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                                  BRB Nos. 92-2098
                      
JAMES E. JONES                          )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )    DATE ISSUED:   04/25/1995
          Self-Insured                  )
          Employer-Petitioner           )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeal of the Decision and Order Denying Petition for Relief Under
     Section 8(f) of Michael P. Lesniak, Administrative Law Judge, United
     States Department of Labor.

     Benjamin M. Mason, Newport News, Virginia, for the self-insured
     employer.

     Karen B. Kracov (Thomas S. Williamson, Jr., Solicitor of Labor; Carol
     DeDeo, Associate Solicitor; Janet 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, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order Denying Petition for Relief Under
Section 8(f) (89-LHC-3204) of Administrative Law Judge Michael P. Lesniak 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 September 14, 1984, claimant fell down a flight of stairs while working for
employer as a sheet metal specialist, injuring his lower back.  As a result of the
injury, claimant underwent three separate laminectomies. Employer voluntarily paid
claimant temporary total disability and temporary partial disability compensation
for various periods.  Claimant sought permanent total disability compensation and
payment of medical expenses under the Act.  Prior to the formal hearing, employer
agreed to pay claimant permanent total disability compensation based upon an
average weekly wage of $472.95 commencing September 24, 1991, and medical benefits. 
The only issue pending for adjudication before the administrative law judge was
employer's entitlement to Section 8(f), 33 U.S.C. §908(f), relief.  

     In his Decision and Order, the administrative law judge denied employer
Section 8(f) relief.  Employer alleged Section 8(f) entitlement based on four pre-existing conditions -- a 1983 back injury, degenerative arthritis, hearing loss,
and hypertension. The administrative law judge found, however, that only the latter
two conditions constituted pre-existing permanent partial disabilities[1]  for Section 8(f) purposes and that these
conditions were manifest to employer via its clinic records.  Rejecting the medical
opinion of Dr. Harmon that claimant's hypertension and hearing loss would prevent
him from performing several jobs in the labor market as conclusory in favor of work
capacity evaluations performed by two vocational services, the administrative law
judge found, however, that employer did not meet its burden of establishing that
these conditions contributed to claimant's ultimate disability and he denied
Section 8(f) relief.  Employer appeals the denial of Section 8(f) relief.  Director
responds, urging affirmance. 

     Section 8(f) relief is available to employer if it establishes: 1) that the
claimant suffered from a pre-existing permanent partial disability; 2) that the
pre-existing permanent partial disability was manifest to the employer; and 3) that
the claimant's ultimate permanent disability is not due solely to the last injury,
but results from a combination of that injury and the prior 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, 63 U.S.L.W. 4213 (U.S. March 21, 1995); Director, OWCP v. Newport
News Shipbuilding & Dry Dock Co. [Barclift], 737 F.2d 1295, 16 BRBS 107
(CRT)(4th Cir. 1984). 

     On appeal, employer initially challenges the administrative law judge's
finding that claimant's 1983 back injury and degenerative arthritis did not result
in a pre-existing permanent partial disability for Section 8(f) purposes.  With
regard to the 1983 back injury, employer specifically avers that the administrative
law judge ignored a statement made by claimant in his affidavit which indicated
that he has suffered from continual back problems since the June 1983, back injury,
thereby establishing that this injury was "serious and lasting."  Emp. Ex. 1. 
Employer further contends that the administrative law judge erred in failing to
credit Dr. Harmon's "uncontested" opinion that claimant's 1983 back injury was
permanent and serious.  With regard to claimant's degenerative arthritis, employer
asserts that claimant's testimony, indicating that his degenerative arthritis pre-existed the subject work injury and that severe work restrictions were imposed on
him due to his back condition and degenerative arthritis, is sufficient to
establish that this condition was also a pre-existing permanent partial disability
under Section 8(f).    

