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                                  BRB No. 98-627

ALEXANDER HARRELL                       )
          Claimant                      )    DATE ISSUED:   01/26/1999
       v.                               )
COOPER/T. SMITH                         )
STEVEDORING COMPANY                     )
          Self-Insured                  )
          Employer-Respondent           )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Petitioner                    )    DECISION and ORDER

     Appeal of the Decision and Order and the Order Upon Reconsideration of
     Fletcher E. Campbell, Jr., Administrative Law Judge, United States
     Department of Labor.

     Bradford C. Jacob (Taylor & Walker, P.C.), Norfolk, Virginia, for self-insured employer.

     LuAnn Kressley (Henry L. Solano, Solicitor of Labor; Carol A. 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: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     SMITH, Administrative Appeals Judge:

     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order and the Order Upon Reconsideration (93-LHC-6) 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 sustained head, back and left index finger injuries in a 1991
accident involving a construction vehicle.  Claimant and employer agree that
claimant is permanently totally disabled, and employer has continued to pay
claimant disability benefits under the Act.  The sole issue before the
administrative law judge in this case was whether employer is entitled relief from
continuing liability for compensation pursuant to Section 8(f) of the Act, 33
U.S.C. §908(f).  Employer filed a petition for such relief based on claimant's
pre-existing conditions of degenerative disc disease, spinal stenosis, hypertension
and diabetes.  The administrative law judge awarded employer Section 8(f) relief
based on claimant's manifest pre-existing diabetes which he found combined with
claimant's work injury to result in total disability.  Decision and Order at 4-5. 
On reconsideration, the administrative law judge reaffirmed his award, correcting
only a typographical error regarding the compensation rate.  The Director appeals
this award, and employer responds, urging affirmance.

     The Director contends employer failed to establish the contribution element
necessary for Section 8(f) relief.  Specifically, he argues that employer failed
to show that "but for" the pre-existing permanent partial disability, claimant
would have been only partially disabled by the work injury.[1]   In response, employer argues it established that claimant's total
disability is due to both the work injury and the pre-existing diabetes.  After 104
weeks,  Section 8(f) shifts the liability to pay compensation for permanent
disability or death 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.  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);
Maryland Shipbuilding & Dry Dock Co. v. Director, OWCP [Miller], 618 F.2d
1082, 12 BRBS 77 (4th Cir. 1980); see generally Newport News Shipbuilding & Dry
Dock Co.  v.  Director, OWCP [Harcum II], 131 F.3d 1079, 31 BRBS 164 (CRT)(4th
Cir.  1997).

     The Director argues that the United States Court of Appeals for the Fourth
Circuit has adopted the "but for" standard and cites Maryland Shipbuilding
and Director, OWCP v. Norfolk Shipbuilding & Dry Dock Corp. [Brite], No. 96-2652, 1997 WL 712934 (4th Cir. Nov. 17, 1997) (unpublished), in support of his
contention.  We reject the Director's argument that "but for" language is required
in evidence in order for employer to establish the contribution element under
Section 8(f) in a case where claimant is totally disabled.  In Dominey v. Arco
Oil & Gas Co., 30 BRBS 134 (1996), the Board stated that "the  but for'
language is simply descriptive of acceptable evidence which will satisfy the
statutory mandate."[2]   Dominey, 30 BRBS
at 136.  Thus, it held that the two "versions" of the contribution test, "but for"
and "not due solely to," have the same implications, as both require an employer
to prove that a claimant's total disability was caused by both the work injury and
the pre-existing condition and not just by the work injury alone. Id. at
137; see also Harcum II, 131 F.3d at 1082, 31 BRBS at 167 (CRT)(rejecting
"but for" test in a case where claimant is partially disabled).

     We now consider the Director's argument that employer has not met the
contribution element based on the evidence presented.  The sole evidence relied
upon by employer to establish entitlement to Section 8(f) relief is Dr. Savit's
August 24, 1995 letter, Emp. Ex. 2 at exh. 15, in which he states:

     1) It is my opinion within a reasonable degree of medical certainty that
     Mr. Harrell is permanently and totally disabled as a result of a
     combination of his prior diabetic condition and his back, head and
     finger injury of November 29th, 1991.

     2) The ultimate disability that Mr. Harrell now suffers from is
     materially and substantially greater because of the diabetic condition
     that [sic] it would have been from the injury alone.

The administrative law judge credited this evidence, stating it is unrebutted, and
finding that "Dr. Savit's statement implies that the disability from the latest
injury would not, by itself, have been total."  Decision and Order at 5.

     The Director contends Dr. Savit's letter is insufficient to establish the
contribution element because employer has the burden of proving its entitlement to
Section 8(f) relief and the Director is not required to present rebuttal evidence,
and because the "combination" test has been rejected.  We agree with the Director
that employer has not satisfied the contribution element necessary for Section 8(f)
relief.  Initially, as employer has the burden of proof of establishing
contribution,  see, e.g., Ceres Marine Terminal v. Director OWCP [Allred],
118 F.3d 387, 31 BRBS 91 (CRT) (5th Cir. 1997), it was incorrect for the
administrative law judge to credit Dr. Savit's letter merely because there is no
evidence to contradict his statement.   Further, although Dr. Savit's letter states
that claimant's total disability is caused by the combination of his pre-existing condition and his work injury, the Director correctly asserts that the
"combination" test is no longer embraced by the courts and that more is required
of employer. Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28
BRBS 30 (CRT) (D.C. Cir. 1994); Director, OWCP v. General Dynamics Corp.
[Bergeron], 982 F.2d 790, 26 BRBS 139 (CRT) (2d Cir. 1992); Luccitelli,
964 F.2d at 1303, 26 BRBS at 1 (CRT).  Specifically, under the plain language of
Section 8(f), see n.2, supra, employer must establish that claimant's
work injury alone is not responsible for his total disability, and the mere
statement that claimant's overall condition is the result of the combination of two
conditions is not enough to show that claimant's work-related injury alone would
not result in total disability. See generally Allred, 118 F.3d 390, 31 BRBS
at 93 (CRT)(explaining how work injury alone may render a claimant unemployable but
a pre-existing disability may make the claimant's condition worse by increasing his
pain); Luccitelli, 964 F.2d at 1303, 26 BRBS at 1 (CRT).  As employer has
not demonstrated that claimant's work injury alone is not totally disabling, it has
failed to satisfy the contribution element and cannot obtain Section 8(f) relief. 
Therefore, we reverse the administrative law judge's award of Section 8(f) relief.

     Accordingly, the administrative law judge's decisions awarding Section 8(f)
relief are reversed.


                         ROY P. SMITH
                         Administrative Appeals Judge

     I concur:                                                     
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

     McGRANERY, Administrative Appeals Judge, concurring:

     I agree only in the result reached by my colleagues in this case.

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)The Director does not challenge the administrative law judge's determination that claimant's diabetes constitutes a manifest pre-existing permanent partial disability. Back to Text
2)Section 8(f) of the Act specifically states: In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide in addition to compensation under subsections (b) and (e) of this section, compensation payments or death benefits for one hundred and four weeks only. 33 U.S.C. §908(f)(1) (emphasis added). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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