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                                   BRB No. 92-2360

ALBERT C. HARLING                       )
          Claimant                      )
     v.                                 )
KIEWIT-GRICE                            )
     and                                )
          Employer/Administrator-       )
          Petitioners                   )
     and                                )
COMPENSATION PROGRAMS,                  )    DATE ISSUED:   03/30/1995
          Respondent                    )    DECISION AND ORDER

     Appeal of the Decision and Order of Alexander Karst, Administrative Law
     Judge, United States Department of Labor.

     Russell A. Metz (Metz, Frol & Jorgensen, P.S.), Seattle, Washington, for

     Karen B. Kracov (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: BROWN, DOLDER and McGRANERY, Administrative Appeals Judges.  


     Employer appeals the Decision and Order (91-LHC-1707) of Administrative Law
Judge Alexander Karst 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 March 25, 1985, claimant sustained a serious injury while working for
employer when a large wood concrete form weighing about 1,000 pounds fell on him,
striking his back and left side.  Claimant's spine was fractured, his first lumbar
vertebra was crushed and a bone fragment was forced against his spinal canal.
Claimant underwent spinal fusion surgery and had metal rods inserted in his back.
He was hospitalized for about one month, after which he had a year of convalescence
at home.  Claimant has not been able to return to work since this injury, and
sought permanent total disability compensation under the Act. Subsequent to the
hearing, but prior to the issuance of the administrative law judge's Decision and
Order in this case, claimant and the employer stipulated that claimant is
permanently totally disabled.  Accordingly, the only unresolved issue pending for
adjudication before the administrative law judge at the time he issued his Decision
and Order 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 denied employer
Section 8(f) relief.  It was undisputed that claimant had numerous pre-existing
conditions, including injuries to his right leg resulting from a gun shot wound,
hypertension, degeneration of his spine, and various injuries due to car accidents. 
The Director did not dispute that these conditions constituted manifest, pre-existing permanent partial disabilities under Section 8(f).  The only issue before
the administrative law judge was thus whether claimant's total disability was due
solely to his work-related injury on March 25, 1985.  In analyzing this issue, the
administrative law judge concluded that the evidence established "that the work-related injury alone left him so crippled that by reason of it alone he would never
have been able to return to his former work."  Decision and Order at 3.  He further
concluded that while it may be true that claimant's other conditions may have also
disabled him, and that "the pre-existing conditions might render him disabled, so
to speak, twice over," Id., these facts were irrelevant to the question of
contribution under Section 8(f).  Accordingly, the administrative law judge
determined that as employer had not shown that claimant's 1985 injury alone would
not have totally disabled him, employer was not entitled to Section 8(f) relief. 

     On appeal, employer contends that in denying Section 8(f) relief the
administrative law judge analyzed the contribution element of Section 8(f) under
an incorrect legal standard.  Employer also contends that the administrative law
judge failed to thoroughly discuss the medical evidence, and that, in any event,
the evidence submitted is sufficient to establish contribution even under the
strict standard followed by the administrative law judge. The Director, Office of
Worker's Compensation Programs (the Director), responds, urging that the
administrative law judge's denial of Section 8(f) relief be affirmed.  Employer
replies, reiterating the arguments it made in its Petition for Review.

     Section 8(f) relief is available to employer if it establishes:  (1) that the
employee had a 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 pre-existing conditions combine with the subsequent injury so that the
employee's permanent total disability is not due to the most recent injury alone.
See Bunge Corp. v. Director, OWCP, 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).  The burden of proof is on employer to show each of the
elements necessary for Section 8(f) relief. Director, OWCP v. Campbell
Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th Cir. 1982), cert.
denied, 459 U.S. 1104 (1983).

     We reject employer's arguments and affirm the administrative law judge's
determination that employer failed to establish that claimant's disability was not
solely due to his final injury.  The administrative law judge properly found that
in cases arising within the jurisdiction of the United States Court of Appeals for
the Ninth Circuit, 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). 
Although employer contends that the administrative law judge erred in analyzing
contribution under the stringent standard set forth by the United States Court of
Appeals for the Second Circuit in Director, OWCP v. Luccitelli, 964 F.2d
1303, 26 BRBS 1 (CRT)(2d Cir. 1992), rev'g Luccitelli v. General Dynamics
Corp., 25 BRBS 30 (1991), as this case arises from the Ninth Circuit, we note
that the Ninth Circuit explicitly cited the Luccitelli standard with
approval in E.P. Paup Co., 999 F.2d at 1353, 27 BRBS at 54 (CRT).  Thus,
contrary to employer's assertions, it is not sufficient that claimant's injuries
combine to create a greater degree of disability or physical impairment than would
have occurred based on the subsequent work injury alone. Id., 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.;
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). 

     We also reject employer's contention that the medical opinions of Drs. Sears,
Hogan, Adams and Wiese are sufficient to establish contribution under Section 8(f). 
Drs. Sears and Hogan noted that claimant suffered from pre-existing conditions,
including arthritis of the right knee, hypertension, and a history of cerebral
ischemia and stated these injuries in combination with the 1985 back condition
resulted in a greater degree of disability than would have resulted from his 1985
injury.  Ex. 2, p. 99.  Their opinions, however, are not sufficient, because they
do not demonstrate that the work-related injury alone did not cause claimant's
permanent total disability. Dr. Wiese's statement that claimant exhibits surgical decompression of his spine because of his pre-existing lumbar stenosis which,
though not caused by the accident, was aggravated by it, Ex. 1.84, and Dr. Ray's
opinion that claimant's industrial injury aggravated his pre-existing degenerative
condition and contributed to his disability, Ex. 1.73, are similarly insufficient.

     Employer also cites the May 14, 1991, discharge summary of Dr. Adams, the
doctor who treated claimant for his post-injury acute brain stem cerebral-vascular
accident in support of its contribution argument.  Ex. 1.87.  This report lists
many of claimant's pre-existing problems in the context of setting forth his
medical history but is not relevant to the contribution of prior injuries to
claimant's current condition, as Dr. Adams voiced no opinion regarding the
disabling effects of the prior conditions and the most recent work injury or their
relation to claimant's overall condition.  Moreover, in his deposition testimony,
Dr. Adams specifically attributed claimant's permanent total disability to the work
injury.  Dep. at 31. The remaining medical evidence of record, which consists of
various hospital reports relating to claimant's surgery and reports from the
Orthopaedic Panel Consultants, is irrelevant to the issue presented in this case. 
Because there is no evidence in the record sufficient to establish that claimant's
industrial back injury alone was not totally disabling, we affirm the
administrative law judge's conclusion that employer did not establish the
contribution requirement of Section 8(f) in this case.  His denial of Section 8(f)
relief is therefore affirmed. 

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



                         JAMES F. BROWN
                         Administrative Appeals Judge


                         NANCY S. DOLDER
                         Administrative Appeals Judge


                         REGINA C. McGRANERY
                         Administrative Appeals Judge   

NOTE: This is an UNPUBLISHED LHCA Document.

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