Albina Engine & Machine v. Director, OWCP, No. 09-70592 - - U.S. Ninth Circuit
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Albina Engine & Machine v. Director, OWCP, No. 09-70592

Review of Longshore and Harbor Workers' Compensation Act Decision

In Albina Engine & Machine v. Director, OWCP, No. 09-70592, a petition for review of a decision of the Benefits Review Board upholding the Administrative Law Judge's (ALJ) ruling that petitioner was liable for payment of death benefits to claimant under the Longshore and Harbor Workers' Compensation Act (LHWCA), the court granted the petition where, in LHWCA occupational disease cases involving multiple employers: 1) the 33 U.S.C. section 920(a) (section 20(a)) presumption must be invoked against each employer before that employer may be found liable for payment of benefits; 2) each employer may rebut the section 20(a) presumption with substantial evidence that it is not the last responsible employer; 3) once an employer has rebutted the section 20(a) presumption, it may be found liable only if a preponderance of the evidence supports a finding that that employer is responsible; and 4) the analysis with respect to each employer shall be applied sequentially, beginning with the last (most recent) employer, and need not be conducted for earlier employers once a responsible employer is found.

 

As the court wrote:  "Albina Engine & Machine ("Albina") petitions for review of a decision of the Benefits Review Board (the"Board") upholding the Administrative Law Judge's ("ALJ") ruling that Albina is liable for payment of death benefits to Karen McAllister ("Claimant") under the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. § 901 et seq. Claimant is the widow of James McAllister ("Decedent"), who died of mesothelioma as a result of exposure to asbestos during his work as a carpenter for three shipyard employers, one of which was Albina."

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