BRB No. 00-0898
JUANITA GUPTON )
(Widow of LESTER GUPTON) )
)
Claimant )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 06/04/2001
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 on Remand Awarding Compensation and
Denying Special Fund Relief of Richard E. Huddleston, Administrative Law
Judge, United States Department of Labor.
Christopher R. Hedrick (Mason, Cowardin & Mason, P.C.), Newport News,
Virginia, for self-insured employer.
Andrew D. Auerbach (Judith E. Kramer, Acting Solicitor of Labor, Carol
DeDeo, Associate Solicitor; Joshua T. Gillelan II, Senior Attorney),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: SMITH, DOLDER and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand Awarding Compensation and
Denying Special Fund Relief (97-LHC-2139) of Administrative Law Judge Richard E.
Huddleston 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).
This is the second time that this case has come before the Board. To briefly
restate the procedural history, claimant's spouse (the decedent), on May 22, 1996,
died from mesothelioma arising out of his employment with employer. Claimant
subsequently sought permanent partial disability and death benefits under the Act,
while employer sought relief pursuant to Section 8(f). See 33 U.S.C.
§§908(c)(23), 908(f), 909. On December 10, 1998, the administrative law
judge issued a decision in which he denied the request for Section 8(f) relief and
remanded the case for entry of a compensation Order. Employer appealed this
decision to the Board. On June 24, 1999, the Board remanded the case for "the
entry of an award of benefits based on stipulations of the parties and/or findings
of fact following a hearing" as well as reconsideration of employer's entitlement
to Section 8(f) relief. Gupton v. Newport News Shipbuilding & Dry Dock
Co., 33 BRBS 94 (1999). In his Decision and Order on Remand, the
administrative law judge awarded the permanent partial disability and death
benefits sought by claimant. In addressing employer's request for Section 8(f)
relief, the administrative law judge found that employer failed to establish that
the decedent suffered from a pre-existing permanent partial disability which
combined with his mesothelioma so as to contribute to the resulting disability.
Accordingly, employer's request for Section 8(f) relief was denied.
Employer now appeals, arguing that the administrative law judge erred in
denying it relief under Section 8(f). The Director, Office of Workers'
Compensation Programs (the Director), responds urging affirmance of the
administrative law judge's decision.
Section 8(f) limits employer's liability for compensation to the first 104
weeks of permanent disability or of death benefits; additional compensation is paid
from the Special Fund. See 33 U.S.C. §944; Stilley v. Newport News
Shipbuilding & Dry Dock Co., 33 BRBS 224 (2000), aff'd, 243 F.3d 179,
35 BRBS 12(CRT)(4th Cir. 2001). Where employer claims Section 8(f) relief and the
case involves two separate claims, as in this case which presents a claim for
partial disability, 33 U.S.C. §908(c)(23), and a claim for death benefits, 33
U.S.C. §909, employer's entitlement to relief must be separately evaluated
with regard to each claim. See generally Newport News Shipbuilding & Dry Dock
Co. v. Howard, 904 F.2d 206, 23 BRBS 131(CRT)(4th Cir. 1990). To avail itself of
Section 8(f) relief where an employee suffers from a permanent partial disability, employer must affirmatively establish:
1) that decedent had a pre-existing permanent partial disability; 2) that the pre-existing disability was manifest to 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. 33 U.S.C. §908(f)(1); 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 (1995). Similarly, employer is
entitled to Section 8(f) relief in a death claim if the employee's death is not due
solely to the work injury, a standard which can be met if employer establishes the
existence of a pre-existing condition which hastened the employee's death. See
Brown & Root, Inc. v. Sain, 162 F.3d 813, 32 BRBS 205(CRT)(4th Cir. 1998);
Fineman v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104
(1993).
In the instant case, employer argues on appeal that the administrative law
judge erred in determining that the opinion of Dr. Reid, employer's in-house
physician, is insufficient to meet its burden of establishing that the decedent
suffered from pre-existing permanent partial disabilities, specifically
hypertension and chronic obstructive pulmonary disease (COPD), which contributed
to his resulting disability and death. We disagree and, for the reasons that
follow, we affirm the administrative law judge's conclusion that employer is not
entitled to Section 8(f) relief.
With regard to the decedent's alleged, pre-existing hypertension, the
administrative law judge found that Dr. Reid's April 2, 1997, opinion that the
decedent suffered from pre-existing hypertensive cardiovascular disease and COPD
was based upon the notes and reports of Drs. Acosta and Harden. The administrative
law judge determined, however, that while Dr. Acosta's March 1987 hand-written
office notes contain a word which might be "hypertension," those notes contain no
clarification of this term. See Emp. Ex. 3. Moreover, the administrative
law judge found that no further mention of "hypertension" exists in the nine years
of subsequent medical reports following the decedent's later medical examinations.
The administrative law judge concluded that Dr. Acosta's notes do not support the
conclusion reached by Dr. Reid and that Dr. Reid's opinion was thus not well-reasoned. Accordingly, the administrative law judge determined that employer
failed to establish that the decedent suffered from pre-existing hypertension.
Decision and Order at 7-8.
