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                                 BRB No. 97-1299

FRANK BOSSE                             )
          Claimant                      )    DATE ISSUED:   06/16/1998   

     v.                                 )
     and                                )
COMPANY                                 )
          Employer/Carrier-             )
          Respondents                   )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Petitioner                    )    DECISION and ORDER

     Appeal of the Decision and Order of Jeffrey Tureck, Administrative
     Law Judge, United States Department of Labor.

     Richard F. Van Antwerp and Thomas R. Kelly (Robinson, Kriger &
     McCallum, P.A.), Portland, Maine, for employer/carrier.

     LuAnn Kressley  (Martin Krislov, Deputy Solicitor of National
     Operations; 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:  HALL, Chief Administrative Appeals Judge, SMITH and
     McGRANERY, Administrative Appeals Judges.  


     The Director, Office of Workers' Compensation Programs (the Director), 
appeals the Decision and Order (96-LHC-175) of Administrative Law Judge
Jeffrey Tureck 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).  

     The only issue presented by this appeal is whether the administrative
law judge erred in awarding employer relief pursuant to Section 8(f) of the
Act, 33 U.S.C. §908(f).  Claimant commenced working for employer in
1960, where he was exposed to asbestos during his duties a painter and a
stage builder.  In 1975, claimant was transferred to employer's Harding
facility, a non-covered situs, where he worked as a maintenance carpenter
and was no longer exposed to asbestos.  Prior to 1990, claimant had been
diagnosed as suffering from a myriad of health conditions including chronic
psoriasis and dermatitis of the foot, chronic atrial fibrillation, high
blood pressure, near blindness in the right eye, carpal tunnel problems,
torn cartilage of the knee, chronic indigestion and chronic diabetes.  In
1992, while he was still working, claimant was diagnosed with obstructive
lung disease (emphysema) due to smoking and asymptomatic asbestos-related
pleural lung disease.  In 1993, he was hospitalized due to congestive heart
failure and, in addition, underwent treatment for gastrointestinal pain and
bleeding.  Although he went back to work in June 1993, he could not do his
job and left permanently after a few days.  Thereafter he was diagnosed with
stomach cancer, requiring surgical removal of his stomach.   During one of
the stomach surgeries, his gall bladder also was removed, and he experienced
kidney failure and an incisional hernia.  Finally, based on a CT scan and
pulmonary function tests performed on July 20, 1994, claimant was
definitively diagnosed by Dr. Killian as suffering from asbestosis.  On
September 8, 1994, claimant filed a claim under the Act, arguing that he was
an involuntary retiree entitled to permanent total disability compensation
due to the combination of his pre-existing conditions and asbestosis. 
Claimant argued alternatively that if  he were found to be a voluntary
retiree, he was entitled to compensation for a 46 percent permanent partial
disability under Section 8(c)(23), 33 U.S.C.§908(c)(23)(1994). 

     The administrative law judge found that claimant was a voluntary
retiree.  Crediting Dr. Killian's opinion that of claimant's overall
cardiopulmonary impairment of  54 percent,  27 percent was respiratory in
origin, with 13.5 percent of that amount being due to asbestosis, the
administrative law judge awarded him compensation under Section 8(c)(23) for
a 13.5 percent impairment.[1]   The
administrative law judge rejected the Director's contention that employer
was not entitled to Section 8(f) relief because of its failure to comply
with the requirements of Section 8(f)(3), 33 U.S.C. 908(f)(3)(1994). 
Finally, after characterizing the Director's June 29, 1996, position letter,
in which he asserted that none of the requirements for Section 8(f) relief
had been met in this case, as a blanket denial unrelated to the evidence in
this case, the administrative law judge summarily awarded employer Section
8(f) relief.                    

     The Director appeals, arguing that  the administrative law judge's award
of Section 8(f) relief should be reversed on several grounds. Initially,
while noting the Board's position to the contrary in Ehrentraut v. Sun
Ship, Inc., 30 BRBS 146 (1996), the Director argues that the manifest
requirement is not satisfied in this case as a matter of law because the
medical records documenting claimant's alleged pre-existing conditions date
back to 1978, whereas his last exposure to asbestos occurred in 1975.  In
addition, the Director argues that the administrative law judge's award of
Section 8(f) relief should be reversed as a matter of law because he erred
in applying the contribution standard applicable in the case of permanent
total disability, and because he factored out all of claimant's non-employment related contributing causes and held employer liable only for the
13.5 percent of claimant's cardiopulmonary impairment attributable to
claimant's asbestosis.  In the alternative, the Director contends that the award
of Section 8(f) relief must be vacated and the case remanded because in entering
this award the administrative law judge failed to comply with the requirements of
the Administrative Procedure Act, 5 U.S.C. §557(C)(3)(A) (the APA).[2]   Employer responds, urging affirmance.

   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 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. Bath Iron Works Corp. [Johnson],
129 F.3d 45, 31 BRBS 155 (CRT) (1st Cir. 1997); Two "R" Drilling Co., Inc.
v. Director, OWCP, 894 F.2d 748, 23 BRBS 34 (CRT) (5th Cir. 1990); Director,
OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th Cir. 1982),
cert. denied, 459 U.S. 1104 (1983); C&P Telephone Co. v. Director,
OWCP, 564 F.2d 503, 6 BRBS 399 (D.C. Cir. 1977). 

