BRB No. 98-1386
MAYO F. SMITH )
)
Claimant )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 07/06/1999 1999
AND 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 Denying Section 8(f) Relief 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.
Janet R. Dunlop (Henry L. Solano, Solicitor of Labor; Carol 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, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Denying Section 8(f) Relief (97-LHC-1161) 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, a shipfitter, was exposed to asbestos for over twenty years during
the course of his employment with employer. Claimant was diagnosed with pulmonary
asbestosis in August 1996, and he retired in 1997. DXS 8, 9. In his Decision and
Order, the administrative law judge accepted the stipulations of the parties as to
the nature and extent of claimant's permanent partial disability, claimant's
average weekly wage for compensation purposes, claimant's entitlement to medical
benefits, and employer's liability for an attorney's fee of $1,500. Decision at
2-3. Thus, the only issue in dispute before the administrative law judge was
employer's entitlement to relief under Section 8(f) of the Act, 33 U.S.C.
§908(f).
In addressing employer's request for Section 8(f) relief, the administrative
law judge found that employer had established that claimant suffered from a pre-existing permanent partial disability, i.e., chronic obstructive pulmonary
disease (COPD) and coronary artery disease, but that employer failed to demonstrate
that those conditions materially or substantially contributed to claimant's present
disability. Accordingly, the administrative law judge denied employer's request
for relief from the Special Fund.
On appeal, employer argues that the administrative law judge erred in finding
that it failed to establish that claimant's pre-existing conditions combined with
his asbestosis, resulting in a greater level of overall impairment. The Director,
Office of Workers' Compensation Programs (the Director), responds, urging
affirmance of the administrative law judge's conclusion that employer failed to
establish the contribution element necessary for relief under Section 8(f).
To avail itself of Section 8(f) relief where an employee suffers from a
permanent partial disability, an employer must affirmatively establish: 1) that
claimant had a pre-existing permanent partial disability; 2) that the pre-existing
disability was manifest to the employer prior to the work-related injury;[1] 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. 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);
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 (CRT)(1995). If
employer fails to establish any of these elements, it is not entitled to Section
8(f) relief. Id.
In order to satisfy the contribution element, an 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.
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, 27 BRBS at 131 (CRT).
In the instant case, there are only two medical opinions of record addressing
the potential relationship between claimant's pre-existing conditions and his
present disability. In seeking to reverse the administrative law judge's decision,
employer challenges the administrative law judge's decision to credit the testimony
of Dr. Scutero rather than the testimony of Dr. Reid. Specifically, employer
asserts that the testimony of Dr. Reid is sufficient to satisfy its burden of
establishing that claimant's present disability is materially and substantially
greater than that which would have resulted from claimant's asbestosis alone. Dr.
Reid, employer's in-house physician, stated that claimant's lung impairment and
resultant disability rating were not solely caused by his asbestosis but were
materially and significantly caused and/or contributed to by his COPD and
hypertensive cardiovascular disease. EX 7. In contrast, Dr. Scutero, who is board
certified in pulmonary and internal medicine, opined that neither of claimant's
pre-existing conditions changed the level of claimant's disability to any
significant degree. DX 6-1. In reaching their opposing conclusions, both Drs.
Reid and Scutero cited an article in Chest magazine.[2] Dr. Reid opined that the article supported his conclusion that
claimant's hypertension and heart disease increased his breathing impairment, EX
7, while Dr. Scutero, citing not only to the article at issue but to subsequent
editorials addressing the findings contained within that article, stated that it
supported his conclusion that any increase in claimant's impairment is minimal.
DX 6.
After review of the record, we hold that the decision of the administrative
law judge is rational, supported by substantial evidence in the record, and is in
accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe, 380 U.S. at 359.
In his decision, the administrative law judge credited and relied upon the opinion
of Dr. Scutero, finding Dr. Scutero to be better qualified based on his Board-certification as a pulmonary specialist, and his opinion to be better reasoned and
documented as concerns the Chest article. Citing the decision of the United
States Supreme Court in Director, OWCP v. Greenwich Collieries, 512 U.S.
267, 28 BRBS 43 (CRT)(1994), the administrative law judge thus found that employer
had not carried its burden of establishing the contribution element, and that
therefore employer's request for Section 8(f) relief must be denied.
We reject employer's argument that the administrative law judge erred by
relying on the findings of Dr. Scutero because his opinion addressed only whether
claimant's pre-existing conditions contributed to claimant's asbestos disease,
whereas Dr. Reid found they substantially and materially contributed to claimant's
breathing impairment. Contrary to employer's assertion, however, Dr. Scutero also
addressed the relationship between claimant's prior conditions and his overall
breathing impairment, as he stated that:
it is my opinion with a reasonable degree of medical certainty
that [claimant]...has a 50 percent impairment of his
respiratory system that is caused in whole or in
significant part by his asbestosis.
DX 6-2 (emphasis added). The administrative law judge's decision to rely upon this
testimony is within his discretion as the trier-of-fact. Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969). Thus, as the
administrative law judge rationally credited evidence that claimant's present
condition is not materially and substantially greater than that
which would have resulted from his asbestosis alone, the administrative law judge's
conclusion that the contribution element of Section 8(f) has not been met must be
affirmed.[3]
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
To Top of Document
Footnotes.
1)The United States Court of Appeals for the Fourth Circuit, in whose jurisdiction this case
arises, does not apply the manifestation requirement in cases such as the case at bar where the worker suffers from a post-retirement occupational disease. See Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 248,
24 BRBS 190 (CRT)(4th Cir. 1990).
Back to Text
2)See Enright, et al, Reduced Vital Capacity in Elderly Persons with
Hypertension, Coronary Heart Disease, or Left Ventricular Disease, 107 Chest 28 (Jan. 1, 1995).
Back to Text
3)We thus need not address the Director's contention that the administrative law judge erred in
finding that employer carried its burden of establishing that claimant suffered from an existing disability prior to the
diagnosis of asbestosis.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
