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                                   BRB No. 98-1128
                       
THEODORE FAULK                          )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
NORFOLK SHIPBUILDING AND                )    DATE ISSUED:   05/17/1999 

DRYDOCK CORPORATION                     )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )
                                        )    
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
DIRECTOR, OFFICE OF  WORKERS'           )
COMPENSATION  PROGRAMS,                 )
UNITED  STATES  DEPARTMENT              )
OF  LABOR                               )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative
     Law Judge, United States Department of Labor.

     Gary R. West (Patten, Wornom & Watkins, L.C.), Newport News, Virginia,
     for claimant.

     Gerard E.W. Voyer and Donna White Kearney (Taylor & Walker, P.C.),
     Norfolk, Virginia, for Norfolk Shipbuilding and Drydock Corporation.

     Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for Newport News Shipbuilding
     and Dry Dock Company.

     LuAnn B. Kressley (Henry L. Solano, Solicitor of Labor; Carol DeDeo,
     Associate Solicitor), 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:

     Norfolk Shipbuilding and Drydock Corporation (Norfolk) appeals the Decision
and Order (97-LHC-1216, 97-LHC-1496) of Administrative Law Judge Daniel A. Sarno,
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 if they 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 worked for Newport News Shipbuilding and Dry Dock Company (Newport
News) from 1973 until 1978, and he was exposed to asbestos during this employment. 
Claimant then worked for Norfolk  from 1978 until 1996 as a shipfitter.  On
November 27, 1996, Dr. Wilson diagnosed claimant with peritoneal mesothelioma, and
the parties stipulated that the condition was caused, at least in part, by asbestos
exposure.  The parties further stipulated that claimant is permanently totally
disabled due to the mesothelioma.  Claimant filed claims for compensation
against both employers.  By order dated April 30, 1997, the administrative law
judge, agreeing that the cases against both employers involved the same
operative facts and issues, entered an Order of Consolidation and Expedited
Hearing.  

     In his Decision and Order, the administrative law judge found that
because claimant's last period of injurious exposure to asbestos occurred
during the course of his employment with Norfolk in 1996, Norfolk is the
responsible employer under the Act.  The administrative law judge awarded
claimant permanent total disability benefits of $426.72 per week from
November 29, 1996, to the present and continuing, and medical benefits under
Section 7 of the Act, 33 U.S.C. §907.  The administrative law judge
also awarded claimant interest.  The administrative law judge further found
that Norfolk is entitled to a credit for all third-party settlements entered
into by claimant to date.  Finally, the administrative law judge found that
Norfolk failed to establish that claimant had a pre-existing permanent
partial disability that contributed to claimant's total disability as
required by Section 8(f) of the Act, 33 U.S.C. §908(f); therefore he
denied Norfolk relief from the Special Fund.

     On appeal, Norfolk challenges the administrative law judge's finding
that it is the responsible employer and that it is not entitled to Section
8(f) relief.  Newport News responds, urging affirmance of the administrative
law judge's finding that Norfolk is the responsible employer based on
application of the last employer rule.  The Director, Office of Workers'
Compensation Programs (Director), has responded, confining its brief to the Section
8(f) issue.  Claimant also has filed a response brief, urging that the
administrative law judge's responsible employer finding be affirmed. 

     After consideration of the evidence, we affirm the administrative law judge's
responsible employer determination, because his finding that claimant was last
exposed to injurious stimuli while employed with Norfolk and that it is thus the
responsible employer under the Act is supported by substantial evidence and in
accordance with law. See O'Keeffe, 380 U.S. at 359.  The standard for
determining the responsible employer or carrier was enunciated in Travelers
Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350
U.S. 913 (1955).  Pursuant to Cardillo, the last employer or carrier to
expose the employee to injurious stimuli prior to his awareness of his occupational
disease is liable for any compensation owed under the Act. Accord Todd Shipyards
Corp. v. Black, 717 F.2d 1280, 16 BRBS 13 (CRT)(9th Cir. 1983), cert.
denied, 466 U.S. 937 (1984); see also Argonaut Insurance Co. v.
Patterson, 846 F.2d 715, 21 BRBS 51 (CRT)(11th Cir. 1988).  A distinct
aggravation of an injury need not occur for an employer to be held liable as the
responsible employer; exposure to potentially injurious stimuli is all that is
required under the Cardillo standard.  See Lustig v. Todd Shipyards
Corp., 20 BRBS 207 (1988), aff'd in pert. part and rev'd in part sub nom.
Lustig v. U.S. Depart. of Labor, 881 F.2d 593, 22 BRBS 159 (CRT)(9th Cir.
1989).

