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                                  BRB No. 91-493
WILLIAM CONNOLLY                        )
          Claimant                      )
     v.                                 )
GENERAL DYNAMICS                        )    DATE ISSUED:   06/27/1995
CORPORATION                             )
          Self-Insured                  )
          Employer-Petitioner           )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Respondent                    )    DECISION and ORDER

     Appeal of the Decision and Order of Robert G. Mahony, Administrative Law
     Judge, United States Department of Labor.

     Edward J. Murphy, Jr. (Murphy and Beane), Boston, Massachusetts, for

     Before:  HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.


     Employer appeals the Decision and Order (88-LHC-1665) of Administrative Law
Judge Robert G. Mahony 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 injured his back while working for employer as a ship superintendent
on October 12, 1985.  After a short absence due to the accident, claimant returned
to work, but stopped working due to back pain on July 7, 1986, and has not worked
since that date.  The record indicates that prior to the October 1985 injury,
claimant had a history of elbow, back, knee, ankle, hand and head problems.

     The administrative law judge found that claimant was permanently totally
disabled from July 7, 1986 and continuing, and accordingly awarded benefits.  33
U.S.C. §908(a).  The administrative law judge denied employer relief from
continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C.
§908(f), finding that while claimant had manifest, pre-existing permanent
partial disabilities to his ankle and elbow, employer did not meet the contribution
element of Section 8(f).  

     On appeal, employer contends that the administrative law judge erred in
failing to find that claimant had permanent pre-existing disabilities to his back,
knee, hand and head, and erred in failing to find that employer satisfied the
contribution element of Section 8(f). The Director, Office of Workers' Compensation
Programs, has not responded to this appeal.

     To establish entitlement to Section 8(f) relief, employer must show that 1)
claimant 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-related injury but results from the combined
effects of that injury and the pre-existing permanent partial disability. See
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum], 8 F.3d
175, 27 BRBS 116 (CRT) (4th Cir. 1993), aff'd on other grounds,   U.S.   
, 115 S.Ct. 1278 (1995); Director, OWCP v. Luccitelli, 964 F.2d 1301, 26
BRBS 1 (CRT)(2d Cir. 1992).  In order to satisfy the contribution element, employer
must show that claimant's subsequent injury alone did not cause his permanent total
disability. Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28
BRBS 30 (CRT) (D.C. Cir. 1994); Luccitelli, 964 F.2d at 1306, 26 BRBS at 7

     The administrative law judge found that the record contains no medical
evidence attributing any portion of claimant's current total disability to a pre-existing condition.  The administrative law judge found that, at best, the record
contains the vague statement of Dr. Douglas, a chiropractor, that "[w]ith the
sequelae of several previous work related injuries and degenerative changes taking
place in this spine, [claimant] would be increasingly at risk for re-injury." 
Decision and Order at 7; Emp. Ex. 11.  The administrative law judge found that Dr.
Douglas's statement alone is not sufficient to establish that claimant's pre-existing ankle and elbow disabilities combined with his 1985 back injury to
contribute to his permanent total disability.  

     The administrative law judge properly found that Dr. Douglas's opinion is
insufficient to establish that claimant's 1985 work injury alone did not cause
claimant's total disability. See Jaffe New York Decorating, 25 F.3d at 1085,
28 BRBS at 36 (CRT); Luccitelli, 964 F.2d at 1306, 26 BRBS at 7 (CRT). 
Although employer correctly notes that an employment-related aggravation of a pre-existing disability will satisfy the contribution
element, see Director, OWCP v. General Dynamics Corp., 705 F.2d 562, 15 BRBS
130 (CRT) (1st Cir. 1983), aff'g Graziano v. General Dynamics Corp., 14 BRBS
950 (1982), the record in this case does not contain any evidence that claimant's
work injury aggravated a pre-existing condition.  Dr. Kurnzer's report of November
20, 1989, merely states that claimant reported a number of exacerbations of back
pain over the years.  Emp. Ex. 10.  Employer's reliance on Dr. Glenney's report
that claimant was able to work with back pain until the last incident is similarly
misplaced, as this statement supports the conclusion that the last injury alone
caused claimant's total disability.  Emp. Ex. 12.  Inasmuch as the record does not
contain any evidence sufficient to satisfy the contribution element for Section
8(f) relief, we affirm the administrative law judge's denial of Section 8(f)

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



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                         ROY P. SMITH
                         Administrative Appeals Judge


                         NANCY S. DOLDER
                         Administrative Appeals Judge

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1)In view of the fact that the record does not contain evidence sufficient to establish the contribution element, we need not address employer's contentions that the administrative law judge erred in finding that it did not establish that claimant has permanent pre-existing disabilities to his knee, back, hand and head. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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