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                                 BRB No. 98-1245

THOMAS M. GREENLAW                      )
                                        )
          Claimant                      )
                                        )
      v.                                )
                                        )
NATIONWIDE BUILDING                     )    DATE ISSUED:   05/27/1999
1999 
MAINTENANCE, INCORPORATED               )
                                        )
     and                                )
                                        )
WAUSAU INSURANCE COMPANIES              )
                                        )
          Employer/Carrier-             )
          Respondents                   )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Petitioner                    )     DECISION and ORDER

     Appeal of the Decision and Order On Remand and Order Denying Motion For
     Reconsideration of James Guill, Associate Chief Administrative Law
     Judge, United States Department of Labor.

     Douglas L. Brown (Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves,
     L.L.C.), Mobile, Alabama, for employer/carrier.

     Laura Stomski (Henry L. Solano, Solicitor of Labor; Carol A. De Deo,
     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:

     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order On Remand and Order Denying Motion For Reconsideration (94-LHC-969) of Associate Chief Administrative Law Judge James Guill 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). 

     This case is before the Board for the second time.  Claimant, who had a pre-existing left eye condition (pterygia), sustained a work-related injury on October
21, 1988, when a cable holding cargo broke and hit claimant in the face, resulting
in a depression fracture of the skull, profound memory deficit, a seizure disorder,
and a right eye impairment.  Following this incident, employer voluntarily paid
claimant permanent total disability benefits.  33 U.S.C. §908(a).  Thereafter,
employer sought relief pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f). 
In his original Decision and Order, the administrative law judge, based on his
finding that employer satisfied its burden of establishing that the manifest pre-existing condition rendered claimant's visual disability materially and
substantially greater than it would have been from the October 1988 injury alone,
granted employer's request for Section 8(f) relief.  

     The Director appealed the administrative law judge's award of Section 8(f)
relief.  The Board vacated the award, holding that the administrative law judge erred in
focusing on whether claimant's visual disability was materially and substantially
greater than that which would have resulted from the work injury alone.  The Board
remanded the case for the administrative law judge to determine whether employer satisfied
the contribution element of Section 8(f) by establishing that claimant's overall
total disability is not due solely to the work injury. Greenlaw v.  Nationwide
Building Maintenance, Inc., BRB No.  96-0578 (Jan. 16, 1997).

     In his Decision and Order on Remand, the administrative law judge credited the newly
submitted report of Dr. Beneke that claimant would have been employable subsequent 
to the work injury from an ophthalmologic standpoint if his eyesight had not been
impaired by the pre-existing condition.  The administrative law judge stated that the
medical evidence establishes that while the work injury was severe, it would not
have resulted in total disability in an otherwise unimpaired individual.  The
administrative law judge thus found that employer satisfied the contribution element and
he awarded employer Section 8(f) relief. 

     The Director filed a motion for reconsideration, contending that the
administrative law judge neglected to consider whether claimant's head injuries were so
severe so as to totally disable claimant irrespective of his pre-existing eye
condition.  The administrative law judge denied the motion, finding that "solely from a
standpoint of visual impairment," claimant's work injury would not have rendered
him totally disabled.  Order on Recon. at 2.  The administrative law judge noted that
although Drs. Bowden and Beneke restricted their opinions to claimant's level of
visual impairment, Dr.  Bogg's opinion is similarly flawed in that his opinion is
restricted to claimant's neurological impairment to the exclusion of any visual
disability. 

     The Director appeals the administrative law judge's award of relief pursuant to
Section 8(f), again contending that the contribution element is not satisfied. 
Employer responds, urging affirmance.

     Section 8(f) shifts liability to pay compensation for permanent total
disability  from the employer to the Special Fund established in Section 44 of the
Act, 33 U.S.C. §944, after 104 weeks, if the employer establishes the
following three prerequisites:  1) the injured employee has a pre-existing
permanent partial disability; 2) the pre-existing disability was manifest to
employer; and 3) claimant's permanent disability is not solely due to the
subsequent work injury. Ceres Marine Terminal v. Director OWCP, 118 F.3d 387, 31 BRBS 91
(CRT) (5th Cir. 1997); Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28 BRBS 30 (CRT)
(D.C. Cir. 1994); Director, OWCP v. Luccitelli, 964 F.2d 1303, 26 BRBS 1
(CRT)(2d Cir. 1992); Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996); 33
U.S.C. §908(f)(1).  In this case, it is undisputed that employer established the
existence of a manifest, pre-existing permanent partial disability.  The Director
contends, however, that the administrative law judge erred in again concluding that
employer satisfied the contribution element by establishing that claimant's visual
impairment is not due solely to the work injury.

