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                                 BRB No. 99-1054

LARRY D. WARD                           )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   07/11/2000
                                             7/11/2000
& DRY DOCK COMPANY                      )
                                        )
          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 Awarding Benefits and Denying 8(f)
     Relief of Daniel A. Sarno, Jr., Administrative Law Judge, United States
     Department of Labor.

     Lawrence P. Postol (Seyfarth, Shaw, Fairweather & Geraldson), Washington
     D.C., for self-insured employer.

     Miriam D. Ozur (Henry L. Solano, 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, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order Awarding Benefits and Denying 8(f)
Relief (97-LHC-2140) of Administrative Law Judge Daniel A. Sarno, Jr., 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 injured his back on December 11, 1987, requiring surgery for a
herniated disc.  He returned to light duty with employer on May 16, 1989, but
reinjured his back on June 16, 1989, requiring a second back surgery.  He has been
unable to return to his usual employment and sought benefits under the Act. 
Employer sought relief from continuing compensation benefits pursuant to Section
8(f) of the Act, 33 U.S.C. §908(f), based on claimant's pre-existing back
condition stemming from the 1987 injury.[1] 

     The administrative law judge found that although employer and claimant
stipulated that claimant had reached maximum medical improvement, this stipulation
is not binding on the Director.  He then found that the evidence does not establish
that claimant reached maximum medical improvement; thus, his condition is not
permanent and Section 8(f) is inapplicable.  Alternatively, the administrative law
judge found that employer did not prove a necessary element of Section 8(f) relief,
as it failed to quantify claimant's disability resulting from the June 1989 injury,
with the result that the record lacks sufficient evidence to establish that
claimant's disability as a result of the combination of the 1987 and 1989 injuries
is materially and substantially greater than his disability from the 1989 injury
alone.  Therefore, the administrative law judge denied employer relief from
continuing compensation liability under Section 8(f).

     Employer contends on appeal that the administrative law judge erred in finding
that permanency was not established.  In addition, employer contends that the
administrative law judge erred in rejecting the opinions of Drs. Reid and Garner,
and in finding that the evidence does not establish that claimant's disability as
a result of the 1987 and 1989 back injuries combined is materially and
substantially greater than it would have been due to the 1989 injury alone.  The
Director responds, agreeing that claimant's 1989 back injury resulted in a
permanent disability.  However, the Director contends that Dr. Reid's opinion is
legally insufficient to establish that claimant's disability is not the result of
the 1989 injury alone.  The Director asserts that employer must establish the loss
of wage-earning capacity with and without consideration of the pre-existing
disability in order to meet its burden in this regard and that merely the fact that
claimant could or could not work "light duty" is insufficient.  He thus urges
affirmance of the denial of Section 8(f) relief.

     Initially, the Director concedes that claimant has sustained a permanent
disability as a result of his back injury, and thus that Section 8(f) is
applicable. The administrative law judge found that employer offered a variety of
dates between 1990 and 1995, and essentially concluded that because employer could
not prove a date of maximum medical improvement, Section 8(f) relief must be
denied.  However, it is clear that at least by the stipulated date of November 13,
1995, claimant's disability was one of a lasting and indefinite duration, and thus,
claimant was permanently disabled at least by this date. See, e.g., Watson v.
Gulf Stevedore Corp., 400 F.2d 649, pet. for rehearing denied sub nom. Young
& Co. v. Shea, 404 F.2d 1059 (5th Cir. 1968), cert. denied, 394 U.S. 976
(1969).  Accordingly, we reverse the administrative law judge's finding that the
permanency of claimant's disability has not been established, and thus hold that
Section 8(f) is potentially applicable. See generally Sinclair v. United Food
& Commercial Workers, 23 BRBS 148 (1989).  As neither party seeks an earlier
date of permanency, claimant is entitled to permanent disability benefits on this
date.

     Section 8(f) shifts the 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.  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 but is made materially and substantially greater as a result of the prior disability.  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 and 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, 514 U.S. 122, 29 BRBS 87(CRT)
(1995).  If employer fails to establish any of these elements, it is not entitled to Section 8(f) relief. Id.

     In order to satisfy the contribution element, employer must show by medical evidence or otherwise that the ultimate
permanent partial disability is materially and substantially greater than that which would have resulted from the work-related injury alone.  We affirm the administrative law judge's conclusion that this standard is not met in this case.  Pursuant
to the decisions of the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, an
employer may show that a pre-existing disability renders a claimant's overall disability materially and substantially greater
by quantifying the disability that ensues from the work injury alone and comparing it to the pre-existing disability. 
Harcum I, 8 F.3d at 185-186, 27 BRBS at 130-131 (CRT); see also Carmines, 138 F.3d at 143-144, 32
BRBS at 55 (CRT); Harcum II, 131 F.3d at 1082-1083, 31 BRBS at 166-167 (CRT); Director, OWCP v. Bath
Iron Works Corp. [Johnson], 129 F.3d 45, 31 BRBS 155(CRT) (1st Cir. 1997); Farrell v. Norfolk
Shipbuilding & Dry Dock Corp., 32 BRBS 118, vacated in part on other grounds
on recon., 32 BRBS 283 (1998); Quan v. Marine Power & Equipment, 31 BRBS
178 (1997), aff'd sub nom. Marine Power & Equipment v. Dep't of Labor, 203
F.3d 664, 33 BRBS 204(CRT) (9th Cir. 2000).

     Employer in the instant case contends that Dr. Reid's opinion that claimant
would have been able to return to light duty at the shipyard following the 1989
injury if not for his weakened back following the 1987 surgery is sufficient to
establish that claimant's disability is not solely due to the last injury.  The
administrative law judge found that Dr. Reid's opinion was not sufficient to meet
this standard as it did not quantify disability due to the June 1989 injury alone. 
We agree.  While Dr. Reid opined that claimant suffered a 5 percent impairment
following the 1987 injury, he does not discuss the level of impairment which
claimant suffered due to the 1989 injury alone.[2] 
 Moreover, the administrative law judge  found that Dr. Reid does not refer to any
evidence justifying his conclusion nor does he explain how he arrived at it.  
Thus, the administrative law judge properly concluded he cannot "examine the logic"
and "evaluate the evidence" as required under Carmines.  Therefore, as Dr.
Reid's opinion is insufficient to establish that claimant's ultimate permanent
partial disability is materially and substantially greater than would have ensued
from his back injury alone, we affirm the administrative law judge's finding that
the contribution element has not been established and his consequent denial of
Section 8(f) relief.

     Accordingly, the administrative law judge's denial of Section 8(f) relief 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)Prior to the hearing, claimant and employer stipulated that claimant is entitled to continuing permanent partial disability benefits pursuant to 33 U.S.C. §908(c)(21). See Decision and Order at 2. Back to Text
2)In addition, contrary to employer's contention, the fact that Dr. Reid's opinion is uncontradicted is irrelevant. Carmines, 138 F.3d at 142, 32 BRBS at 48 (CRT). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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