BRB No. 98-1341
WILBUR S. JOHNSON, JR. )
)
Claimant )
)
v. )
)
NEWPORT NEWS SHIPBUILDING AND ) DATE ISSUED: 07/02/1999
1999
DRY DOCK COMPANY )
)
Self-Insured )
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
Administrative Law Judge, United States Department of Labor.
Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for
self-insured employer.
LuAnn B. Kressley (Henry L. Solano, Solicitor of Labor; Carol A. DeDeo,
Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Employer appeals the Decision and Order (94-LHC-1771) of Administrative Law
Judge Fletcher E. Campbell, Jr., rendered on a claim filed pursuant to the
provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33
U.S.C. §901 et seq. (the Act). We must affirm the findings of fact and
conclusions of law of the administrative law judge which are rational, supported
by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant, an electrician, injured his right shoulder at work on September 25,
1992, while pulling a cable. Claimant last worked for employer in June 1995.
Employer voluntarily paid claimant temporary total and temporary partial disability
benefits. Claimant requested modification of his stipulated award for temporary
partial disability benefits, seeking permanent total disability benefits from
January 6, 1996, to the present and continuing. 33 U.S.C. §922. The
administrative law judge found that claimant met his prima facie case of
total disability as stipulated, that employer established the availability of
suitable alternate employment, and that claimant's post-injury wage-earning
capacity is $4.25 per hour, the minimum wage in 1992. The administrative law judge
found that claimant reached maximum medical improvement on January 9, 1996, as
stipulated. Consequently, the administrative law judge awarded claimant permanent
partial disability benefits from January 9, 1996, to the present and continuing,
and medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907. The
administrative law judge denied employer relief from continuing compensation
liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f).
On appeal, employer challenges the administrative law judge's denial of
Section 8(f) relief. Employer contends that the administrative law judge erred in
denying it Section 8(f) relief, asserting that Dr. Reid's opinion is sufficient to
establish that claimant's ultimate permanent partial disability materially and
substantially exceeds his disability as it would have resulted from the work injury
alone in accordance with the holdings of the United States Court of Appeals for the
Fourth Circuit in Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
[Carmines], 138 F.3d 134, 32 BRBS 48 (CRT)(4th Cir. 1998), Director, OWCP
v. Newport News Shipbuilding & Dry Dock Co. [Harcum II], 131 F.3d 1079, 31 BRBS
164 (CRT)(4th Cir. 1997), and Director, OWCP v. Newport News Shipbuilding & Dry
Dock Co. [Harcum I], 8 F.3d 175, 27 BRBS 116 (CRT)(4th Cir. 1993), aff'd on
other grounds, 514 U.S. 122, 29 BRBS 87 (1995). The Director, Office of
Workers' Compensation Programs (the Director), responds in support of the
administrative law judge's denial of Section 8(f) relief.
To avail itself of Section 8(f) relief where claimant suffers from a permanent
partial disability, employer must affirmatively establish: 1) that claimant had a
pre-existing permanent partial disability; 2) that the pre-existing disability was
manifest to employer prior to the work-related injury; and 3) that the ultimate
permanent partial disability is not due solely to the work injury and that it
materially and substantially exceeds the disability that would have resulted from
the work-related injury alone. Carmines, 138 F.3d at 134, 32 BRBS at 48
(CRT); Harcum II, 131 F.3d at 1079, 31 BRBS at 164 (CRT); Harcum I,
8 F.3d at 175, 27 BRBS at 116 (CRT). If employer fails to establish any of these
elements, it is not entitled to Section 8(f) relief. Id. In this case,
employer alleged that claimant's prior back impairment or his hearing loss entitles
it to Section 8(f) relief.
In order to satisfy the contribution element, employer must show by
medical evidence or otherwise that the ultimate permanent partial disability
materially and substantially exceeds the disability as it would have resulted from
the work-related injury alone. In Harcum I, the court explained the above
standard as follows:
A showing of this kind requires quantification of the level of
impairment that would ensue from the work-related injury alone. In
other words, an employer must present evidence of the type and extent of
disability that the claimant would suffer if not previously disabled
when injured by the same work-related injury. Once the employer
establishes the level of disability in the absence of a pre-existing
permanent partial disability, an adjudicative body will have a basis on
which to determine whether the ultimate permanent partial disability is
materially and substantially greater.