Similarly, in addressing Dr. Reid's opinion that the decedent suffered from
pre-existing COPD, the administrative law judge reviewed the evidence and
determined that Dr. Acosta's September 1976 and January 1991 office notes each
contain a hand-written notation which might be the word "bronchitis." The
administrative law judge found, however, that these possible references stand alone
and are unexplained, and that five examinations conducted between the writing of
these two reports fail to mention this alleged condition. The administrative law
judge also found that in the treatment notes at Hampton General Hospital on April
16, 1996, Dr. Harden noted, "Chronic Medical Diseases: COPD." Emp. Ex. 5. This
note was written two years after decedent's mesothelioma was diagnosed and contains
no indication as to whether the COPD pre-existed the mesothelioma. Emp. Ex. 1.
Given the two unexplained notations of bronchitis, separated by five years of
silence on the matter, the administrative law judge found that the evidence
suggests decedent did not have pre-existing COPD. The administrative law judge
thus concluded that employer, through the opinion of Dr. Reid, failed to establish
that decedent suffered from pre-existing COPD.[2]
See Decision and Order at 8.
Similarly, in considering Dr. Reid's testimony in light of the contribution
element required to establish entitlement to relief under Section 8(f), the
administrative law judge noted that Dr. Reid failed to discuss how the decedent was
affected by his alleged hypertension and COPD. Specifically, the administrative
law judge determined that Dr. Reid made no effort to prove the effects of the
decedent's alleged pre-existing conditions but, rather, focused on the average
quantitative effects of hypertension and the reduction in ventilatory values due
to the presence of COPD. Based on these findings, the administrative law judge
concluded that Dr. Reid's opinion was insufficient to establish the contribution
element.
In challenging the administrative law judge's decision, employer repeatedly avers that an administrative law judge
cannot reject uncontroverted medical evidence; thus, employer asserts that the administrative law judge's decision to
discount Dr. Reid's opinion cannot stand and his denial of Section 8(f) relief must be reversed. Contrary to employer's
argument, however, there is no requirement that the administrative law judge credit an uncontradicted medical
opinion. See Carmines, 138 F.3d at 140-141, 32 BRBS at 52-53(CRT) (wherein the court emphasized that an
administrative law judge may not merely credulously accept a physician's assertions, but must examine the logic
of the physician's conclusions and evaluate the evidence upon which those conclusions are based). Thus, the court's
holding in Carmines requires the administrative law judge to determine whether there is a reasoned and
documented basis for the medical opinion, and to evaluate such opinion in light of the evidence in the record considered
as a whole. See Carmines, 138 F.3d at 140-141, 32 BRBS at 52(CRT). In so doing, the administrative law
judge may accept or reject all or any part of any testimony according to his judgment. See Perini Corp. v. Heyde,
306 F.Supp. 1321 (D.R.I. 1969). In the instant case, the administrative law judge's decision not to rely upon
Dr. Reid's testimony, since that physician's opinion is not supported by the underlying medical records and his conclusions
are not adequately reasoned or documented, is within his discretion as the trier-of-fact. See Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Heyde, 306 F.Supp.
1321. Consequently, the administrative law judge's determination that employer failed to establish that the
decedent suffered from a pre-existing permanent partial disability which contributed to his disability and death is
affirmed.[3] See Carmines, 138 F.3d 134, 32 BRBS 48(CRT);
Harcum II, 131 F.3d 1079, 31 BRBS 164(CRT); Harcum I, 8 F.3d 175, 27 BRBS 116(CRT). We,
therefore, affirm the administrative law judge's denial of Section 8(f) relief to employer.
Accordingly, the administrative law judge's Decision and Order on Remand is
affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case
arises, does not apply the manifestation requirement in cases such as the case at bar where the worker suffered 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).
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2)In addition, the administrative law judge found that Dr. Reid did not discuss any specific
disabling effect decedent's alleged hypertension and COPD had upon him. Thus, the administrative law judge concluded
that employer failed to establish that the decedent was disabled to any extent by either his alleged hypertension or COPD.
The mere existence of prior conditions is insufficient to establish the existence of a serious and lasting physical impairment
sufficient to satisfy the pre-existing permanent partial disability element. See CNA Ins. Co. v. Legrow, 935 F.2d
430, 24 BRBS 202(CRT) (1st Cir. 1991).
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3)With regard to decedent's permanent partial disability award, we agree with the Director that
even if it were credited, Dr. Reid's opinion is insufficient to establish contribution in light of the Fourth Circuit's decision
in Carmines. In Carmines, the court specifically stated that in demonstrating an employee's disability is
"materially and substantially greater" due to a pre-existing condition, it is not proper simply to calculate the claimant's
current disability and subtract the disability that resulted from the pre-existing disability. See Carmines, 138 F.3d
at 143, 32 BRBS at 55 (CRT). As this is precisely the method used by Dr. Reid in the instant case, his opinion is in conflict
with the holding in Carmines and is thus insufficient to establish the contribution element regarding employer's
request for relief from claimant's permanent partial disability claim.
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NOTE: This is an UNPUBLISHED LHCA Document.
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