was stor-

ing them. After the rupture, Norshipco had someone come and test the

material. The night crew fixed the torn area but did not remove all the

asbestos from the pipe. Faulk described the compartment after the

rupture as follows: "It wasn't real dusty, or nothing in there. It was

just normal like it always been. You couldn't tell nothing had hap-

pened." J.A. at 720.

Faulk testified that he had used a respirator when he was in the

compartment on the day of the rupture but that he had not "con-

stantly" used a respirator while working aboard the ship. Although he

was not in the compartment during the rupture, the record is unclear

about where he was or how far away he was from the compartment,

or if it was completely sealed at the time of the rupture. Faulk was

not wearing a respirator when the pipe ruptured.

Faulk also stated that he was "sure" that he had been on many ships

with asbestos at Norshipco. He was able to point specifically to the

U.S.S. Briscoe, the U.S.S. Coronado, the U.S.S. Detroit, and the


U.S.S. Josephus Daniels as ships he worked on while at Norshipco,

although he claimed no actual knowledge of asbestos on those ships.

His job as a shipfitter encompassed removing and replacing bent

steel, removing and installing foundations, and removing flooring to

reach the steel deck for renovation. Although he could not remember

the specific jobs he performed or the length of time he spent on each

ship, he recalled working in the engine room of two ships which

housed boilers generally insulated with asbestos materials. However,

Faulk could not recall whether the insulation was being torn off while

he was working on each respective ship.

In addition to his work, Faulk was present in ship compartments

when other tradesmen such as insulators, tore off old insulation before

they covered pipes or put insulation on walls. He was frequently

around insulators as they removed insulation on Navy ships to com-

plete repair work. Faulk also removed tile flooring with a chipping

hammer. This type of work generates a great deal of dust and trash

as the concrete under the tile is chipped away. It was not until

November of 1996 that Faulk became aware that some of the flooring

material contained asbestos. Because repair work generates considera-

bly more dust and smoke than new construction work, he wore a res-

pirator during his employment at Norshipco as early as 1978. Faulk

testified that he took it upon himself to wear a respirator because Nor-

shipco "did not have a good ventilation system on these jobs. . . they

[were] very slack in . . . ventilating the area, getting the smoke out."

J.A. at 49. While he wore a respirator a majority of the time, he did

not "walk around eight hours a day with a respirator on." J.A. at 72.

In his deposition, Faulk stated that he did not always wear a respirator

when the tile floors were being torn up and the insulation was torn

off. J.A. at 724. Faulk described the respirators as rubber with double

filters on each side that fit over the nose and under the mouth. He

would use it for a few days and then exchange it for a clean one. He

sometimes also used paper-type disposable respirators depending on

the type of work.

Faulk recalled times when Norshipco closed off an area to its

employees while asbestos was being removed, but he was unsure

whether they took these measures all the time or when he first arrived

in 1978. He could not state with a certainty that the dust from the


Norshipco jobs contained asbestos, because he "didn't have anything

tested." J.A. at 65.

NNS presented the testimony of Daniel Harrington, a certified

industrial hygienist at NNS, for his conclusion that Faulk was

exposed to asbestos on two naval ships at Norshipco. While Harring-

ton was not directly responsible for NNS's asbestos program, he testi-

fied that he had "extensive experience" with asbestos. J.A. at 87.

Harrington explained that asbestos was commonly used in thermal

insulation systems, cloth, gaskets, floor tiles, underlayment, adhesive

glue or cement, friction materials, and a variety of tapes. He testified

that prior to 1971, Navy ships used asbestos "almost exclusively" on

thermal insulation systems. J.A. 90, 100-01. While he had no access

to specific ship specifications, he based this statement on the refer-

ence book The Naval Ships Technical Manual, a Department of

Defense document. Harrington also relied upon Jayne's Fighting

Ships to determine that two of the ships on which Faulk worked, the

Josephus Daniels and the Coronado, had been built prior to 1971.

