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                                     BRB No. 00-1129

RICHARD L. GRIGGS, SR.                  )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   07/26/2001
                                             
AND 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 of Daniel L. Sarno, Jr. ,
     Administrative Law Judge, United States Department of Labor.

     Christopher R. Hedrick (Mason, Cowardin & Mason, P.C.), Newport News,
     Virginia, for self-insured employer.

     Laura J. Stomski (Howard M. Radzely, Acting Solicitor of Labor; Carol A.
     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: SMITH, DOLDER and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order (99-LHC-2036) of Administrative Law
Judge Daniel L. 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 91965); 33 U.S.C. §921(b)(3).

     Claimant was employed by employer as a pipefitter from 1948-1949, and from
1951 until his retirement in 1979.  Claimant and employer stipulated that claimant
was exposed to asbestos during the course of this employment.  Following his
retirement, claimant was diagnosed with asbestosis, and the parties agreed that he
has a 40 percent permanent pulmonary impairment.  In his Decision and Order, the
administrative law judge accepted the stipulations of  the parties as to the nature
and extent of claimant's disability, claimant's average weekly wage, claimant's
entitlement to medical benefits, and employer's liability for an attorney's fee.
See Decision and Order at 2-3.  Thus, the only issue in dispute
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 addressing employer's request for Section 8(f) relief, the administrative
law judge found that employer established that claimant suffered from a pre-existing permanent partial disability, i.e., chronic obstructive pulmonary
disease (COPD), but that employer failed to establish that this condition
materially and substantially contributed to claimant's present disability. 
Accordingly, the administrative law judge denied employer's claim for relief from
the Special Fund.

     On appeal, employer argues that the administrative law judge erred in finding
that the contribution element necessary for relief under Section 8(f) is not
satisfied in this case. The Director, Office of Workers' Compensation Programs (the
Director), responds, urging affirmance of the administrative law judge's denial of
Section 8(f) relief.

     To avail itself of Section 8(f) relief where claimant suffers from a permanent
partial disability, an employer must establish: 1) that claimant had a pre-existing
permanent partial disability; 2) that the pre-existing disability was manifest to
employer prior to the work-related injury; and 3) that the ultimate permanent
partial disability is not due solely to the work injury and that it  materially and
substantially exceeds the disability that would have resulted from the work-related
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, 514 U.S. 122, 29 BRBS 87(CRT)(1995).  In a case such as the instant
one involving a post-retirement occupational disease arising  within the
jurisdiction of the Fourth Circuit, an employer need not establish that a
claimant's pre- existing disability was manifest. See Newport News Shipbuilding
& Dry Dock Co. v. Harris, 934 F.2d 548, 24 BRBS 190(CRT) (4th Cir. 1991).

     In order to establish the contribution element, an employer must show by
medical or other evidence that the ultimate permanent partial disability is
materially and substantially greater than that which would have resulted from the
work-related injury alone.  Pursuant to the decisions of the United States Court
of Appeals for the Fourth Circuit, employer must 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 185-86, 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 1082-83, 31 BRBS
at 166-67(CRT); Farrell v. Norfolk Shipbuilding & Dry Dock Corp., 32 BRBS
118, vacated in part on other grounds on recon., 32 BRBS 283 (1998).

     We affirm the administrative law judge's denial of Section 8(f) relief. 
Contrary to employer's contention, the administrative law judge properly found that
Dr. Reid's opinion is insufficient to establish the contribution element, as he
does not state the degree of impairment resulting from asbestosis alone.  In
Carmines, the Fourth Circuit held that "[i]t is not proper simply to
calculate the current disability and subtract the disability that resulted from the
pre-existing injury." Carmines, 138 F.3d at 143, 32 BRBS at 55(CRT).  In
this case, Dr. Reid stated that claimant's COPD materially and substantially
contributed to claimant's lung impairment and to his reduced pulmonary function
test results.  He also stated, "If [claimant] merely had asbestosis, his disability
would be at least 10 percent less."  EX 1.  As the administrative law judge
properly found that this opinion contravenes Carmines as it does not state
the degree of impairment due to asbestosis alone, we affirm his finding that it is
insufficient to establish the contribution element.

     Employer also contends that the administrative law judge erred in failing to
separately discuss the opinion of Dr.  Foreman. The administrative law judge does
set forth Dr. Foreman's  opinion in his review of the medical evidence, see
Decision and Order at 4, but provides no separate  discussion of it in addressing
Section 8(f) relief.  Inasmuch as this opinion, however, is insufficient as a
matter of law to establish the contribution element, the administrative law judge
committed no error in this regard. Dr. Foreman stated that claimant's
pulmonary function test results were probably influenced more by claimant's smoking
history and possibly by pneumonia than by his asbestos-related pleural plaques. 
EX 2.   This opinion also does not quantify the level of impairment due solely to
claimant's asbestosis, and thus cannot serve as a basis for Section 8(f) relief.
See generally Carmines, 138 F.3d at 143-144, 32 BRBS at 55(CRT);
Harcum I, 8 F.3d at 185-86, 27 BRBS at 130-131(CRT).   We, therefore, affirm
the administrative law judge's denial of Section 8(f) relief.

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

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         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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