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                                 BRB No. 99-0638

GEORGE T. BRASWELL                      )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   03/09/2000

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 to the
     Employer of Richard K. Malamphy, Administrative Law Judge, United States
     Department of Labor.

          Christopher A. Taggi (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

          Kristin Dadey (Henry L. Solano, Solicitor of Labor; Carol A. 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: SMITH and BROWN, Administrative Appeals Judges, and NELSON, 
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order Denying Section 8(f) Relief to the
Employer (1998-LHC-728) of Administrative Law Judge Richard K. Malamphy 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 machinist, and employer stipulated that claimant was exposed to
asbestos during the course of his employment with employer.  Following his
retirement, claimant was diagnosed with asbestosis, and the parties agree that he
has a 15 percent permanent partial disability.  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. See Decision and Order at 2-4.  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., hypertensive cardiovascular
disease and fibrillation, but that employer failed to establish 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 claimant 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 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, 514 U.S. 122, 29 BRBS 87 (CRT)(1995).  In a case involving a post-retirement occupational
disease arising within the jurisdiction of the Fourth Circuit, an employer need not establish that a claimant's pre-existing
disability was manifest. See Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548, 24 BRBS
190 (CRT)(4th Cir. 1991).

     In order to satisfy the contribution element, an employer must show by medical or other evidence that the ultimate
permanent partial disability is materially and substantially greater than that which would have resulted from the work-
related injury alone.  We affirm the administrative law judge's conclusion that this standard is not met in this case. 
Pursuant to the decisions of the United States Court of Appeals for the Fourth
Circuit, within whose jurisdiction this case arises, an employer may show that a
preexisting disability renders a claimant's overall disability materially and
substantially greater by quantifying the disability that ensues from the work
injury alone and comparing it to the preexisting disability. Harcum I, 8
F.3d at 185-186, 27 BRBS at 130-131 (CRT); see also Carmines, 138 F.3d at
143-144, 32 BRBS at 55 (CRT); Harcum II, 131 F.3d at 1082-1083, 31 BRBS at
166-167 (CRT); Director, OWCP v. Bath Iron Works Corp. [Johnson], 129 F.3d
45, 31 BRBS 155 (CRT) (1st Cir. 1997); Farrell v. Norfolk Shipbuilding & Dry
Dock Corp., 32 BRBS 118, vacated in part on other grounds on recon., 32
BRBS 283 (1998); Quan v. Marine Power & Equipment, 31 BRBS 178 (1997),
aff'd sub nom. Marine Power & Equip. v. Dept. of Labor,       F.3d     ,
2000 WL 95994 (9th Cir. Jan. 31, 2000).

     Employer argues on appeal that the administrative law judge erred in determining that
the medical opinion of Dr. Reid, as supported by Drs. Dolan and Foreman, is
insufficient to meet employer's burden to establish the contribution element. Dr.
Reid, employer's in-house physician, opined that if claimant merely had asbestosis,
and not hypertensive  cardiovascular disease, claimant's AMA rating would be at
least ten percent less; in support of this conclusion, Dr. Reid cited to an article
in Chest magazine. See EX  1B.  In support of Dr. Reid's opinion,
employer additionally submitted into evidence letters from Drs. Donlan and Foreman;
in each of these letters, the aforementioned physicians "check-marked" a box
indicating that they were in agreement with Dr. Reid's conclusion. See EXS
3, 4.  

     In considering Dr. Reid's opinion, the administrative law judge found that
this physician failed to supply any reliable evidence to support his calculation
of claimant's disability; specifically, the administrative law judge found that Dr. Reid
had only taken a generalized  study and applied it to claimant.  Pursuant to these
findings, the administrative law judge concluded that Dr. Reid's opinion was conclusory
and somewhat speculative and was, therefore, insufficient to establish the
contribution element necessary for Section 8(f) relief to be granted. See
Decision and Order at 7-9.  Moreover, the administrative law judge gave no weight to the
form letters of Drs. Donlan and Foreman, finding that these letters failed to
explain their respective reasons for agreeing with Dr. Reid's opinion.[1]   Id.  at 8.

     Contrary to employer's argument, 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 did not adequately
document the reasoning for his conclusions, 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. at 1321. 
Consequently, the administrative law judge's determination that employer failed to
establish that claimant's ultimate permanent partial disability is materially and
substantially a greater is affirmed. See Carmines, 138 F.3d at 134,
32 BRBS at 48 (CRT); Harcum II, 131 F.3d at 1079, 31 BRBS at 164 (CRT);
Harcum I, 8 F.3d at 175, 27 BRBS at 116 (CRT).  We, therefore, affirm
the administrative law judge's denial of Section 8(f) relief to employer.[2]        

     Accordingly, the administrative law judge's Decision and Order is affirmed.

     SO ORDERED.




                                                                                                      
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                                                      
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                                                      
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge found a prior letter authored by Dr. Foreman to be more credible on this issue. Specifically, on October 30, 1997, Dr. Foreman, after examining claimant, opined that claimant's impairment was due entirely to his asbestos-related disease. See DX 1. Back to Text
2)We agree with the Director that, alternatively, the administrative law judge's decision may be affirmed since 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 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. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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