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                                 BRB No. 97-0701

  
ELBERT BLOUNT                           )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   01/16/1998

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

     Appeal of the Decision and Order Granting Permanent Total Disability
     Benefits and Section 8(f) Relief and Errata Order and Award of Temporary
     Total Disability of Daniel A. Sarno, Jr., Administrative Law Judge,
     United States Department of Labor.

     Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

     LuAnn Kressley (Marvin Krislov, Deputy Solicitor for National
     Operations; Carol DeDeo, Associate Solicitor; Janet R. Dunlop, Counsel
     for Longshore), Washington, D.C., for the Director, Office of Workers'
     Compensation Programs, United States Department of Labor.

     Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     The Director, Office of Workers' Compensation Programs (the Director), 
appeals the Decision and Order Granting Permanent Total Disability Benefits and
Section 8(f) Relief and Errata Order and Award of Temporary Total Disability (91-LHC-2718) 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 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).  

     On July 17, 1989, claimant sustained a work-related injury to his left arm and
shoulder while attempting to lift a manhole cover with the assistance of a
coworker; claimant's injury was subsequently diagnosed as thoracic outlet syndrome. 
Claimant had previously suffered numerous prior injuries to both of his hands,
including, inter alia, bilateral carpal tunnel syndrome.[1]   Employer voluntarily paid claimant permanent
partial disability compensation under the schedule for a 20 percent permanent
impairment of the left wrist, and various periods of temporary total disability
compensation between 1989 and 1996. See Employer's Exhibit 8, 9.  Claimant
sought additional total disability benefits under the Act.

     The administrative law judge found that claimant was unable to perform his
usual work duties as fitter, and that employer failed to establish the availability
of suitable alternate employment.  Accordingly, he awarded claimant temporary total
disability benefits from April 18, 1991 to January 23, 1996, and permanent total
disability benefits thereafter. The administrative law judge also granted
employer's request for relief under Section 8(f),   33 U.S.C.  §908(f), based
on claimant's numerous pre-existing hand injuries.  On appeal,  the Director
challenges only the award of Section 8(f) relief, arguing that the administrative
law judge erred in determining that employer established the contribution element
necessary for such relief.  Employer responds, urging affirmance.[2] 

     In a claim for permanent total disability benefits, Section 8(f) of the Act
limits employer's liability to 104 weeks if employer establishes that claimant
suffers from a manifest pre-existing permanent partial disability, and shows, by
medical evidence or otherwise, that claimant's ultimate permanent total disability
is not due solely to the work-related injury. Newport News Shipbuilding & Dry
Dock Co. v. Director, OWCP (Harcum II), ___ F.3d ___, No. 96-2546 (4th Cir.
Sept. 12, 1997); Ceres Marine Terminal v. Director, OWCP [Allred], 118 F.3d
307 (5th Cir. 1997).

     On appeal, the Director does not dispute that claimant's numerous pre-existing
hand and arm injuries constitute manifest pre-existing permanent partial
disabilities under  Section 8(f).  Rather, the Director contends that the
administrative law judge erred in finding that the employer satisfied the
contribution requirement for Section 8(f) relief based on Dr. Reid's opinion
because this evidence is insufficient to establish that claimant's work-related
1989 injury was not itself totally disabling.

     After  review of the administrative law judge's Decision and Order in light
of the record evidence and the Director's arguments on appeal, we hold that the
decision of the administrative law judge is rational, supported by substantial
evidence, and in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe,
380 U.S. at 359.  In addressing the contribution element of Section 8(f), the
administrative law judge rationally found based on Dr. Reid's testimony that
claimant's permanent total  disability is not due solely to his most recent injury. 
In this regard, Dr. Reid opined that claimant's disability was not caused by his
1989 left arm injury alone, but rather that claimant's disability was materially
contributed to, and made materially and substantially worse by his pre-existing
bilateral hand disability.  Dr. Reid explained that if claimant had  only the pre-existing bilateral hand disability, or only the disability resulting from his 1989
injury, he would have been able to continue working at the shipyard in a light duty
capacity, but because of the combination of restrictions from these injuries, he
was unable to perform shipyard work.  Employer's Exhibit 7(c).  Contrary to the
Director's assertions, the fact that Dr. Reid did not substantiate his opinion by
citing  available jobs that claimant could do based on  the 1989 shoulder injury
alone does not preclude the administrative law judge from crediting his opinion as
sufficient to establish this element of Section 8(f). As Dr. Reid's testimony
provides substantial evidence to support the administrative law judge's finding
that claimant's permanent total disability is not due solely to his 1989 work
injury, and his crediting of this testimony was a rational credibility
determination within his discretionary authority, we affirm his  determination that
the contribution element of Section 8(f)  was satisfied in the present case, and
consequently his award of Section 8(f) relief. Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963);
Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996).

     Accordingly, the administrative law judge's Decision and Order Granting
Permanent Total Disability Benefits and Section 8(f) Relief and Errata Order and
Award of Temporary Total Disability are affirmed.

     SO ORDERED.




                                                                    
                                                                                            BETTY JEAN HALL, Chief                            Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge

                                      
                                                                        

                         REGINA C. McGRANERY                               Administrative Appeals Judge



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Footnotes.


1)On March 11, 1981, claimant sustained an injury to his left little finger; on October 26, 1982 and December 3, 1984, an injury to his left wrist; on October 28, 1995, an injury to his right forearm; on March 10, 1986, a contusion of his right hand; and on February 3, 1997, a sprain of his left wrist and right ring finger. On March 17, 1988, he began to experience numbness which was subsequently diagnosed as carpal tunnel syndrome for which he underwent surgery on September 8, 1988 and October 12, 1988. In addition, claimant underwent surgery for recurrent flexor tenosynovitis of the right wrist with tendon adhesions on December 6, 1988. Back to Text
2)Claimant's cross-appeal, BRB No. 97-0701A, was dismissed by the Board at claimant's request by Order dated May 12, 1997. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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