     Dr.  Bowden, an ophthalmologist, stated on September 11, 1991, that claimant's
physical disability is due to a combination of the work injury which resulted in
a profound visual loss in the right eye and the pre-existing corneal scarring and
distortion in the left eye.  Dr. Beneke, also an ophthalmologist, stated on June
23, 1997, that claimant's pre-existing left eye impairment will limit claimant's
employment opportunities; specifically, Dr.  Beneke stated that claimant will not
be able to work in an outdoor environment due to glare, and will not be able to
operate a commercial vehicle or heavy machinery.

     The administrative law judge noted that these physicians addressed only claimant's
visual impairments, but found the opinion of Dr.  Boggs similarly problematic in
that he addressed only the neurological component of claimant's impairment.  On
June 20, 1990, Dr.  Boggs stated that claimant has a 60 percent whole man
impairment due to the head injury.  He stated that claimant has brain damage with
encephalomalacia that results in profound and severe memory deficit which nearly
precludes the capability of learning new material.  He noted that claimant also has
a seizure disorder that has been difficult to control.  Dr.  Boggs felt claimant
to be unemployable at that time.  While not discrediting Dr.  Boggs' opinion, the
administrative law judge nevertheless stated that Dr.  Boggs did not address the fact that
"many jobs potentially available to Claimant would not require him to learn a
substantial amount of new information," Order on Recon.  at 2, and thus he gave
greater weight to the opinions of the ophthalmologists that claimant's visual
impairment is not due solely to claimant's work-related injury.  The administrative law
judge found that claimant's visual impairment, due to both the pre-existing
condition and the work injury, "appears to be the prime factor restricting
[claimant's] employment prospects rather than his diminished memory capacity."
Id.

     We agree with the Director that the evidence of record is legally insufficient
to establish that claimant's total disability is not due solely to the work injury. 
As the Board stated in its prior decision, the proper inquiry is whether claimant's
pre-existing impairment contributed to claimant's overall disability and not merely
to his visual impairment.  The opinions of  Dr. Bowden and Dr. Beneke address only
claimant's visual impairment. While these opinions establish that claimant's pre-existing left eye impairment either increased the level of his overall physical
disability or would further limit his employability, based on his visual problems,
they  do not take into account the other results of the head injury claimant
sustained, namely his seizure disorder and profound memory deficit.[1]    Specifically, these opinions do not state that
the work injury alone, in its totality, did not result in claimant's total
disability. See FMC Corp. v. Director, OWCP, 886 F.2d 1185, 23 BRBS 1 (CRT) (9th Cir. 1989);
see also Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 28 BRBS 7 (CRT) (2d
Cir. 1993).  Moreover, although under appropriate circumstances the administrative law judge may infer that a claimant's
total disability is not due to the work injury alone, see, e.g., Ceres Marine Terminal, 118 F.3d at 391, 31
BRBS at 94 (CRT), the administrative law judge's inference here that claimant's visual impairment is the prime factor
inhibiting his employability rather than his memory deficit (or his seizures, which the administrative law judge did
not address)  is not supportable in view of  the  severity of  the  injuries
claimant suffered and in view of the limited nature of the doctors' opinions.[2]   See generally Jaffe New York Decorating,
25 F.3d at 1080, 28 BRBS at 30 (CRT).  Employer, therefore, failed to meet its
burden of producing evidence to establish that claimant's total disability is not
due to the work injury alone.  Consequently, the administrative law judge's award
of relief pursuant to Section 8(f) must be reversed.

     Accordingly, the administrative law judge's Decision and Order on Remand and the
Order Denying Motion for Reconsideration granting employer Section 8(f) relief is
reversed.
     
     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) 1In its prior decision, the Board agreed with the Director that the administrative law judge erred in crediting Dr. Bowden's opinion as he addressed only the impairment to claimant's eyes. Greenlaw, slip op. at 3. Dr. Beneke's opinion, submitted by employer on remand, suffers from the same deficiency. Back to Text
2) 2In Ceres Marine Terminal, the United States Court of Appeals for the Fifth Circuit stated that if the record does not contain explicit evidence that claimant's total disability is not due solely to the second injury, the administrative law judge may infer such a result based on factors such as "the perceived severity of the pre-existing disabilities and the current employment injury, as well as the strength of the relationship between them." 118 F.3d at 391, 31 BRBS at 94 (CRT). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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