     After review of the Decision and Order in light of the record evidence, we
affirm the administrative law judge's finding that claimant's 1983 lower back
injury did not result in a pre-existing permanent partial disability under Section
8(f).  A pre-existing permanent partial disability for purposes of Section 8(f)
must be a serious, lasting physical condition such that a cautious employer would
have been motivated to discharge the employee because of a greatly increased risk
of compensation liability. C & P Telephone Co. v. Director, OWCP, 564
F.2d 503, 6 BRBS 399 (D.C. Cir. 1977); see also Director, OWCP v. General
Dynamics Corp. [Bergeron], 982 F.2d 790, 26 BRBS 139 (CRT)(2d Cir. 1992).  In
concluding that claimant's 1983 back injury did not result in a pre-existing
permanent partial disability, the administrative law judge found that the only
evidence that claimant suffered a lower back condition prior to his final injury
were chart notes indicating that claimant injured his back when he fell in June
1983.[2]   The administrative law judge further
noted that although claimant sought medical attention for his back on one occasion
immediately following the 1983 injury, he was able to continue working, and there
was no indication that he sought further treatment.  The administrative law judge
thus concluded that as claimant's 1983 back injury did not produce any serious
lasting physical problems, it was not a pre-existing permanent partial disability
under Section 8(f).   Although employer correctly asserts that the administrative
law judge did not discuss Dr. Harmon's opinion that claimant 1983 back condition
was permanent and serious in making this finding, any error is harmless, as the
administrative law judge repeatedly discredited Dr. Harmon's opinion as conclusory
in his decision.   Inasmuch as the administrative law judge's finding that
claimant's back injury did not establish entitlement to Section 8(f) relief is
rational and supported by the record, it is affirmed. See Thompson v. Northwest
Enviro Services, Inc., 26 BRBS 53 (1992).

     Employer's argument that the administrative law judge erred in finding that
claimant's degenerative arthritis was not a pre-existing permanent partial
disability is also rejected.  The administrative law judge initially determined
that although employer alleged that claimant had degenerative arthritis which pre-existed his 1984 injury, no medical evidence was presented which indicated the
presence of degenerative arthritis prior to Dr. McCarthy's May 30, 1985, report. 
The administrative law judge then discredited the March 9, 1990, report of Dr.
Harmon, the shipyard medical director, which stated that claimant's arthritis
clearly pre-existed the 1984 work injury, finding it conclusory and unsupported by
sufficient medical evidence as Dr. Harcum, in fact, cited Dr. McCarthy's 1985
report as the basis for his opinion.[3]  

     We affirm the administrative law judge's finding.  The administrative law
judge acted within his discretion in discrediting Dr. Harmon's opinion as
conclusory, and this opinion is the only medical evidence that claimant's pre-existing degenerative condition resulted in any serious lasting physical problem
prior to the last injury. See Perini Corp. v. Heyde, 306 F.Supp. 1321
(D.R.I. 1969).   Because the administrative law judge reasonably discredited this
evidence, his finding that employer did not establish that this condition was a
pre-existing permanent partial disability under Section 8(f) is affirmed. See
generally Director OWCP v. General Dynamics Corp. [Lockhart], 980 F.2d 74, 26
BRBS 116 (CRT)(1st Cir. 1992); Shrout v. General Dynamics Corp., 27 BRBS
160, 164 (1993).  Contrary to employer's assertion, the statement in claimant's
affidavit that he had severe work restrictions placed on him because of both his
lower back condition and his degenerative arthritis, see Emp. Ex. 1(c), does
not mandate a contrary finding, as it refers to the combined effects of claimant's
degenerative arthritis and the subject injury on his ability to work post-injury
and is silent regarding the severity of claimant's degenerative arthritis prior to
his injury.  

     Employer also contends that the administrative law judge erred in failing to
find that it established the contribution element of Section 8(f) with regard to
claimant's pre-existing hypertension and hearing loss.  In order to establish
contribution, employer must demonstrate that the subsequent work injury alone was
not the sole cause of claimant's permanent total disability. See Harcum, 8
F.3d at 185, 27 BRBS at 131 (CRT); E.P. Paup Co. v. Director, OWCP, 999 F.2d
1341, 27 BRBS 41 (CRT) (9th Cir. 1993).  If the later injury alone is sufficient
to render claimant permanent totally disabled, the fact that his pre-existing
condition may have made his total disability even greater is not dispositive.
See Director, OWCP v. Luccittelli, 965 F.2d 1303, 26 BRBS 1 (CRT)(2d
Cir.1992); FMC Corp. v. Director, OWCP, 886 F.2d 1185, 23 BRBS 1 (CRT)(9th
Cir. 1989); Two "R" Drilling Co., Inc. v. Director, OWCP, 894 F.2d
748, 23 BRBS 34 (CRT) (5th Cir. 1989).

