BRB No. 98-1381
HIPOLITO B. QUILES )
)
Claimant )
)
v. )
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GENERAL DYNAMICS CORPORATION ) DATE ISSUED: 07/19/1999
1999
)
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Self-Insured )
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
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Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Awarding Benefits of David W. Di
Nardi, Administrative Law Judge, United States Department of Labor.
Edward J. Murphy, Jr. (Murphy and Beane), Boston, Massachusetts, for
self-insured employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order - Awarding Benefits (95-LHC-43) of
Administrative Law Judge David W. Di Nardi 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, a painter, injured his back at work on July 14, 1989.
Claimant has not returned to work since that injury. Claimant previously
injured his back at work on January 25, 1989, and April 7, 1989, but
returned to his usual work after both of these injuries after being off work
from two to five days for each of them. Claimant had back surgery on May
15, 1990. Employer voluntarily paid claimant temporary total and permanent
total disability benefits. 33 U.S.C. §908(a), (b). The administrative
law judge awarded claimant temporary total disability benefits from July 17,
1989, through January 21, 1992, and permanent total disability benefits from
January 22, 1992, 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. The Director, Office of Workers' Compensation Programs, did
not file a response brief.
We first address employer's challenge to the administrative law judge's
finding that it did not establish that claimant suffered from a pre-existing
permanent partial disability. Section 8(f) shifts the liability to pay
compensation for permanent disability or death after 104 weeks from an employer to
the Special Fund established in Section 44 of the Act, 33 U.S.C. §§908,
944. An employer may be granted Special Fund relief, in a case where a claimant
is permanently totally disabled, if it establishes that the claimant had a manifest
pre-existing permanent partial disability, and that his current permanent total
disability is not due solely to the subsequent work injury. 33 U.S.C.
§908(f)(1); Director, OWCP v. Luccitelli, 964 F.2d 1303, 26 BRBS 1
(CRT)(2d Cir. 1992); Two "R" Drilling Co. v. Director, OWCP, 894 F.2d 748,
23 BRBS 34 (CRT)(5th Cir. 1990); Dominey v. Arco Oil & Gas Co., 30 BRBS 134
(1996). A pre-existing permanent partial disability is a serious lasting physical
condition that would motivate a cautious employer to discharge the employee because
of a greatly increased risk of employment-related accident and compensation
liability. Director, OWCP v. General Dynamics Corp. [Bergeron], 982 F.2d
790, 26 BRBS 139 (CRT)(2d Cir. 1992); C & P Telephone Co. v. Director, OWCP,
564 F.2d 503, 6 BRBS 399 (D.C. Cir. 1977); Kubin v. Pro-Football, Inc., 29
BRBS 117 (1995). In this case, employer alleged that claimant's pre-existing
spondylolisthesis and spondylolysis and two prior back injuries on January
25, 1989, and April 7, 1989, support its claim for Section 8(f) relief.
The administrative law judge found that claimant's alleged pre-existing
spondylolysis was not a pre-existing permanent partial disability because:
(1) while the lumbosacral spine x-rays of June 23, 1986, and July 18, 1989,
showed spondylolysis at L5-S1, the April 13, 1989, lumbosacral spine x-ray
was normal; and (2) claimant continued to work although he suffered two
flare-ups on January 25, 1989, and April 7, 1989. Decision and Order at 31-32. As employer correctly contends, the administrative law judge did not
discuss claimant's testimony that he worked in pain after his first two back
injuries and continued working because he had a family to support and did
not want to lose his job. RX 21 at 16-18. Moreover, a claimant need not
be economically disabled in order to be considered disabled in the context
of Section 8(f). See Bergeron, 982 F.2d at 790, 26 BRBS at 139 (CRT);
see also Morehead Marine Services, Inc. v. Washnock, 135 F.3d 366,
32 BRBS 8 (CRT)(6th Cir. 1998). Nor did the administrative law judge
discuss Dr. Browning's testimony that the April 13, 1989, x-ray reading is
in error and that the 1986 finding of first degree spondylolisthesis
demonstrates a permanent condition and rises to the level of being such a
serious physical disability that someone who considered employing claimant
would be concerned about an increased compensation risk. RX 24 at 6-7. As
the administrative law judge did not discuss this relevant evidence, we
vacate the administrative law judge's finding that employer did not
establish that claimant suffered from a pre-existing permanent partial
disability and remand this case to the administrative law judge for further
consideration. See Bergeron, 982 F.2d at 790, 26 BRBS at 139 (CRT);
RX 21 at 16-18, 24 at 6-7.
We next address employer's challenge to the administrative law judge's
finding that it did not establish the contribution element required for
Section 8(f) relief. Employer contends that the administrative law judge
did not discuss Dr. Browning's testimony relevant to the contribution issue.
In order to establish the contribution element, employer must show, by medical or
other evidence, that claimant's subsequent injury alone would not have caused
claimant's permanent total disability. See Luccitelli, 964 F.2d at 1303, 26
BRBS at 1 (CRT).
The administrative law judge found, summarily, that because claimant had no
pre-existing permanent partial disability, claimant's permanent total disability
is due solely to his July 14, 1989, back injury, an injury which caused claimant
to stop working for good and which required that he undergo a spinal fusion.
Decision and Order at 32. In so concluding, the administrative law judge did not
discuss Dr. Browning's testimony that the work injury in July 1989 was an
aggravation of the underlying pre-existing condition and did not alone
necessitate claimant's back surgery, that the physician's restrictions
imposed in October 1989 were due to the July 1989 back sprain superimposed
on the pre-existing spondylolisthesis and would not be in place if claimant
only had the sprain, that the outcome of the July 1989 injury is materially
and substantially worse than it would have been if not for the pre-existing
condition, and that the July 1989 injury was not the sole basis of
claimant's disability. RX 24 at 9-14. As the administrative law judge did
not discuss this relevant evidence, as asserted by employer, we vacate the
administrative law judge's finding that employer did not establish the
contribution element, and remand this case to the administrative law judge
for further consideration consistent with law. See Luccitelli, 964
F.2d at 1303, 26 BRBS at 1 (CRT); RX 24 at 9-14. If, on remand, the
administrative law judge finds that employer has established that claimant
suffers from a pre-existing permanent partial disability and that his
permanent total disability is not due solely to the last injury, the
administrative law judge must determine whether the pre-existing permanent
partial disability was manifest to employer. See Sealand
Terminals, Inc. v. Gasparic, 7 F.3d 321, 28 BRBS 7 (CRT)(2d Cir. 1993);
Goody v. Thames Valley Steel Corp., 31 BRBS 29 (1997), aff'd mem.
sub nom. Thames Valley Steel Corp. v. Director, OWCP, 131 F.3d 132 (2d
Cir. 1997).
Accordingly, the administrative law judge's denial of Section 8(f) relief to
employer is vacated, and the case is remanded to the administrative law judge for
further consideration consistent with this opinion. In all other respects, the
administrative law judge's Decision and Order - Awarding Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
NOTE: This is an UNPUBLISHED LHCA Document.
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