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                                BRB No. 02-0723

CHARLES COLLINS                    )
                                   )
          Claimant                 )
                                   )         
     v.                            )
                                   )    
NEWPORT NEWS SHIPBUILDING &   )
DRY DOCK COMPANY                   )DATE ISSUED:   06/18/2003
                                   )
                      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. 

     Christopher R. Hedrick (Mason, Mason, Walker & Hedrick), Newport News,
     Virginia, for self-insured employer. 

     Before:  DOLDER, Chief Administrative Appeals Judge, SMITH and
     McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order (01-LHC-2163) 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 administrative law
judge's findings of fact and conclusions of law if they are supported by
substantial evidence, are rational, and are in accordance with law.  33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).
     Claimant was exposed to asbestos during the course of his employment with
employer as a welder/shopfitter.  On September 20, 1998, Dr. Nichols diagnosed
claimant as having asbestosis. In their stipulations, employer and claimant agreed
that claimant is permanently totally disabled due in part to asbestosis, which was
diagnosed within one year of his retirement from the shipyard.  They stipulated
that claimant is entitled to permanent partial disability benefits for a 100
percent impairment; this rating was made pursuant to the American Medical
Association Guides to the Evaluation of Permanent Impairment (AMA
Guides).  They further stipulated that claimant's medical condition
necessitated his early retirement from employment.  EX 1.  The sole issue before
the administrative law judge was employer's entitlement to relief from continuing
compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f). 
     In his Decision and Order, the administrative law judge restated the parties'
stipulations as agreeing that claimant was permanently partially disabled due in
part to asbestosis. See Decision and Order at 2-3.  He awarded claimant
ongoing permanent partial disability benefits based on two-thirds of the applicable
average weekly wage. Id. at  6.  In addressing employer's claim for Section
8(f) relief, the administrative law judge discussed the opinions of Drs. Tornberg
and Donlan and found their opinions insufficient to establish that claimant's total
disability is not due solely to asbestosis.  Since employer's proffer, moreover,
did not include any vocational evidence, the administrative law judge concluded
that employer failed to establish that claimant's total disability is not due
solely to his work-related injury.  Thus, the administrative law judge found that
employer is not entitled to Section 8(f) relief. Id.  at 5.
     On appeal, employer challenges the administrative law judge's denial of
Section 8(f) relief.  The Director, Office of Workers' Compensation Programs, has
not responded to this appeal.
     We cannot affirm the denial of Section 8(f) relief on the reasoning of the
administrative law judge and thus must remand this case for further findings.  The
parties' stipulations as interpreted by the administrative law judge do not
consistently reflect whether the award falls under Section 8(c)(23) or Section
8(a).  As this determination affects the applicable legal standard under Section
8(f), the case must be remanded.
     The parties stipulated that claimant has a 100 percent permanent impairment
pursuant to the AMA Guides due to his asbestosis and that he is permanently
totally disabled.  EX 1.  An award based on physical impairment alone under Section
8(c)(23) is appropriate only if claimant is a voluntary retiree, that is, if his
work-related occupational disease did not cause his withdrawal from the workforce.
See 33 U.S.C. §§902(10), 908(c)(23); see Hanson v. Container
Stevedoring Co.,  31 BRBS 155 (1997); Smith v. Ingalls Shipbuilding Div.,
Litton Systems, Inc., 22 BRBS 46 (1989);  20 C.F.R. §702.601(b), (c).  In
this case, the parties also stipulated that claimant's "medical condition"
necessitated his early retirement from all employment.  Such an employee is
properly entitled to benefits for permanent total disability under Section 8(a).
33 U.S.C. §908(a). See Hanson, 31 BRBS  155; Alcala v. Wedtech
Corp., 26 BRBS 140 (1992).  The parties' stipulations are consistent with this
legal holding in that they state claimant is permanently totally disabled in
stipulation 8.  However, the agreement also states claimant has a 100 percent
impairment under the AMA Guides in stipulation 9, and in stipulation 10,
agrees to claimant's average weekly wage for "that permanent partial disability"
at a rate computed by multiplying 2/3 by the average weekly wage times 100 percent,
which is consistent with a permanent partial disability award under Section
8(c)(23).  The administrative law judge thus had a basis for restating the
agreement to find claimant permanently partially disabled and to award benefits
accordingly.[1]  Notwithstanding this award, however, he applied the standards under
Section 8(f) for permanent total disability, requiring evidence as to claimant's employability. 
     The standards for the applicability of Section 8(f) differ depending on whether claimant is permanently
totally or permanently partially disabled.  To avail itself of Section 8(f) relief where an employee is totally
disabled, 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; and 3) that the total disability is not
due solely to the work injury. Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 28 BRBS 7(CRT) (2d
Cir. 1993); Two "R" Drilling Co. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34(CRT) (5th Cir.
1990).  If the claimant is partially disabled, the employer must establish the pre-existing permanent partial
disability and manifest elements, and additionally must establish that the current disability is not due solely to
the subsequent injury and is materially and substantially greater than 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 (CRT)(1995). 
     The Director conceded below that claimant's coronary artery disease constituted a pre-existing permanent
partial disability.  Thus, the first element for Section 8(f) relief is satisfied. See Wiggins v. Newport News
Shipbuilding & Dry Dock Co., 31 BRBS 142 (1997).  With regard to the manifest element, the United States
Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, does not apply the manifest