     In analyzing the contribution requirement in this case, the administrative law
judge found Dr. Harmon's statement that claimant's hypertension and hearing loss
would preclude claimant from performing jobs in the labor market such as telephone
solicitor outweighed by reports from two vocational experts at the Sheltering Arms
Vocational Industrial Services and the Riverside Rehabilitation Institute.  The
administrative law judge noted that both vocational reports attributed claimant's
disability to his work injury and resultant surgeries and both indicated that
claimant had no difficulty hearing, understanding directions, or otherwise
performing in the workplace. See Emp. Exs. 7, 8.  The administrative law
judge also referenced an unpublished opinion of the United States Court of Appeals
for the Fourth Circuit, Newport News Shipbuilding & Dry Dock Co. v.
Roughton, No. 90-2157 (4th Cir. 1991) (unpubl.), in which the court affirmed
another administrative law judge's finding that Dr. Harmon's conclusory opinion was
insufficient to meet employer's burden of proof with regard to causation, and he
found this result also appropriate here. 

     Employer argues on appeal that the administrative law judge erred in failing
to consider the uncontradicted statement claimant made in his affidavit that his
disability was not due totally to his work injury but was made materially worse by
his pre-existing back injury, degenerative arthritis, hypertension, and hearing
loss.  Emp. Ex. 1(d).  Employer further maintains that as the vocational experts
also noted difficulties with claimant's following directions and requiring frequent
cuing, Emp. Ex. 7, the administrative law judge erred in discounting Dr. Harmon's
opinion based on the vocational experts' opinions because they also indicate a
significant hearing disability.  Finally, employer asserts that the administrative
law judge improperly focused on an unpublished Fourth Circuit decision which is not
binding precedent. 

     The administrative law judge's finding that employer failed to establish
contribution is affirmed.  Initially, Dr. Harmon's opinion does not address whether
the work-related injury was itself totally disabling, and is thus insufficient to
support a finding of contribution as a matter of law.  Harcum, 8 F.3d at
185, 27 BRBS at 131 (CRT).  We thus need not address employer's specific
contentions regarding the administrative law judge's treatment of Dr. Harmon's
opinion.  Contrary to employer's assertions, the vocational expert at Sheltering
Arms noted that claimant had no difficulty following directions and the statement
regarding claimant's requiring cuing, also contained in the Sheltering Arms report,
was made in reference to claimant's body mechanics in lifting and not in regard to
claimant's hearing. See Emp. Ex. 7(c).  While employer correctly asserts
that the administrative law judge neglected to discuss claimant's affidavit
statement, we agree with the Director that this conclusory statement alone is
insufficient to meet employer's burden.  As the administrative law judge committed
no reversible error in evaluating the evidence in this case, his determination that
employer did not establish the contribution element in this case is affirmed.
See CNA Insurance Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT) (1st Cir.
1991).   Consequently, the denial of Section 8(f) relief is also affirmed, as it
is supported by substantial evidence.

     Accordingly, the Decision and Order Denying Petition for Relief Under Section
8(f) of the administrative law judge is affirmed.

     SO ORDERED.

                              

                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge noted that the Director conceded that these two conditions met the criteria. Back to Text
2)The medical records relating to the June 1983 back injury refer only passingly to the fact that claimant strained his lower back and left elbow after becoming dizzy and falling down. Emp. Ex. 2 Back to Text
3)Dr. McCarthy's opinion reflected his diagnosis of degenerative arthritis, but did not discuss how long it had been present. Emp. Ex. 4. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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