930 F.2d 29
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
SAN FRANCISCO STEVEDORING COMPANY, Fireman's Fund Insurance
DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 14, 1991.
Decided March 27, 1991.
Before: D.W. NELSON, KOZINSKI and THOMAS G. NELSON, Circuit Judges.
Petitioner challenges the Benefits Review Board's decision affirming an award of benefits under the Longshore and Harbor Workers' Compensation Act, 33 USC Sec. 901 et seq. We must uphold the BRB if the ALJ's determination that the decedent was exposed to asbestos while employed by petitioner was supported by substantial evidence. McDonald v. Director, OWCP, 897 F2d 1510, 1511-12 (9th Cir 1990).
Under our decision in Todd Pacific Shipyards Corp. v. Director, OWCP, 914 F2d 1317, 1320 (9th Cir 1990), a covered employer is responsible if the employee can prove exposure to the injurious stimuli "in such quantities [as] had the potential to cause his disease." The ALJ was correct that under the last employer rule, the claimant need not prove that the particular exposure on the last day of employment had the potential to cause any identified harm by itself; "it is sufficient if the exposure is of the type which, when sufficiently accumulated, causes the disease in question." ALJ Decision and Order on Remand, ER 16.
The ALJ cited the following evidence in support of his finding of responsibility: Decedent's co-worker testified that asbestos wrappings were on all the jitney exhaust pipes on the pier at all times; the wrappings tended to fray, scattering loose asbestos on the dock and in the air; and the usually windy conditions on the dock and the proximity of the airborne asbestos to the decedent's work led to the inference that the asbestos was respirable. Id at 15-16. This constituted substantial evidence of asbestos exposure.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3