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                                   BRB No. 01-0769


WALTER A. WILKERSON                     )
                                        )
          Claimant                      )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   05/20/2002
                                             
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 Fletcher E. Campbell, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Jonathan H. Walker (Mason, Cowardin & Mason, P.C.), Newport News,
     Virginia, for self-insured employer.

     Peter B. Silvain, Jr., (Eugene Scalia, Solicitor of Labor; John F.
     Depenbrock, Jr., 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:  DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
     Administrative Appeals Judges. 

     PER CURIAM:

     Employer appeals the Decision and Order (00-LHC-2978) of Administrative Law
Judge Fletcher E. Campbell, 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, an outside machinist, was exposed to airborne asbestos dust and
fibers for approximately 35 years during the course of his employment with
employer.  Claimant retired in 1991, and he was diagnosed with asbestosis in 1997.

     In his Decision and Order, the administrative law judge accepted the
stipulations between employer and claimant entitling claimant to permanent partial
disability compensation pursuant to 33 U.S.C. §908(c)(23), for a 10 percent
work-related impairment.  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 failed to demonstrate that claimant's pre-existing
hypertension materially or substantially contributed to his present disability. 
Accordingly, the administrative law judge denied employer's request for relief from
the Special Fund.

     On appeal, employer challenges the administrative law judge's denial of
Section 8(f) relief, arguing that the administrative law judge erred in failing to
find that it satisfied the contribution element of Section 8(f).  The Director,
Office of Workers' Compensation Programs (the Director), responds, urging
affirmance of the administrative law judge's decision.

     To avail itself of Section 8(f) relief where claimant suffers from a permanent
partial disability, employer must affirmatively 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;[1]  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 on other grounds, 514 U.S. 122, 29 BRBS 87 (1995).  If employer fails
to establish any of these elements, it is not entitled to Section 8(f) relief.
Id.  
     Employer contends that the administrative law judge erred by failing to find
that it established the contribution element.  In order to establish the
contribution element for Section 8(f) relief in a case where claimant is allegedly
permanently partially disabled,[2]  employer must
establish that claimant's partial disability is not due solely to the subsequent
injury, and that it is materially and substantially greater than that which would
have resulted from the subsequent injury alone.  The United States Court of Appeals
for the Fourth Circuit, within whose jurisdiction this case arises, has addressed
this standard in several cases.  In Harcum I, 8 F.3d 175, 27 BRBS 116 (CRT),
the Fourth Circuit held that in order to establish contribution in a permanent
partial disability case, employer must show by medical evidence or otherwise that
the ultimate permanent partial disability materially and substantially exceeds the
disability as it would have resulted from the work injury alone.  The court stated
that a showing of this kind requires quantification of the level of the disability
that would ensue from the work-related injury alone. Id., 8 F.3d at 185, 27
BRBS at 130-131 (CRT).  Subsequently, in Carmines, 138 F.3d 134, 32 BRBS 48
(CRT), the Fourth Circuit applied the Harcum I holding in the context of an
employer's seeking Section 8(f) relief for a permanent partial disability award to
a claimant for work-related asbestosis.  The court denied employer Section 8(f)
relief because employer was unable to establish what degree of disability claimant
would have suffered from the asbestosis alone, specifically holding that employer
failed to meet its burden to quantify the disability that claimant would have
suffered absent any pre-existing conditions.  The court held that it is not proper
simply to calculate the current disability and to subtract from this the disability
that resulted from the pre-existing disability. Id., 138 F.3d at 143, 32
BRBS at 55 (CRT).  The court stated that without the quantification of the
disability due solely to the subsequent injury, it is impossible for the
administrative law judge to determine that claimant's ultimate disability is
materially and substantially greater than it would have been without the pre-existing disability. Id.; see also Harcum II, 131 F.3d 1079, 31 BRBS 164
(CRT).

     We reject employer's assertion that the administrative law judge erred in
concluding that employer did not meet its burden of establishing the contribution
element.  In the instant case, the administrative law judge properly held that the
opinions of Drs. Tornberg and Donlan are legally insufficient to establish the
contribution element as they do not quantify the disability that would ensue from
the current work injury alone in accordance with the Fourth Circuit's decisions in
Harcum and Carmines.  Specifically, the administrative law judge
found Dr. Tornberg's opinion insufficient to meet employer's burden in two
respects.  First, Dr. Tornberg's conclusion that claimant's hypertension would
produce a three percent disability rating was based upon a study published in a
medical journal showing that there is an approximate three percent decrease in FEV1
and FVC values due to hypertension and did not describe the actual effect, if any,
that claimant's hypertension would have on his pulmonary function.  Moreover, as
the administrative law judge found, this method of quantification was rejected by
the Fourth Circuit in Carmines, 138 F.3d 134, 32 BRBS 48(CRT), which stated
that it is not proper to simply calculate claimant's current disability and
subtract the disability that resulted from the pre-existing disability.  Next, the
administrative law judge concluded that Dr. Tornberg's failure to give more than
a conclusory statement or give support for his opinion rendered his quantification
opinion inadequate. See Decision and Order at 6.

     Moreover, we affirm the administrative law judge's conclusion that the opinion
of Dr. Donlan also cannot meet employer's burden of proof on this issue.  The
administrative law judge determined, inter alia, that Dr. Donlan provided
no medical explanation for his change in opinion regarding claimant's impairment,
and that as Dr. Donlan did not adequately quantify the level of impairment caused
by claimant's second injury, his opinion could not establish that claimant's pre-existing injury materially and substantially contributed to his overall impairment.
See Decision and Order at 6.  Accordingly, as the administrative law judge
properly held that the opinions of Drs. Tornberg and Donlan are legally
insufficient to establish that claimant's permanent partial disability is
materially and substantially greater due to the contribution of his pre-existing
hypertension, we affirm this finding.  Consequently, the administrative law judge's
finding that employer is not entitled to Section 8(f) relief is affirmed.

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

     SO ORDERED.



                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1)In a case involving a post-retirement occupational disease arising within the jurisdiction of the Fourth Circuit, as in the instant case, an employer need not establish that a claimant's pre-existing disability was manifest. Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548, 24 BRBS 190 (CRT)(4th Cir. 1991). Back to Text
2)In the instant case, the administrative law judge found that employer had demonstrated that claimant suffered from hypertension as early as 1992; the administrative law judge did not, however, address the issue of whether this condition constituted a permanent partial disability since he denied employer's request for Section 8(f) relief on other grounds. See Decision and Order at 5. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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