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                                 BRB No. 99-1045
                                         
LARRY BURNS, JR.                        )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING AND           )    DATE ISSUED:   07/07/2000
                                             
DRY DOCK COMPANY                        )
                                        )
          Self-Insured                  )
          Employer-Respondent           ) 
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS                   )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Petitioner                    )    DECISION and ORDER

     Appeal of the Decision and Order of Richard K. Malamphy, Administrative
     Law Judge, United States Department of Labor.

     Christopher A. Taggi (Mason, Cowardin & Mason), Newport News, Virginia,
     for self-insured employer.

     Andrew D. Auerbach (Henry L. Solano, Solicitor of Labor; Carol A. DeDeo, Associate Solicitor;
     Joshua T. Gillelan, II, Senior Attorney), Washington, D.C., for the Director, Office of Workers'
     Compensation Programs, United States Department of Labor. 

     Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order (87-LHC-2513) of Administrative Law Judge Richard K.
Malamphy 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).

     Claimant, a rigger, injured his neck, back and right leg after falling
backwards into a manhole on June 17, 1983.  Employer voluntarily paid claimant
temporary total disability benefits for this injury from June 25, 1983, to August
28, 1983.  Claimant also injured his neck, back and right side on April 1, 1985,
when he was struck by boards as they were being loaded on a fork lift.[1]   For the 1985 injury, employer voluntarily paid
claimant temporary total disability benefits from April 3 to May 8, 1985, on June
3, 1985, and from June 10  to June 30, 1985.  Claimant was administratively passed
out of his light duty job in the MRA shop at employer's facility on April 17, 1987,
and held a new job as a security guard with a different employer for one year,
after which he was removed from that job.

     In a 1988 Decision and Order, Administrative Law Judge Glenn Robert Lawrence
awarded claimant periods of temporary total and partial disability benefits for his
injuries.  See Emp. Ex. 5 (1991).  Subsequently, both claimant and employer
sought modification of this decision after claimant reached maximum medical
improvement in November 1988.  Employer also sought relief from continuing
compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f),
by application dated March 27, 1989.  In the Section 8(f) application, employer
asserted that the 1983 injury was a manifest pre-existing permanent partial
disability which contributed to any disability resulting from the 1985 injury. 
Emp. Ex. 6 (1991).

     In a January 24 and February 22, 1991, Decision and Order and Amended Decision
and Order, Administrative Law Judge Richard K. Malamphy (the administrative law
judge) ordered employer to pay claimant permanent partial disability benefits in
the amount of $158.87 per week from November 23, 1988, except for a period of
temporary total disability benefits from March 17, 1989, through July 31, 1990.[2]   After 104 weeks from November 23, 1988, the administrative law judge
ordered the Special Fund to pay claimant's disability benefits, as he concluded that employer satisfied all requirements for
Section 8(f) relief.[3]   See Emp. Exs. 1, 2 (1999).    

     In February 1998, claimant sought a 10 percent scheduled permanent partial disability award under Section 8(c)(2)
of the Act, 33 U.S.C. §908(c)(2), for his right leg injury, in addition to his ongoing award of permanent partial
disability benefits under Section 8(c)(21).  Cl. Ex. 1b (1999).  Employer agreed that claimant is entitled to this scheduled
award under Section 8(c)(2), but asserted that the Special Fund is liable for these benefits.

     In his 1999 Decision and Order, the administrative law judge ordered the Special Fund to pay claimant the 10
percent scheduled permanent partial disability award.[4]   The administrative law
judge reasoned that employer's liability ceased after it paid claimant for 104 weeks of permanent disability benefits, relying
on the fifth sentence of Section 8(f)(1) of the Act, 33 U.S.C. §908(f)(1), which states that employer is liable for
compensation for 104 weeks only, and the line of cases holding that employer is liable for only one 104-week period,
pursuant to Section 8(f), for all permanent disabilities arising out of the same injury. See, e.g.,  Murphy v. Pro-Football,
Inc., 24 BRBS 187 (1991), aff'd on recon., 25 BRBS 114 (1991), rev'd mem. on other grounds, No.
91-1601 (D.C. Cir. Dec. 18, 1992); see also Huneycutt v. Newport News Shipbuilding & Dry Dock Co., 17 BRBS
142 (1985).

     On appeal, the Director challenges the administrative law judge's decision
ordering the Special Fund to pay claimant the 10 percent scheduled permanent
partial disability award.  Employer initially responds that the Director is barred
from challenging the applicability of Section 8(f) for the first time on appeal as
the Director neither challenged the applicability of Section 8(f) to this claim
before the administrative law judge nor appealed the administrative law judge's
1991 decision granting employer Section 8(f) relief.[5]   Employer also responds in support of the administrative law judge's
decision.