From that, Harrington concluded that Faulk was exposed to asbestos

at Norshipco. Harrington admitted that he did not research the ships'

histories to learn of every overhaul or repair and conceded that it

might be possible that the ships were repaired, removing the asbestos

prior to their arrival at Norshipco. However, he did state that he had

not seen any projects where NNS was asked to remove all the asbes-

tos from a ship; instead, the Navy's standard procedure was to remove

what was necessary to complete a job without disturbing the rest.

Harrington also acknowledged that NNS used asbestos extensively

prior to his arrival in 1979 and that it was possible Faulk was exposed

to asbestos at NNS. Since Harrington's employment, the bulk of

NNS's asbestos work has involved removal and replacement with

non-asbestos materials. NNS has used asbestos-free material in new

construction and repair at least since 1979. The Naval Ships Technical

Manual also noted that since 1974 most thermal insulation had been

repaired with asbestos-free materials. Harrington further testified that

there is no risk of exposure if the asbestos-containing materials are

not disturbed and are in a well-maintained condition.

Norshipco presented the medical expert testimony of Dr. Paul Fair-

man, a pulmonary disease specialist at the Medical College of Vir-


ginia. He explained that peritoneal mesothelioma generally develops

35-40 years after the initial exposure and that it is extremely rare for

it to develop in less than 20 years. Dr. Fairman reviewed Faulk's

medical records, deposition testimony, and interrogatory answers, and

opined that any exposure to asbestos aboard the U.S.S. Flint did not

cause Faulk's mesothelioma, but that it was caused by the inhalation

of asbestos at NNS.

After the hearing, the ALJ made extensive findings of fact. In his

decision, the ALJ found "that the weight of the credible evidence

establishes that Claimant was exposed to asbestos while working at

Norshipco." J.A. at 764. In reaching his decision, he found Faulk to

be "a very credible witness" and detailed the facts supporting expo-

sure. Id. For instance, the ALJ noted that Faulk stored his tools in the

U.S.S. Flint compartment where the insulation rupture occurred; that

he worked in and around the compartment for days; that he entered

the compartment twice after the rupture; that there was no evidence

that the compartment was sealed off before or after the rupture; that

he wore a respirator while in the compartment but had not continu-

ously worn one while working around the compartment before, dur-

ing, and after the rupture; that Faulk did not wear his respirator for

the entire eight hour shift; that Dr. Steinberg noted that asbestos expo-

sure can occur when protective clothing is not worn; and that Faulk

did not wear protective clothing during his years of employment.

Moreover, he found that Norshipco offered no evidence to contradict

Faulk's assertions that he was exposed to asbestos while aboard the

U.S.S. Flint. He also noted that Harrington's credible testimony

helped "to generally buttress Claimant's testimony that he may well

have been exposed to asbestos at other times while performing repair

work at Norshipco on various Navy ships from 1978-1996." J.A. at

764. Nonetheless, the ALJ limited his finding to exposure on the

U.S.S. Flint.