Harcum I, 8 F.3d at 185-186, 27 BRBS at 130-131 (CRT). In Harcum II,
the Fourth Circuit reiterated that employer is not limited to medical evidence, but
may also submit vocational evidence in an effort to meet its burden to establish
the contribution element. Harcum II, 131 F.3d at 1079, 31 BRBS at 164 (CRT).
The evidence must determine what claimant's disability would have been
independent of the pre-existing injury; it is not proper simply to calculate
the current disability and subtract the disability that resulted from the
pre-existing injury. Carmines, 138 F.3d at 134, 32 BRBS at 48 (CRT).
In denying employer Section 8(f) relief in this case, the administrative
law judge initially assumed that claimant had a pre-existing permanent
partial disability that was manifest to employer.[1] See Decision and Order at 10. The administrative law
judge then found that Dr. Reid's opinion is insufficient to establish the
contribution element as it does not quantify claimant's current disability
with and without the alleged pre-existing disabilities. Decision and Order
at 10. Consequently, the administrative law judge denied employer Section
8(f) relief as he could not determine whether claimant's ultimate disability
is materially and substantially worse as a result of claimant's pre-existing
disabilities.
We affirm the administrative law judge's finding that Dr. Reid's opinion
is insufficient to establish the contribution element. Dr. Reid's
opinion states in relevant part:
Mr. Johnson's disability is not caused by his 1992 right
shoulder injury alone, but rather his disability is materially
contributed to, and made materially and substantially worse by
his pre-existing chronic back disability and hearing loss.
Even with his shoulder disability, Mr. Johnson can perform
available telephone solicitor work. However, Mr. Johnson
would not be hired for such work because of his hearing loss.
Mr. Johnson's back injury also adds to his lack of
employability.
Emp. Ex. 15(d). Dr. Reid's opinion that claimant's pre-existing back injury
adds to his lack of employability is not sufficient to satisfy the
contribution element.[2] See
Carmines, 138 F.3d at 134, 32 BRBS at 48 (CRT). Employer also asserts
that the evidence establishes that claimant's work injury to the right
shoulder was minor, necessitated minimal restrictions, and that it was only
when Dr. Walko took into consideration claimant's pre-existing chronic low
back problems that claimant's restrictions became so severe that his
employment prospects were severely limited. The evidence does not support
employer's assertion. Dr. Walko's report does not identify which
restrictions are imposed for the work injury to the right shoulder and which
are for the pre-existing low back problems; thus, Dr. Walko's restrictions
do not establish the level of impairment that would ensue from the work
injury to the shoulder alone.[3]
Consequently, with respect to the pre-existing back injury, the
administrative law judge's determination that he did not have a basis on
which to determine whether claimant's ultimate permanent partial disability
is materially and substantially greater is affirmed as it is supported by
substantial evidence and in accordance with law. See Carmines, 138
F.3d at 134, 32 BRBS at 48 (CRT); Harcum II, 131 F.3d at 1079, 31
BRBS at 164 (CRT); Harcum I, 8 F.3d at 175, 27 BRBS at 116 (CRT);
Emp. Ex. 15(d). We, therefore, affirm the administrative law judge's
denial to employer of Section 8(f) relief based on that injury.[4]
With regard to claimant's pre-existing hearing loss, Dr. Reid's opinion
that claimant cannot perform available telephone solicitor work because of
it, but could with his shoulder disability, also does not establish the type
and extent of disability that claimant would have suffered without the pre-existing hearing loss. Dr. Reid's opinion with respect to claimant's pre-existing hearing loss is similar to the vocational evidence offered in
Harcum II which was held sufficient to establish the contribution
element; the difference between these two cases, however, is that in the
instant case the medical or vocational evidence does not specifically
establish the extent to which claimant's wage-earning capacity was reduced
by claimant's being unable to take a telephone solicitor job due to his pre-existing hearing loss.[5] In fact,
employer's vocational expert, Mr. Karmolinski, whose opinion was credited
by the administrative law judge, did not identify such jobs as suitable for
claimant, nor did he rule out telephone solicitor jobs or any type of job
due to claimant's pre-existing hearing loss.[6] See Decision and Order at 7-9; Emp. Ex. 14; Tr. at 28, 31,
39-40. Consequently, with respect to the pre-existing hearing loss, the
administrative law judge's determination that he did not have a basis on which to
determine whether claimant's ultimate permanent partial disability is materially
and substantially greater is affirmed as it is supported by substantial evidence
and as it is in accordance with law.[7] See
Carmines, 138 F.3d at 134, 32 BRBS at 48 (CRT); Harcum II, 131 F.3d at
1079, 31 BRBS at 164 (CRT); Harcum I, 8 F.3d at 175, 27 BRBS at 116 (CRT);
Emp. Ex. 15(d). We, therefore, affirm the administrative law judge's denial
to employer of Section 8(f) relief based on that injury.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) The Director concedes that claimant has a manifest, pre-existing low back
disability, but makes no such concession with respect to claimant's hearing loss. Dir. Br. at 1 n. 1.