requirement in post-retirement occupational disease cases. Newport News Shipbuilding & Dry Dock Co. v.
Harris,  934 F.2d 548, 24 BRBS 190(CRT) (4th Cir. 1991).  As it is clear from the parties' stipulations
that claimant's occupational disease was diagnosed subsequent to his retirement, under Harris employer
is not required to prove this element. Thus, employer's entitlement to Section 8(f) relief turns on whether it has
satisfied the contribution element.
     As set forth above, the contribution element differs in partial and total disability cases.  In this case, the
administrative law judge addressed it as if claimant were totally disabled, notwithstanding his entry of an award
of partial disability benefits.  He found that employer's evidence is insufficient to establish that claimant's
asbestosis alone would not have rendered claimant unable to participate in gainful employment.  Specifically, the
administrative law judge found that neither Dr. Tornberg nor Dr. Donlan addressed the issue of whether claimant
could perform any work if he did not have coronary artery disease, nor did Dr. Donlan state whether claimant
could work with only the 90 percent impairment due to the asbestosis.  The administrative law judge also noted
the absence of vocational evidence addressing claimant's employability.  Thus, he denied employer Section 8(f)
relief. 
     If, on remand, it is determined, by stipulation or otherwise, that claimant is entitled to permanent total
disability benefits pursuant to Section 8(a), we affirm the administrative law judge's denial of Section 8(f)
relief.  In order to establish the contribution element in a permanent total disability case, employer must
demonstrate with medical evidence or otherwise, that claimant's disability is not due solely to the work injury.
Pennsylvania Tidewater Dock Co. v. Director, OWCP [Lewis], 202 F.3d 656 (3d Cir. 2000);
Director, OWCP v. Luccitelli, 964 F.2d 1303, 26 BRBS 1(CRT) (2d Cir. 1992).  It is insufficient
merely to show that the pre-existing condition worsened the claimant's overall disability. Director, OWCP
v. Jaffe New York Decorating, 25 F.3d 1080, 28 BRBS 30(CRT) (D.C. Cir. 1994); Director, OWCP v.
General Dynamics Corp. [Bergeron], 982 F.2d 790, 26 BRBS 139(CRT) (2d Cir. 1992).  The
administrative law judge correctly found that employer offered no evidence demonstrating that claimant's total
economic disability was due in part to his pre-existing coronary artery disease, and thus Section 8(f) relief was
properly denied on this basis.  See generally Two "R" Drilling Co., 894 F.2d 748, 23 BRBS 34(CRT).
     If, however, claimant is entitled to permanent partial disability benefits pursuant to Section 8(c)(23), the
administrative law judge must reconsider employer's entitlement to Section 8(f) relief.  As the compensable
disability in a case compensated pursuant to Section 8(c)(23) consists only of permanent physical impairment,
claimant's employability is irrelevant, and the administrative law judge must consider whether the asbestosis
alone caused claimant's compensable pulmonary impairment and whether the coronary artery disease
materially and substantially contributed to claimant's compensable impairment. See Director, OWCP v.
Bath Iron Works Corp. [Johnson], 129 F.3d 45, 31 BRBS 155(CRT) (1st Cir. 1997); Beckner v.
Newport New Shipbuilding & Dry Dock Co., 34 BRBS 181 (2000).  
     Dr. Tornberg's opinion is legally insufficient to establish the contribution element, pursuant to the law
of the Fourth Circuit, as he does not state the degree of impairment claimant would have from the asbestosis
alone.  Rather, he states that claimant's disability would be "at least 10% less, and probably more . . ." if not
for his coronary artery disease.   EX 2b.  The Fourth Circuit in Carmines specifically held that simply
subtracting the extent of disability that resulted from the pre-existing disability from the extent of the current
disability is insufficient to establish that the claimant's disability is materially and substantially greater than
that due to the subsequent injury alone. Carmines, 138 F.3d at 143, 32 BRBS at 55(CRT);
see also Newport News Shipbuilding & Dry Dock Co. v. Pounders, 326 F.3d 455 (4th Cir. 2003);
Newport News Shipbuilding & Dry Dock Co. v. Winn, 326 F.3d 427 (4th Cir. 2003).  The
administrative law judge must re-evaluate Dr. Donlan's opinion, however, in order to determine if it is
sufficient to establish that claimant's current pulmonary condition is not due solely to asbestosis and is
materially and substantially worse due to coronary artery disease than it would be due to asbestosis alone.  Dr.
Donlan examined claimant and reviewed the results of pulmonary function studies.  Dr. Donlan opined that 90
percent of claimant's disability is secondary to asbestosis and 10 percent is due to coronary disease.   EX 3. 
On remand, the administrative law judge must consider the sufficiency of this opinion in light of relevant law
if he redetermines that claimant is permanently partially disabled. See Pounders, 326 F.3d 455;
Newport News Shipbuilding & Dry Dock Co. v. Cherry, 326 F.3d 449 (4th Cir. 2003);  Newport
News Shipbuilding & Dry Dock Co. v. Ward, 326 F.3d 434 (4th Cir. 2003); Winn, 326 F.3d 427;
Carmines, 138 F.3d 134, 32 BRBS 48(CRT).     Accordingly, the administrative law judge Decision and Order is vacated, and the case is remanded for
further consideration consistent with this decision. On remand, the  consideration of Section 8(f) relief must be
based on the type of benefits awarded to claimant. 
     SO ORDERED.

                                                                 
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                
                         REGINA C. McGRANERY
                         Administrative Appeals Judge
     

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Footnotes.


1)In this case, the amount of benefits to which claimant is entitled is the same whether he receives permanent partial disability benefits for a 100 percent impairment, pursuant to Section 8(c)(23), or for permanent total disability, pursuant to Section 8(a), since the parties correctly stipulated that claimant's average weekly wage is his earnings from the 52 weeks preceding his retirement. See 33 U.S.C. §910(d)(2)(A); Donnell v. Bath Iron Works Corp., 22 BRBS 136 (1989). However, a claimant who is permanently totally disabled is entitled to annual increases in compensation under Section 10(f), 33 U.S.C. §910(f). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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