     In the present case, the administrative law judge concluded that claimant was
last exposed to injurious stimuli while working for Norfolk.  In so finding, the
administrative law judge found claimant to be a very credible witness, noting that
claimant was candid about his lack of expertise in identifying asbestos and only
alleged exposure to asbestos when he was certain of it.  Claimant testified that,
while he believed he may have worked on many ships exposing him to asbestos at
Norfolk,[1]   he could recall only one incident of
confirmed exposure to asbestos, which occurred aboard the USS FLINT, when pipe
insulation ruptured in a particular compartment where he worked; claimant testified
he entered this area twice following the rupture to pick up and return tools. Tr.
at 64; NNS Ex. 1 at 35-40.  Claimant stated that he wore a respirator on the day 
he learned of the presence of asbestos, but had not been wearing a respirator at
the time the rupture occurred. Tr. at 68.  The administrative law judge further
reasoned that the credible testimony of Mr. Harrington, an industrial hygienist at
Newport News, generally buttresses claimant's testimony that he may have been
exposed to asbestos at other times while performing repair work at Norfolk on
various Navy ships.  According to Mr. Harrington, based on the Naval Ship's
Technical Manual, §635-10.8 (1st  rev. May 15, 1986), ships built prior to
1971 used asbestos for thermal insulation. Tr. at 93, 96-97;  NNS Ex. 4.  Mr.
Harrington confirmed that two of the ships on which claimant worked at Norfolk were
built before 1971.

     The evaluation of this evidence was within the administrative law judge's
authority.  As the fact finder, the administrative law judge was entitled to
conclude that claimant was a credible witness. See Jones Stevedoring Co. v.
Director, OWCP [Taylor], 133 F.3d 683, 31 BRBS 178 (CRT) (9th Cir. 1997).
See also Avondale Industries, Inc. v. Director, OWCP, 977 F.2d 186,  26 BRBS
115 (CRT)(5th Cir. 1992).  As the administrative law judge rationally credited
claimant's testimony and found it supported by other credible evidence, his
conclusion that claimant was exposed to asbestos during his employment at Norfolk
is supported by substantial evidence.

     We reject Norfolk's assertion that Port of Portland v. Director, OWCP, 932 F.2d 836, 24 BRBS 137
(CRT)(9th Cir. 1991), and Todd Pacific Shipyards Corp. v. Director, OWCP [Picinich],
914 F.2d 1317, 24 BRBS 36 (CRT)(9th Cir. 1990), require a showing that claimant's exposure to
asbestos actually contributed to or aggravated his occupational disease.  The court  in Port of Portland
specifically rejected this contention, stating, "[w]e agree with the Board that Cordero [v. Triple A
Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied,
440 U.S. 911 (1979),] does not require a demonstrated medical causal relationship between claimant's exposure
and his occupational disease." Port of Portland, 932 F.2d at 840, 24 BRBS at 143 (CRT).   The United
States Court of Appeals for the Fifth Circuit has held as well that regardless of
the brevity of the exposure, if it has the potential to cause disease, it is
considered injurious.  Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008,
1012, 12 BRBS 975, 978 (5th Cir.), cert. denied, 454 U.S. 1080 (1981),
cited in Avondale Industries, 977 F.2d at 190, 26 BRBS at 113 (CRT); see
also Lustig, 881 F.2d at 593, 22 BRBS at 159 (CRT).