On appeal, the Board emphasized the ALJ's determination that

Faulk was a very credible witness. In determining that credible evi-

dence supported the ALJ's decision, the Board noted that,

Claimant testified that, while he believed he may have

worked on many ships exposing him to asbestos at Norfolk,

he could recall only one incident of confirmed exposure to


asbestos, which occurred aboard the U.S.S. FLINT, when

pipe insulation ruptured in a particular compartment where

he worked; claimant testified he entered this area twice fol-

lowing the rupture to pick up and return tools. Claimant

stated that he wore a respirator on the day he learned of the

presence of asbestos, but had not been wearing a respirator

at the time the rupture occurred. The [ALJ] further reasoned

that the credible testimony of Mr. Harrington, an industrial

hygienist at Newport News, generally buttresses claimant's

testimony that he may have been exposed to asbestos at

other times while performing repair work at Norfolk on var-

ious Navy ships. According to Mr. Harrington, based on the

Naval Ship's Technical Manual, § 635-10.8 (1st rev. May

15, 1986), ships built prior to 1971 used asbestos for thermal

insulation. Mr. Harrington confirmed that two of the ships

on which claimant worked at Norfolk were built before


J.A. at 774-75 (citations and footnotes omitted). As a result, the Board



It is undisputed that asbestos exposure caused Faulk's peritoneal

mesothelioma. The sole issue is the identity of the employer responsi-

ble for the exposure under the LHWCA. The last employer rule,

which controls the allocation of liability among multiple employers

or carriers in occupational disease cases, was set forth in Traveler's

Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), and has been

followed by many circuits. See e.g., Liberty Mutual Ins. Co. v. Com-

mercial Union Ins. Co., 978 F.2d 750, 752 (1st Cir. 1992); Avondale

Indus., Inc. v. Director, OWCP (Cuevas), 977 F.2d 186, 190 (5th Cir.

1992); Port of Portland v. Director, OWCP, 932 F.2d 836, 840 (9th

Cir. 1991); see also Newport News Shipbuilding and Dry Dock v.

Fishel, 694 F.2d 327, 329 n.2 (4th Cir. 1982) (explaining the last

employer rule but finding instead that the aggravation rule was appli-

cable to the given facts). In Cardillo, the Second Circuit held that:

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, should be liable for the full amount

of the award.

Cardillo, 225 F.2d at 145.

In adopting the rule, the Second Circuit noted that it was meant to

avoid the difficulties and delays in administration of the Act that

would result if courts attempted to apportion liability. Cardillo, 225

F.2d at 145. The court recognized the practical difficulties of appor-

tionment stating,

The nature of occupational diseases and the dearth of medi-

cal certainty with respect to the time that is required for

them to develop and the permanence and extent of the resul-

tant injurious effects at different stages of the diseases' evo-

lution, make it exceedingly difficult, if not practically

impossible, to correlate the progression of the disease with

specific points in time or specific industrial experiences.

Id. at 144. While Norshipco "accepts the validity" of the Cardillo

holding, it argues that NNS was the last employer to expose Faulk to

injurious stimuli, and is therefore liable for benefits under the

LHWCA. Norshipco challenges the ALJ's findings and conclusions

by suggesting that NNS had the burden of proof and did not meet it;

that the ALJ's findings were not based on substantial evidence; and

that even if Faulk were considered exposed at Norshipco, Norshipco

rebutted the presumption of liability.

Under the LHWCA, an employee is benefitted by a statutory pre-

sumption of compensability. Section 20(a) provides that "in any pro-

ceeding for the enforcement of a claim for compensation under this

chapter it shall be presumed, in the absence of substantial evidence

to the contrary, that the claim comes within the provisions of this

chapter." 33 U.S.C. § 920(a). "The presumption is a broad one, and

advances the facility with which claims are to be treated to further the

Act's purpose of compensating injured workers regardless of fault."

Universal Maritime Corp. v. Moore, 126 F.3d 256, 262 (4th Cir.



The application of this presumption has resulted in a burden shift-

ing scheme of proof for liability determinations. "An employee seek-

ing to have the benefit of the statutory presumption must first allege

(1) an injury or death (2) that arose out of and in the course of (3) his

maritime employment." Id.1 Once the employee makes this showing,

the burden shifts to the employer, who must rebut the presumption

with substantial evidence. See id. In order to rebut this presumption,

the employer must prove that the exposure was not injurious or that

the employee was exposed to injurious stimuli while performing work

covered by the LHWCA for a subsequent employer. See Avondale

Indus. (Cuevas), 977 F.3d at 190. An injurious exposure is one which

had the potential to cause the disease or harm at issue. See id.; see

also Todd Pacific Shipyards Corp. v. Director, OWCP (Picinich), 914

F.2d 1317, 1320 (9th Cir. 1990) (requiring proof that exposure has the

potential to cause the harm).