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2) In Carmines, the court stated that a doctor's mere assertion that claimant's
ultimate disability was made materially and substantially worse by claimant's pre-existing conditions was not sufficient
to warrant Section 8(f) relief. Carmines, 138 F.3d at 144, 32 BRBS at 55 (CRT). In the instant case, the fact that
claimant's pre-existing back disability was "chronic," does not necessarily lead to an inference that this chronic, pre-existing
back disability materially and substantially contributed to claimant's ultimate permanent partial disability. See generally
Two "R" Drilling Co. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34 (CRT)(5th Cir. 1990); see also
John T. Clark & Son of Maryland, Inc. v. Benefits Review Board, 621 F.2d 93, 95 n. 2, 12 BRBS 229, 232 n. 2 (4th
Cir. 1980).
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3) 3Dr. Walko restricted claimant from no work above the shoulder and no climbing, two
hours of bending, kneeling, and stooping, two and one-half hours of walking, four hours of standing, six hours of sitting,
lifting up to 20 pounds with the left hand, but no lifting with the right arm. Emp. Exs. 9(b), 14(c).
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4) 4Employer's reliance on the holding in Director, OWCP v. Newport News
Shipbuilding & Dry Dock Co. [Parkman], No. 96-2653 (4th Cir. Sep. 18, 1997)(unpub.) in support of this
contention is misplaced as Parkman is unpublished, and as the Fourth Circuit has published several cases
addressing the issue at hand. See United States Court of Appeals for the Fourth Circuit Local Rule 36(c).
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5) 5In Harcum II, the vocational expert stated that without the claimant's
pre-existing cervical spine injury, the claimant would be capable of earning $6 per hour, but with it, he was
capable only of earning $3.80 per hour, and that because of claimant's pre-existing cervical spine injury, telephone
solicitation is not a possible vocational option whereas it would be if he did not have the pre-existing back
condition. Harcum II, 131 F.3d at 1082, 31 BRBS at 166 (CRT).
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6) 6Mr. Karmolinski identified suitable alternate jobs for claimant such as unarmed
security guard, door greeter, cashier, order taker, and donation center attendant. Emp. Ex. 14; Tr. at 28. Dr. Walko did
not approve of one of the cashier jobs or the order taker position (with which Mr. Karmolinski agreed) because they
involved using both the left and right arms. Tr. at 31, 39-40.
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7) 7The type of evidence sufficient to establish contribution in the Fourth Circuit was
offered in Farrell v. Norfolk Shipbuilding & Dry Dock Corp., 32 BRBS 118, vacated on other grounds on
recon., 32 BRBS 282 (1998). In Farrell, the Board held that the vocational expert's testimony that the
claimant's pre-existing mental impairment increased the number of jobs no longer available to him for generally transferable
occupations from 80 to 97 percent and for unskilled occupations from 48-49 to 76 percent is sufficient, if credited, to
establish the contribution element, as it establishes the level of impairment that would ensue from the work injury alone
and thereby provides the administrative law judge with a basis to determine if claimant's ultimate permanent partial
disability is materially and substantially greater than his disability caused by the work injury alone. Farrell, 32
BRBS at 121.
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NOTE: This is an UNPUBLISHED LHCA Document.
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