     In Susoeff v. The San Francisco Stevedoring Co., 19 BRBS 149 (1986),
the Board addressed employer's burden of proof regarding causation and the
determination of the responsible employer.  The Board held that once an employee
has established that he was exposed to injurious stimuli while engaged in covered
employment, that employer could escape liability by showing that the employee's
injury is not work-related or by establishing that he was exposed to injurious
stimuli while performing work covered under the Act for a subsequent employer.
Id. at 151. Accord Avondale Industries, 977 F.2d at 186, 26 BRBS at
111 (CRT); General Ship Service v. Director, OWCP, 938 F.2d 960, 25 BRBS 22
(CRT)(9th Cir. 1991). See also Lins v. Ingalls Shipbuilding, Inc., 26 BRBS
62 (1992).  Norfolk has not provided any evidence that claimant's injury is not
work-related or that claimant was engaged in subsequent covered employment. 
Moreover, Picinich does not aid Norfolk, as in that case the employer
produced evidence that exposure was below levels considered injurious.  Norfolk has
not produced such evidence here, and it bears the burden of proving it is not the
responsible employer.  Accordingly, we affirm the administrative law judge's
finding that Norfolk is the responsible employer.

     Norfolk next challenges the administrative law judge's denial of Section 8(f)
relief.  The administrative law judge denied Norfolk's request for relief pursuant
to Section 8(f), finding that it failed to establish the contribution and pre-existing permanent partial disability elements necessary for such relief to be
granted.  The Director has responded, seeking affirmance of the administrative law
judge's denial of Section 8(f) relief.

     Section 8(f) shifts liability to pay compensation for permanent disability or death after 104 weeks from an
employer to the Special Fund established in Section 44 of the Act.  33 U.S.C. §§908(f), 944.  An employer
may be granted Special Fund relief, in a case where a claimant is permanently totally disabled, if it establishes that the
claimant had a manifest pre-existing permanent partial disability, and that his current permanent total disability is not
due solely to the subsequent work injury. See 33 U.S.C. §908(f)(1); Director, OWCP v.
Luccitelli, 964 F.2d 1303, 26 BRBS 1 (CRT)(2d Cir. 1992); Two "R" Drilling Co. v. Director,
OWCP, 894 F.2d 748, 23 BRBS 34 (CRT)(5th Cir. 1990); John T. Clark & Son of Maryland  v.  BRB,
622 F.2d 93, 12 BRBS 229 (4th Cir. 1980).  Thus, where an employee is permanently totally disabled, an employer must
demonstrate that the total disability is caused by both the work injury and the pre-existing condition in order to receive
Section 8(f) relief. See Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28 BRBS
30 (CRT)(D.C. Cir. 1994); Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996).  

     In order to establish a pre-existing permanent partial disability  "[t]here must exist, as a result of [an] injury, some
serious, lasting physical problem." Director, OWCP v. Belcher Erectors, 770 F.2d 1220, 1222, 17 BRBS
146, 149 (CRT)(D.C. Cir. 1985); C & P Telephone Co. v. Director, OWCP, 564 F.2d 503, 6 BRBS 399
(D.C. Cir. 1977).  The only evidence of record to support employer's allegation is a
September 30, 1996 chest x-ray, read by Dr. Carr,  showing "[s]ome linear
atelectasis or scarring."  NSC Ex. 8(c).  Although the administrative law judge
gave the opinion of Dr. Schwartz that x-ray evidence of lung scarring did not
contribute in any way to claimant's level of impairment compelling weight, this
opinion is relevant to the contribution element of Section 8(f), rather than to the
existence of a pre-existing disability.  The administrative law judge, however,
also found that Dr. Reid, the Newport News clinic physician, whose opinion Norfolk
maintains establishes a pre-existing serious condition, failed to reconcile Dr.
Carr's opinion that the noted scarring represented  "no acute cardiopulmonary
abnormality," NSC Ex. 8(c), with his statement that the x-ray demonstrated a
permanent and serious pre-existing condition.  NSC Ex. 8(d).  The administrative
law judge also noted that there was no evidence that Dr. Reid was Board-eligible
in pulmonary medicine.  The administrative law judge thus essentially discredited
Dr. Reid's opinion based on his lack of expertise and because the administrative
law judge did not find it well-reasoned.  Accordingly, we affirm the administrative
law judge's finding that Norfolk failed to establish that claimant had a pre-existing permanent partial disability.