This presumption and resulting burden shifting apply two-fold in

this case. First, it applies to NNS as Faulk's former employer. In that

case, once Faulk established entitlement to the presumption, the bur-

den shifts to NNS to rebut that presumption by showing either that the

exposure did not have the potential to cause the harm or that Faulk

was exposed to injurious stimuli with such potential while working

for a subsequent employer.

While the ultimate conclusion, that Norshipco was the last respon-

sible employer, is supported by substantial evidence, the ALJ's con-

clusion that NNS rebutted the presumption against it by establishing

that Faulk was exposed subsequently at Norshipco was in error. In

order for NNS to relieve itself of liability and foist liability on Nor-

shipco, NNS must have proved that the U.S.S. Flint exposure had the

potential to cause Faulk's disease. This, NNS failed to do. Evidence

that the exposure simply occurred is not enough.


1 The Director questions the showing required for a claimant to estab-

lish his initial entitlement to the section 20(a) presumption of compensa-

bility. We, however, decline to address this issue because regardless of

whether a claimant need only file a sufficient claim or make some evi-

dentiary showing, Faulk did both.


The alternative application of the presumption would apply directly

to Norshipco. In that case, once Faulk established that he was entitled

to the presumption in regard to his employment at Norshipco, the bur-

den shifted to Norshipco to establish that such exposure did not have

the potential to cause the disease or that Faulk was exposed to stimuli

which had the potential to cause the disease while performing work

for a subsequent employer. As Faulk had no employer subsequent to

Norshipco, the only way in which Norshipco could have rebutted the

presumption of compensability would have been to establish that

Faulk's exposure, while working for Norshipco, did not have the

potential to cause the harm. Recognizing the suitability of this analy-

sis to Faulk's claim, the Board affirmed the ALJ's ultimate decision

on the reasoning that Norshipco had failed to meet this burden.2

This court reviews the Board for errors in law and to assure that

the Board adhered to the substantial evidence standard when it

reviewed the decision of the ALJ. See Newport News Shipbuilding

and Dry Dock Co. v. Director, OWCP (Harcum), 131 F.3d 1079,

1081 (4th Cir. 1997). The LHWCA mandates that an ALJ's findings

be conclusive if they are supported by substantial evidence on the

record as a whole. 33 U.S.C. § 921(b)(3). Rejecting the ALJ's conclu-

sion that Faulk was sufficiently exposed aboard the U.S.S. Flint, Nor-

shipco asserts that it did not expose Faulk to injurious stimuli at all.

It argues that because Faulk was not present when the pipe ruptured,

he entered the compartment for only five minutes and was wearing a

respirator, the space was not dusty, and the rupture was repaired that

night, ergo he was not exposed. As a result, Norshipco concludes that

"the record is devoid of any evidence of exposure to airborne parti-

cles." Appellant's Br. at 24.

The Board affirmed the ALJ noting his authority to evaluate the

evidence and assess witness credibility. Granted, the Board could

have shown more care in selecting the facts for its opinion. For exam-


2 Norshipco argues that the presumption's applicability to it, as

opposed to NNS, is not preserved for appeal because the issue was not

raised below. However, Faulk filed his claim for benefits against each

employer. And, as noted, infra, the Board based its decision affirming

the award on the presumption's applicability to Norshipco. Accordingly,

we have the authority to review the Board's legal reasoning.


