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                                   BRB No. 92-2221

HERMAN TAYLOR                           )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
SOUTHEAST STEVEDORE,                    )
INCORPORATED                            )
                                        )
     and                                )
                                        )
FIREMAN'S FUND INSURANCE                )    DATE ISSUED:   03/21/1995
COMPANY                                 )
                                        )
          Employer/Carrier              )
          Respondents                   )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )    
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Petitioner                    )    DECISION AND ORDER

     Appeal of the Decision and Order Granting Section 8(f) Relief of Eric
     Feirtag, Administrative Law Judge, United States Department of Labor.

     Jordon D. Morrow (Barrow, Sims, Morrow & Lee, P.C.), Savannah, Georgia,
     for employer/carrier.

     Mark Reinhalter (Thomas S. Williamson, Jr., Solicitor of Labor; Carol
     DeDeo, 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:  HALL, Chief Administrative Appeals Judge, and DOLDER and
     McGRANERY, Administrative Appeals Judges.  

     PER CURIAM:


     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order Granting Section 8(f) Relief (91-LHC-1551) of Administrative
Law Judge Eric Feirtag 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 February 15, 1987, claimant, a longshoreman for 28 years, sustained a low-back injury while working for employer loading liner board.  Although claimant
returned to work in July 1987, by March 1988 claimant's back pain had increased and
he again stopped working.  On March 29, 1988, claimant underwent a lumbar
laminectomy and discectomy at the L5-S1 level.  Claimant has not returned to work
since this surgery.  Claimant sought permanent total disability compensation under
the Act. Prior to the hearing, employer and claimant stipulated that claimant
reached maximum medical improvement on September 22, 1988, that he was permanently
totally disabled and that he was entitled to compensation based on an average
weekly wage of $1,274.75. Accordingly, the only issue pending for adjudication
before the administrative law judge was employer's entitlement to relief under
Section 8(f) of the Act, 33 U.S.C. §908(f).

     In his Decision and Order, the administrative law judge determined that
employer was entitled to Section 8(f) relief.  In so concluding, the administrative
law judge noted that since 1984 Dr. Stanley had treated claimant for a seizure
disorder, which rendered his longshore work potentially more dangerous, and
concluded that as this was the type of condition which would have motivated a
cautious employer to discharge the employee because of an increased risk of
compensation liability, it was a pre-existing permanent partial disability for
Section 8(f) purposes. See C & P Telephone Co. v. Director, OWCP, 564 F.2d
503, 6 BRBS 399 (D.C. Cir. 1977). The administrative law judge further determined
that the pre-existing seizure disorder was manifest to the employer prior to the
work injury and that the combination of this pre-existing condition and the
subsequent work-related back injury rendered claimant more physically and
economically disabled than he otherwise would have been based on the work-related
back injury alone.   Decision and Order at 9.

     Citing Director, OWCP v. Luccittelli, 965 F.2d 1303, 1305-1306,  26
BRBS 1, 5-6 (CRT) (2d Cir. 1992), the Director argues on appeal that the
administrative law judge's award of Section 8(f) relief cannot stand because he
analyzed the contribution element of Section 8(f) under an erroneous legal
standard.  The Director asserts that there is no evidence in the record sufficient
to establish Section 8(f) contribution under the correct legal standard.  Employer
responds, urging that the administrative law judge's decision awarding Section 8(f)
relief be affirmed. 

      Section 8(f) relief is available to employer if it establishes: (1) that the
employee had an pre-existing permanent partial disability; (2) that the pre-existing disability was manifest to employer prior to the subsequent work injury;
and (3) that the employee's current disability is not due to the most recent injury
alone. See Bunge Corp. v. Director, OWCP (Miller), 951 F.2d 1109, 25 BRBS
82 (CRT)(9th Cir. 1991);  Merrill v. Todd Pacific Shipyards Corp., 25 BRBS
140, 147 (1991); 33 U.S.C. §908(f). 

     We agree with the Director that the administrative law judge's award of
Section 8(f) relief cannot be affirmed because his finding of Section 8(f)
contribution was made under an erroneous legal standard.[1]   Based on claimant's testimony and that of Drs. Lorenzen and Stanley, 
the administrative law judge concluded that the limitations placed on claimant by
his seizure disorder are different from those placed on him as a result of his back
injury. The administrative law judge explained that in addition to the physical
limitations which  Dr. Lorenzen placed on claimant due to his back injury,
i.e., no heavy work and limited sitting and standing for four hours per day,
Dr. Stanley's testimony established that  claimant must also avoid any position
where he could injure himself or another if he were to have another seizure.  The
administrative law judge further concluded that claimant's problems with
sleepiness, concentration, and vision may prevent him from performing work which
he would be able to perform if his back injury alone were his only disability.  In
this regard, the administrative law judge noted claimant's testimony that while his
back injury alone would prevent him from performing his longshore employment, his
seizure disorder would interfere with his ability to perform other types of work. 
In light of these findings, the administrative law judge concluded that
contribution under Section 8(f) was established, stating that claimant not only
suffers from a greater degree of physical disability due to the combination of his
seizure disorder and subsequent back injury but, in addition, has a greater
incapacity to earn wages.

    The Director correctly asserts that in order to establish the contribution
element of Section 8(f), employer must demonstrate that the subsequent work injury
alone would not have caused claimant's permanent total disability. See E.P. Paup
Co. v. Director, OWCP, 999 F.2d 1341, 1353, 27 BRBS 41 (CRT) (9th Cir. 1993);
Luccittelli, 965 F.2d at 1306, 26 BRBS at 5 (CRT).  It is not sufficient
that claimant's injuries combine to create a greater degree of disability than
would have occurred based on the subsequent work injury alone. E.P. Paup
Co., 999 F.2d at 1353, 27 BRBS at 54 (CRT). If the later injury alone is
sufficient to render claimant permanently totally disabled, the fact that his pre-existing conditions may have made his total disability even greater is not
determinative. Id., 999 F.2d at 1353; 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).  As the
administrative law judge in the present case concluded that the contribution
element was established based on the combined effect of claimant's pre-existing
condition and the work injury without considering whether claimant's second injury alone would have
rendered him permanently totally disabled, we must vacate this finding and remand
for him to reconsider this issue, re-opening the record if necessary.  If on remand
the administrative law judge concludes that claimant would have been totally
disabled by the subsequent work-injury alone, employer is not entitled to Section
8(f) relief. See Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
[Harcum], 8 F.3d 175, 27 BRBS 116 (CRT) (4th Cir. 1993), cert. granted,
115 S.Ct. 41 (Sept. 26, 1994).  If, however, based on medical, vocational or other
evidence, the administrative law judge finds that claimant's work-related back
injury alone would not have rendered him permanently totally disabled but for his
pre-existing seizure condition, he should reinstate his prior award of Section 8(f)
relief.[2] 

     Accordingly, the administrative law judge's Decision and Order Granting
Section 8(f) Relief is vacated, and this case is remanded for further consideration
consistent with this opinion.

     SO ORDERED.

                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)The Director does not challenge the administrative law judge's findings with regard to the remaining elements of Section 8(f), 33 U.S.C. §908(f), entitlement. Back to Text
2)Inasmuch as we agree with the Director that the administrative law judge erred in analyzing Section 8(f) contribution in terms of whether claimant's pre-existing conditions rendered him more disabled, we need not address the Director's assertion that the administrative law judge's findings in this regard are speculative, equivocal, and not supported by the evidence. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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