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                                     BRB No. 02-0732

AVERY THOMAS                     )
                                       )
             Claimant                 )
                                       )
        v.                            )
                                      )
NEWPORT NEWS SHIPBUILDING        )    DATE ISSUED:   06/26/2003
2003
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 of Fletcher E. Campbell, Jr., Administrative Law Judge, United
        States Department of Labor.

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

        Peter B. Silvain, Jr. (Howard Radzely, Acting Solicitor of Labor;
        Donald S. Shire, Associate Solicitor; Mark Flynn, Acting Counsel
        for Longshore), Washington, D.C., for the Director, Office of
        Workers' Compensation Programs, United States Department of Labor.

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

        PER CURIAM:
        Employer appeals the Decision and Order (01-LHC-1910) 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 worked for employer from 1956 to 1999 as a pipefitter.  During the course of his employment
he was exposed to airborne asbestos dust and fibers.  On March 15, 1999, subsequent to his retirement, claimant
was diagnosed as having asbestosis.  Employer and claimant stipulated that claimant sustained a 10 percent
permanent impairment due to asbestosis, for which claimant is entitled to compensation and medical benefits under
the Act.  33 U.S.C. §§907, 908(c)(23).  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). The administrative law judge found that claimant was diagnosed with hypertensive
cardiovascular disease in October 1997, but that employer failed to establish that this condition contributed to
claimant's current permanent partial disability due to work-related asbestosis.  The administrative law judge
therefore denied employer's claim for Section 8(f) relief.
        On appeal, employer challenges the administrative law judge's denial of Section 8(f) relief.  The Director,
Office of Workers' Compensation Programs, responds, urging affirmance.  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; and 3) that the ultimate permanent partial disability is not due solely
to the work injury and is materially and substantially greater than the disability that would have resulted from the
work-related injury alone.[1]   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); see also 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).
        We affirm the administrative law judge's finding that employer failed
to establish that claimant's pre-existing hypertensive cardiovascular
disease contributed to claimant's current pulmonary impairment.[2]   To establish such contribution, the United States Court of Appeals
for the Fourth Circuit held in Carmines that an employer must
quantify the type and extent of the disability that the claimant would have
suffered without the pre-existing condition. Carmines, 138 F.3d at
139, 32 BRBS at 53(CRT).  The court 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. Id., 138 F.3d
at 143, 32 BRBS at 55(CRT).  Dr. Tornberg opined that claimant's
hypertensive cardiovascular disease materially and substantially contributed
to his present impairment and that, if claimant had only asbestosis, his
rating under the American Medical Association Guides to the Evaluation
of Permanent Impairment would be at least fourteen percent less.  EX 2
at 4.  Dr. Donlan stated only that asbestosis is a contributing factor to
claimant's pulmonary impairment. EX 2 at 22.  The administrative law judge
properly found these opinions legally insufficient to establish that
claimant's disability is not due solely to his asbestosis and that
hypertension materially and substantially contributed to his current
pulmonary disability, as neither quantifies the degree of impairment due
solely to the subsequent injury. See 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).  In
the absence of any other evidence of record addressing the contribution of
claimant's pre-existing permanent disability to claimant's current ten
percent pulmonary impairment, we hold that the administrative law judge
properly concluded that employer failed to establish the contribution
element necessary for Section 8(f) relief. 
        Accordingly, the administrative law judge's Decision and Order is affirmed.
        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)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, such as the instant case. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548, 24 BRBS 190(CRT) (4th Cir. 1991). Back to Text
2)The administrative law judge stated he need not determine if claimant's hypertensive cardiovascular disease constitutes a pre-existing permanent partial disability pursuant to Section 8(f) since he found that the contribution element was not satisfied. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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