ple, it mentions that Faulk was not wearing a respirator during the

rupture but fails to include that he was not present. However, this

omission does not indicate that the Board failed to adhere to the stan-

dard. Norshipco also takes issue with the Board's reference to Har-

rington's testimony about Faulk's career exposure, implying that the

Board improperly disregarded the ALJ's decision to limit exposure to

only the U.S.S. Flint. This reference is nothing more than an indica-

tion that the Board reviewed the ALJ's decision on the record as a


Like the Board, we must affirm if the findings are supported by

substantial evidence. In its appeal, Norshipco focuses on Faulk's time

in the compartment, emphasizing its brevity and his use of a respira-

tor. The ALJ acknowledged these points but noted that Faulk had

worked in and around the compartment for days. In particular, the

ALJ found that there was no evidence that the compartment was

closed off before or after the rupture. He also found that Faulk had

not worn a respirator constantly while working around the area on the

day of the accident. Moreover, Faulk was twice permitted to enter the

area after the rupture to pick up and return his tools. In making these

findings, the ALJ weighed and commented on the credibility of the

various witnesses. The facts he relied upon are supported by the

record, and his inferences are reasonable. This court must defer to the

fact-finder's credibility assessments and inferences. Carmines, 138

F.3d at 140. A review of the record indicates that the ALJ appropri-

ately examined the logic of the parties' conclusions and evaluated the

evidence. Id. He asked relevant questions of the witnesses and did not

find exposure in every instance presented by Faulk.

Despite this deference, the evidence must still be sufficient- more

than a scintilla but less than a preponderance. Elliott, 990 F.2d at 144.

Norshipco relies upon the absence of visible dust after the rupture and

Harrington's testimony that undisturbed asbestos is not a threat. These

two facts, however, fail to mandate the inference that there was no

injurious exposure aboard the U.S.S. Flint. Furthermore, witnesses

described repair work and the Norshipco environment as very dusty,

even though Faulk testified that after the rupture "it wasn't real dusty,

or nothing in there. It was just normal like it always been. You

couldn't tell nothing had happened." J.A. at 720. The record and the

witness testimony appear to be of the kind that a reasonable mind


could accept to support an adequate conclusion. Basically, Norshipco

asks this court to draw different inferences from the facts. The case

law is clear that this court cannot disregard an ALJ's findings "on the

basis that other inferences might have been more reasonable." Car-

mines, 138 F.3d at 140.

Norshipco argues alternatively that even if Faulk were exposed, the

ALJ erred by not finding that Norshipco rebutted the presumption of

compensability given the latency of the disease and the brevity of the

exposure. With regard to latency, Norshipco points to evidence that

Faulk began experiencing abdominal pain prior to the U.S.S. Flint

incident. Because Faulk experienced abdominal pain prior to the Flint

incident and the latency period for the disease is so long, Norshipco

argues that it is factually impossible for employment at Norshipco to

have contributed to Faulk's mesothelioma. We disagree.

The Ninth Circuit rejected just this type of latency argument by an

insurance carrier in Lustig v. U.S. Dep't of Labor, 881 F.2d 593, 596

(9th Cir. 1989). In Lustig, the claimant worked for Todd Pacific Ship-

yards where he was exposed to asbestos during his employment as a

pipefitter for approximately twenty-two years. Travelers Insurance

provided LHWCA coverage to Todd for the first fifteen years of the

claimant's employment, and Aetna did so for the remaining time.

According to the Ninth Circuit, Aetna's contention, that a ten-year

latency period for asbestos-related cancer meant that any exposure

after that time period would not have affected the claimant's disabil-

ity, "suggest[ed] an unwarranted change of the `last employer rule' set

forth in [Cardillo]." Id. Here, notwithstanding a prolonged latency

period, Norshipco employed Faulk during the last eighteen years of

his employment. During this period, Faulk was exposed to asbestos;

and, Norshipco has failed to establish that such exposure could not

have caused his mesothelioma. As the last employer, Norshipco is lia-

ble for the full amount of the claim.

