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                                 BRB No. 93-1248 

SALLY MURPHY                       )
(Widow of TIMOTHY MURPHY)          )
                         )
               Claimant            )
                         )
     v.                            )
                         )
GENERAL DYNAMICS CORPORATION       ) DATE ISSUED:   04/24/1996
                         )
               Self-Insured        )
               Employer-Respondent )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED      )
STATES DEPARTMENT OF LABOR         )
                         )
               Petitioner          )   ORDER

     
     The Director, Office of Workers' Compensation Programs (the Director), has
filed a Motion to Remand in the captioned case, contending that the administrative
law judge failed to issue a Decision and Order containing findings of fact and
conclusions of law, as required by 20 C.F.R. §702.348, with respect to the
employer's request for Section 8(f) relief.[1]  
Employer has not responded to this motion.
     The parties agreed, and the administrative law judge found, that decedent
suffered from work-related asbestosis and chronic obstructive pulmonary disease
which resulted in a period of permanent partial disability from July 10, 1987 to
July 6, 1988.  In addition, the parties agreed, and the administrative law judge
found, that decedent's death on September 16, 1990, was due to his lung injuries
which arose out of and within the scope of employment.  Employer contested the
timeliness of decedent's application for permanent partial disability benefits
under Section 8(c)(23) of the Act, 33 U.S.C. §908(c)(23), and, alternatively,
requested relief from continuing compensation liability pursuant to Section 8(f),
33 U.S.C. §908(f), of the Act.
     The administrative law judge found that the claim filed by decedent was
timely, and he awarded permanent partial disability benefits for an 80 percent
impairment of the whole person from July 7, 1988 to September 16, 1990, and death
benefits to claimant thereafter.  In addition, the administrative law judge granted
employer relief from continuing compensation liability pursuant to Section 8(f),
effective July 10, 1987, inasmuch as its request for relief was "unopposed." 
Specifically, the administrative law judge found that the Director acknowledged the
cases docketed for October 26, 1992, including the present case, but provided no
other comment respecting this case.  Thus, the administrative law judge concluded
employer's request for Section 8(f) relief was unopposed. Decision and Order at 4.
      Section 8(f) of the Act shifts liability to pay compensation for permanent
disability or death after 104 weeks from an employer to the Special Fund
established in Section 44 of the Act, 33 U.S.C. §§908(f), 944.  Section
8(f) is applicable if employer establishes that: 1) the employee had an existing
permanent partial disability prior to the employment injury or death; 2) the
disability was manifest prior to the employment injury or death; and 3) the current
disability or death is not due solely to the most recent injury. Director, OWCP
v. General Dynamics Corp. [Bergeron], 982 F.2d 790, 26 BRBS 139 (CRT)
(2d Cir. 1992).  Where there are two claims, one for permanent partial disability
benefits and one for death benefits, employer must raise and show entitlement to
Section 8(f) relief for each claim.  Fineman v. Newport News Shipbuilding & Dry
Dock Co., 27 BRBS 104 (1993); Adams v. Newport News Shipbuilding & Dry Dock
Co., 22 BRBS 78  (1989).  If Section 8(f) applies to both claims, and if both
the disability and death arose from the same work-related condition, employer is
liable for only one 104-week period. Graziano v. General Dynamics Corp., 14
BRBS 950 (1982), aff'd sub nom. Director, OWCP v. General Dynamics Corp.,
705 F.2d 562, 15 BRBS 130 (CRT)(1st Cir. 1983); Bingham v. General Dynamics
Corp., 20 BRBS 284 (1986).
     Employer has the burden of proving all three of the required elements 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);
Green v. J.O. Hartman Meats, 21 BRBS 214 (1988).  Moreover, stipulations
entered into without the participation of the Director that effect the
applicability of Section 8(f) relief are not binding on the Special Fund,
McDougall v. E.P. Paup Co., 21 BRBS 204 (1988), aff'd in pert. part sub
nom. E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341, 27 BRBS 41 (CRT) (9th Cir.
1993), and the Director has standing to appeal a Section 8(f) finding regardless
of whether he participated before the administrative law judge. Hitt v. Newport
News Shipbuilding & Dry Dock Co., 16 BRBS 353 (1984).
     Furthermore, decisions rendered under the Longshore Act are required by the
Administrative Procedure Act to include a statement of "findings and conclusions
and the reason or basis therefor on all material issues of fact, law, or discretion
presented in the record."  5 U.S.C. §557(c)(3)(A).  The administrative law
judge must adequately detail the rationale behind his decision; he must analyze and
discuss the medical evidence of record, and explicitly set forth his reasons as to
why he has accepted or rejected such evidence.  See Cotton v. Newport News
Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990); Hoodye v. Empire/United
Stevedores, 23 BRBS 341 (1990).
     In the present case, there is no evidence that the Director did not oppose the
Section 8(f) application merely because she was not represented at the hearing, and
thus employer had the burden of proving the requisite elements.  Because the
administrative law judge in the instant case has failed to make any findings on
whether employer has established the necessary elements for Section 8(f) relief,
we vacate the administrative law judge's grant of Section 8(f) relief. The case is
remanded to the administrative law judge to consider the evidence and render
findings of fact and conclusions of law as to employer's application for Section
8(f) relief.
     Accordingly, the Director's Motion to Remand is granted and the Decision and
Order of the administrative law judge is vacated insofar as it granted employer
Section 8(f) relief. The case is remanded to the administrative law judge for
further consideration consistent with this decision.
     SO ORDERED.

                                                           

                              Administrative Appeals Judge



                                                           

                              Administrative Appeals Judge



                                                           

                              Administrative Appeals Judge 



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Footnotes.


1) The Director's notice of appeal was acknowledged by the Board on March 26, 1993. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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