     The Director argues that the administrative law judge erred in holding the
Special Fund liable for the payment of claimant's scheduled award as claimant's leg
injury was never found to have been made materially and substantially greater due
to a manifest, pre-existing permanent partial disability.  The Director also argues
that employer is liable for claimant's scheduled award under Section 8(c)(2) as it
is not for the same injury for which Section 8(f) was previously awarded and
because it runs for fewer than 104 weeks.  Employer responds that the Special Fund
is liable for the payment of claimant's scheduled award under Section 8(c)(2)
because employer's obligation to pay compensation was discharged in full after it
paid 104 weeks of compensation under Section 8(c)(21), as both disabilities arose from
the same work accident.

     Section 8(f) shifts the liability to pay compensation for permanent disability
or death benefits after 104 weeks from an employer to the Special Fund established
in Section 44 of the Act.  33 U.S.C. §§908(f), 944.  An employer may be
granted Special Fund relief, in a case where a claimant is permanently partially
disabled, if it establishes that the claimant had a manifest pre-existing permanent
partial disability, and that his current permanent partial disability is not due
solely to the subsequent work injury and "is materially and substantially greater
than that which would have resulted from the subsequent work injury alone."  33
U.S.C. §908(f)(1); Director, OWCP v. Newport News Shipbuilding & Dry Dock
Co. [Carmines], 138 F.3d 134, 32 BRBS 48 (CRT)(4th Cir. 1998), Director,
OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum II], 131 F.3d 1079,
31 BRBS 164 (CRT)(4th Cir. 1997); Director, OWCP v. Newport News Shipbuilding
& Dry Dock Co. [Harcum I], 8 F.3d 175, 27 BRBS 116 (CRT)(4th Cir. 1993),
aff'd on other grounds, 514 U.S. 122, 29 BRBS 87 (1995).  Where a claimant
files claims for two types of benefits arising from the same injury, an employer
must raise and show entitlement to Section 8(f) relief for each claim separately. 
See, e.g., Fineman v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104
(1993); Huneycutt, 17 BRBS at 142.  If Section 8(f) applies to both awards,
employer is liable for only one period of 104 weeks. Id.; Cf. Newport News
Shipbuilding & Dry Dock Co. v. Howard , 904 F.2d 206, 23 BRBS 131 (CRT) (4th
Cir. 1990)(if injuries are unrelated, employer is liable for 104 weeks on each
award).  In a case involving both a scheduled award and a Section 8(c)(21) award,
the Board recently has held that employer must establish entitlement to Section
8(f) relief for both awards individually as the Act provides different methods of
apportioning liability between an employer and the Special Fund for each type of
award.[6]   See Padilla v. San Pedro Boat
Works,    BRBS    , BRB No. 99-862 (May 17, 2000).

     We reverse the administrative law judge's finding that the Special Fund is liable for claimant's schedule
award in this case.  The administrative law judge ordered the Special Fund to pay claimant the scheduled 10 percent
permanent partial disability award under Section 8(c)(2), as he found that employer's liability ceased after it had paid 104
weeks of compensation under Section 8(c)(21), and that employer is liable for only a single period of 104 weeks for all
permanent disabilities arising out of the same injury.  Contrary to the administrative law judge's finding and employer's
contention, however, employer is not relieved of all liability after 104 weeks for all permanent disabilities arising from the
same injury.  Rather, Section 8(f) must be shown to be applicable to each disability. See, e.g., Padilla, slip op. at
8-9.  In this case, the administrative law judge did not determine whether Section 8(f) applies to the schedule award, and
moreover, there is insufficient evidence of record to establish the elements of entitlement to Section 8(f) relief on this award. 
Dr. Stiles identified the date of claimant's injury as April 1985, and he summarily stated on December 19, 1991, that,
"[Claimant] has a 10% permanent disability in his lower extremity as a result of his knee problem.  I do not think this is
going to improve in the future."  Emp. Ex. 4 (1999).  On September 30, 1997, Dr. May diagnosed, among other things, a
right knee tear, identified the date of claimant's injury as April 1, 1985, and summarized that, "[Claimant] tolerated the
evaluation well . . . . [H]is range of motion for the right lower extremity totaled 10% . . . ."  Cl. Ex. 1b (1999).  Dr. May
also noted that claimant has a prior medical history that is positive for injuries to his lower back and right knee resulting
from falling into a manhole, i.e., claimant's 1983 injury. Id.  This medical evidence does not establish that
claimant had a manifest pre-existing permanent partial disability, see, e.g., Callnan v. Morale, Welfare & Recreation,
Dep't of the Navy, 32 BRBS 246 (1998), or that his current permanent partial disability is not due solely to the
subsequent work injury and is "materially and substantially greater than that which would have resulted from the subsequent
work injury alone." See Carmines, 138 F.3d at 134, 32 BRBS at 48 (CRT).  As employer did not establish Section
8(f) entitlement on claimant's award pursuant to Section 8(c)(2) separately from its entitlement to claimant's award pursuant
to Section 8(c)(21), employer is not entitled to Section 8(f) relief on the scheduled award. See generally Huneycutt,
17 BRBS at 142.  Consequently, the administrative law judge's decision ordering the Special Fund to pay claimant's
scheduled permanent partial disability award under Section 8(c)(2) is reversed.  The decision is modified to reflect
employer's liability for this award.[7] 