Norshipco's reliance on Port of Portland v. Director, OWCP

(Ronne), 932 F.2d 836, 840 (9th Cir. 1991), is misplaced. There the

court held that it was factually impossible for the claimant's employ-

ment with the employer to have contributed in any way to his hearing

loss where the claimant began his employment four days after the

administration of the audiogram indicating his hearing loss. While the


court recognized "a demonstrated medical causal relationship between

the claimant's exposure and his occupational disease" was not

required, it insisted on a "rational connection." Id. The evidence in

this case fails to support the inference that due to the prolonged

latency period of mesothelioma it was factually impossible for Faulk

to have sustained injury by his exposure at Norshipco. Furthermore,

Faulk was not diagnosed with the disease until after the U.S.S. Flint


Norshipco also suggests that it does not qualify as the responsible

employer because Faulk's exposure was too brief or too minimal to

have caused the disease. However, even assuming the applicability of

a de minimus requirement, Norshipco has presented no evidence to

establish that Faulk's exposure aboard the U.S.S. Flint was, in fact,

de minimus. It presented no evidence of the asbestos level on the

U.S.S. Flint the day of the incident, nor did it present evidence of the

level of exposure it would take to cause the disease. Dr. Fairman

merely opined that the U.S.S. Flint exposure did not cause Faulk's

mesothelioma. He did not state that such exposure did not have the

potential to cause the disease or was in insufficient quantities to cause


Furthermore, this court has never required proof of a certain level

of exposure to injurious stimuli in order to warrant the attachment of

liability under the LHWCA. The reason for this stems directly from

the humanitarian nature of the LHWCA. See Newport News Ship-

building and Dry Dock Co. v. Fishel, 694 F.2d 327, 330 (4th Cir.

1982) (accepting the aggravation rule for compensability under the

LHWCA, in part, based upon the humanitarian nature of the Act).

"The purpose of the Act is to help longshoremen." Id. (citing Reed v.

Steamship Yaka, 373 U.S. 410, 415 (1963)). It is from this purpose

that the last employer rule originates, as well as a concern for admin-

istrative ease of claims handling and an elimination of the inherent

difficulty in attempting to apportion liability among employers. See

Cardillo, 225 F.2d at 145. Requiring the employee to prove sufficient

levels of exposure to cause the disease puts obstacles before the

employee. Whereas, the last employer rule works on the premise that

all employers will be the last employer an equal amount of the time.

See Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1285 (9th Cir.

1983). In our view, Norshipco's proposed rule would simply not pro-


mote the purposes of the LHWCA. We further note that the Fifth Cir-

cuit has also refused to set de minimus standards for exposure. Citing

Cardillo, it rejected an employer's claim that exposure to sandblasting

on two occasions was insufficient to impose liability. See Fulks v.

Avondale Shipyards, Inc., 637 F.2d 1008, 1011-12 (5th Cir. 1981);

see also Cuevas, 977 F.2d at 190 ("regardless of the brevity of the

exposure, if it has the potential to cause disease, it is considered inju-


Norshipco maintains that we should adopt the rule applied by the

Ninth Circuit in Todd Pacific Shipyards Corp. v. Director, OWCP

(Picinich), 914 F.2d 1317 (9th Cir. 1990). In that case the court held

that the claimant must be exposed "to injurious stimuli in sufficient

quantities to cause the disease." Id. at 1319. Norshipco interprets this

holding as establishing a requirement that the exposure to injurious

stimuli be more than de minimus. However, we decline to adopt such

a rule. In Picinich, the ALJ determined that the claimant's exposure

was "non-injurious" when the ship on which the claimant worked had

undergone a complete asbestos removal procedure prior to his tenure,

and testing of the area showed asbestos levels 250 times below the

limit allowed by government regulations. Id. at 1320-22. This is

clearly distinguishable from the case at bar.


Upon application of the presumption to both NNS and Norhshipco,

we find that neither employer rebutted the presumption of compensa-

bility raised against each of them. Consequently, we find Norshipco

liable as the last employer.

As the responsible employer in this matter pursuant to the provi-

sions of the LHWCA, Norshipco is entitled to credit for the net

amount of all settlement proceeds received by and/or on behalf of

Faulk from the Manville Settlement Trust in the amount of

$20,000.00, and from the Center for Claims Resolution for

$20,000.00, and from all settlements obtained to date.

Accordingly, the decision of the Benefits Review Board, affirming

the ALJ's order for full compensation is