     Norfolk next argues that the administrative law judge erred in applying the
Luccitelli rule to find that mesothelioma alone caused claimant's permanent
total disability, as mesothelioma is a fatal disease which always results in
disability and death, thus undermining the Congressional intent of Section 8(f). 
We reject Norfolk's assertion, as the statute requires that the ultimate disability not be solely due to the last injury, and
we affirm the administrative law judge's determination that Norfolk has failed to
show that claimant's mesothelioma alone would not have caused permanent total
disability. "Where a subsequent injury and its effects are alone sufficient to
cause permanent total disability the mere presence of a pre-existing disability
will not warrant contribution from the special fund." Director, OWCP v. Newport
News Shipbuilding & Dry Dock Co.  [Carmines], 138 F.3d 134, 143, 32 BRBS 48,
55 (CRT) (4th Cir. 1998), citing John T. Clark & Son of Maryland, Inc. v.
BRB, 621 F.2d 93, 95 & n.2 (4th Cir. 1980).  Contrary to Norfolk's contention, it was within
the administrative law judge's discretion to give the opinion of Dr. Reid that claimant's lung scarring
materially and substantially contributed to his condition little, if any, weight
both because Dr. Reid is not pulmonary specialist and as he appears to characterize
claimant's mesothelioma as being in his lungs rather than his abdomen, whereas
virtually all other physicians found abdominal mesothelioma with no pleural
involvement.[2]  Thus, as the administrative law
judge's determination that employer failed to establish the contribution element
necessary for Section 8(f) relief is supported by the record, we affirm that
finding and consequently his denial of Section 8(f) relief in this case.[3]   See generally Cordero, 580 F.2d at 1331,
8 BRBS at 744.

     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

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Footnotes.


1)Claimant recalled working on other U.S. Navy ships which may have exposed him to asbestos. Claimant's work involved chipping and tearing out tile flooring, which he later learned could have contained asbestos. He also worked around other employees tearing out insulation and later learned it may have contained asbestos. Back to Text
2)Dr. Reid's opinion is, in any case, relevant to the standard for establishing entitlement to Section 8(f) relief in the case of permanent partial, rather than permanent total, disability. See Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Carmines], 138 F.3d 134, 32 BRBS 48 (CRT) (4th Cir. 1998). Moreover, as Director notes, contrary to Norfolk's assertion, in Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum II], 131 F.3d 1079, 31 BRBS 164 (CRT) (4th Cir. 1997), the Fourth Circuit did not preclude the application of the "but for" test; rather it concluded that it was not applicable in cases of permanent partial disability. Back to Text
3)Norfolk's contention that the administrative law judge erred in applying the "but for" test in this case is not dispositive. Norfolk is referring to the test devised by some circuits which requires that an employer prove entitlement to Section 8(f) relief by showing that "but for" the pre-existing disability, the claimant would be employable. See Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28 BRBS 30 (CRT)(D.C. Cir. 1994); CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT) (1st Cir. 1991). As employer states, the Courts of Appeals have phrased employer's burden of proof using either "not due solely" terminology or "but for" terminology. In Dominey, the Board held that the "but for" test is merely a variation of the standard used by Courts of Appeals having the same implications; a claimant's total disability must have been caused by both the work injury and pre-existing condition. 30 BRBS at 137. In this case, the administrative law judge, after weighing the medical evidence of record, reasonably relied on the medical opinions that claimant was permanently totally disabled due to his asbestos-related mesothelioma alone. His finding that claimant's mesothelioma is alone permanently totally disabling is supported by substantial evidence, and therefore under either test, employer has not proven entitlement to Section 8(f) relief. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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