     Accordingly, the administrative law judge's Decision and Order ordering the
Special Fund to pay claimant a 10 percent scheduled permanent partial disability
award under Section 8(c)(2) is reversed and modified to reflect that employer is
responsible for the payment of this award.

     SO ORDERED. 



                                                                    
                                                                         
                              BETTY JEAN HALL, Chief                            Administrative Appeals Judge



                                                                           
                                          JAMES F. BROWN
                         Administrative Appeals Judge


                           
                                                                           
                                          MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge


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Footnotes.


1) 1Claimant's claim for compensation for the June 17, 1983, injury states he injured his back and right foot. Emp. Ex. 3 at 2 (1988); Emp. Ex. 2 at 2 (1991). Claimant's claim for compensation for the April 1, 1985, injury states he injured his back and right leg. Emp. Ex. 5 at 2 (1988); Emp. Ex. 4 at 2 (1991). However, the administrative law judge stated that claimant injured his right leg in 1983 and his right side in 1985 based on claimant's testimony to that effect. See Appendix to Dir. Br. at 3; Emp. Ex. 5 at 3 (1991); 1988 Tr. at 32, 37-38. Back to Text
2) 2The permanent partial disability benefits were based on claimant's loss in wage-earning capacity, and therefore were awarded pursuant to Section 8(c)(21), although the administrative law judge did not so state. See Emp. Ex. 1 at 3 (1999). Back to Text
3) 3The administrative law judge concluded that claimant's 1983 back injury was a manifest pre-existing permanent partial disability because employer had paid compensation for this injury prior to the second work injury. Emp. Ex. 1 at 5 (1999). After noting that the neck impairment was previously determined to be attributable to both work injuries, the administrative law judge found that employer has shown that claimant's second injury materially and substantially contributed to his current level of partial disability. Emp. Ex. 1 at 6 (1999). Back to Text
4) 4The scheduled award is for 28.8 weeks but the administrative law judge distributed it over approximately 53 weeks to avoid claimant's receiving more than two-thirds of his average weekly wage (the compensation rate for total disability). 1999 Decision and Order at 8 n. 1, 2; Dir. Br. at 7 n. 3. The Director notes that an allocation in accordance with the holding in I.T.O. Corp. of Baltimore v. Green, 185 F.3d 239, 33 BRBS 139 (CRT)(4th Cir. 1999), modifying 32 BRBS 67 (1998), might require that claimant's scheduled award be paid over the course of 81 weeks. Dir. Br. at 7 n. 3; 9 n. 4. Back to Text
5) 5This argument is without merit as the Director did assert before the administrative law judge that if claimant is entitled to a scheduled award for the injury to his right leg, employer would be liable for the full amount of such award because it will be payable for less than 104 weeks. 1999 Decision and Order at 5, 7; Dir. Statement (April 26, 1999) at 4. The Director further asserted before the administrative law judge that the Special Fund is not liable for claimant's scheduled award as claimant is not asserting any permanent increased loss of earning capacity under the Section 8(c)(21) award on which Section 8(f) relief was granted. 1999 Decision and Order at 6; Dir. Statement (April 26, 1999) at 4. Back to Text
6) 6Section 8(f)(1) provides in relevant part: If following an injury falling within the provisions of subsection (c)(1)-(20) of this section, the employee has a permanent partial disability and the disability is found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide compensation for the applicable period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater. . . . In all other cases in which the employee has a permanent partial disability, found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide in addition to compensation under subsections (b) and (e) of this section, compensation for one hundred and four weeks only. 33 U.S.C. §908(f)(1). Back to Text
7) 7In light of our disposition of this case, we need not address the Director's remaining contentions that the Special Fund is not liable for the scheduled award under Section 8(c)(2) as it runs for fewer than 104 weeks and because it does not compensate claimant for a disability arising from the same injury as the previous award under Section 8(c)(21) for which Section 8(f) relief was granted. See Dir. Br. at 6-8, 10. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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