   We are unable to affirm  the administrative law judge's award of Section 8(f)
relief. Initially, the Director correctly asserts that although the award in this case was for permanent partial
disability compensation under Section 8(c)(23), the administrative law judge erroneously cited the Section 8(f)
contribution standard applicable in a case involving an award of  permanent total disability compensation. Whereas the
employer must show that the employee's disability is not due solely to the most recent injury to establish contribution
under Section 8(f) in cases where the employee is totally disabled, an additional burden is placed on the employer in the
case of a permanently partially disabled employee: employer must also show that the current permanent partial disability
is materially and substantially greater than would have resulted from the subsequent injury alone.  Newport
News Shipbuilding & Dry Dock Co. v. Director, OWCP [Harcum II], 131 F.3d 1079,
31 BRBS 164(CRT) (4th Cir. 1997). 

   In addition, the case must be remanded because the administrative erred
in awarding Section 8(f) relief based only on a finding that the Director did not
submit evidence disproving the employer's entitlement.  In so doing, the administrative law judge did not
discuss the relevant evidence or  provide any explanation as to the basis for his  Section 8(f) findings.
See Decision and Order at 7.  Contrary to the administrative law judge's analysis, employer bears
the burden of proving each of the elements required for Section 8(f) relief. Director, OWCP v.
Newport News Shipbuilding & Dry Dock Co. [Harcum], 8 F.3d 175, 27 BRBS
116 (CRT)(4th Cir. 1993), aff'd on other grounds, 514 U.S. 122
(1995).  Moreover, decisions under the Act must comply with the APA, which requires that the
administrative law judge adequately detail the rationale behind his decision,  analyze and discuss the medical
evidence of record, and explicitly set forth the reasons for his acceptance or rejection of such evidence, in his
decision.  5 U.S.C. §557(c)(3)(A).  In light of the administrative law judge's failure to analyze the issue
of Section 8(f) contribution in accordance with the legal standard applicable in the case of a permanently
partially disabled employee, his erroneous application of  the burden of proof, and his failure to comply with
the requirements of the APA, we vacate his award of Section 8(f) relief and remand the case for him to
reconsider this issue in light of all of the relevant evidence in accordance with the applicable legal standards
consistent with the requirements of the APA.[3] See
generally Shrout v.  General Dynamics Corp., 27 BRBS 160, 165
(1993)(Brown, J., dissenting).

   We note that  the United States Court of Appeals for the First Circuit,
in whose jurisdiction this case arises, has recently addressed the manifest requirement in a case involving a
voluntary retiree.  In Bath Iron Works Corp. v. Director, OWCP [Reno], 136 F.3d 34 (1st Cir.
1998), the court held, consistent with the position of the Board in Ehrentraut, that the manifest
requirement of Section 8(f) applies  in such cases.  In contrast, however, to the Board's holding in
Ehrentraut that a pre-existing disability need only be manifest prior to the compensable injury, the
First Circuit held that the pre-existing permanent partial disability must be manifest prior to the claimant's
retirement because otherwise the potential for discrimination does not exist.  Inasmuch as Reno is
controlling in this case, on remand the administrative law judge should evaluate the manifest requirement
consistent with this decision.[4]    Moreover, in determining
whether the contribution element of Section 8(f) has been satisfied, he should be aware that only those pre-existing disabilities which played a part in claimant's compensable respiratory impairment under Section
8(c)(23) can properly serve as the basis for Section 8(f) relief.  Johnson, 129 F.3d at 53, 31 BRBS
at 160-161 (CRT); Fineman v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104, 111
(1993); Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78, 85 (1989).

   Accordingly, the administrative law judge's findings with regard to
employer's entitlement to Section 8(f) relief are vacated, and the case is
remanded for further consideration of this issue consistent with this


                       BETTY JEAN HALL, Chief
                       Administrative Appeals Judge

                       ROY P. SMITH
                       Administrative Appeals Judge

                       REGINA C. McGRANERY
                       Administrative Appeals Judge

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1)Dr. Killian testified that claimant's emphysema, obesity, congestive cardiac failure, atrial fibrillation, diabetes, hypertension, and chronic renal insufficiency, as well as his status as post-surgical cholecystectomy were all contributing factors to his respiratory impairment. EX-8 at 8-11. Back to Text
2)The Director does not dispute that claimant's pre-existing conditions were serious, lasting physical problems sufficient to satisfy the pre-existing permanent partial disability requirement of Section 8(f) entitlement. See generally Wiggins v. Newport News Shipbuilding & Dry Dock Co., 31 BRBS 142 (1997). Back to Text
3)We reject the Director's invitation to hold that record evidence is insufficient as a matter of law to establish the manifest and contribution requirements for Section 8(f) entitlement. The Board has no de novo review authority, and the administrative law judge has not, as yet, considered the record evidence in relation to the manifest and contribution requirements for Section 8(f) relief in the first instance. See generally Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT)(5th Cir. 1991). We further note that while the Director argues that there is no medical evidence in the record dating prior to 1978 sufficient to render claimant's pre-existing conditions manifest, there is, in fact, one medical report dated June 25, 1975 which reflects that claimant was suffering from hypertension. See EX-1. Back to Text
4)The United States Court of Appeals for the First Circuit recognized in Reno that Section 8(f) was designed for the very specific reason of removing the discriminatory incentive created by holding the last employer liable for the results of an aggravating injury. 136 F.3d at 44. Accordingly, we agree with the Director that it was irrational for the administrative law judge to have awarded employer Section 8(f) relief where he eliminated the effects of claimant's pre-existing conditions from the award, holding employer liable only for the percentage of impairment due to claimant's asbestosis. Pursuant to the aggravation rule, which is applicable in cases involving voluntary retirees receiving compensation under Section 8(c)(23,) if the work-related injury aggravates, accelerates, contributes to, or combines with a previous infirmity, disease or underlying condition, claimant is entitled to be compensated for the entire resultant condition. See SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 23 BRBS 113 (CRT)(9th Cir. 1990). On remand, therefore, Section 8(f) relief is available to employer only if the award of compensation is for claimant's total respiratory impairment, consistent with controlling case authority that both claimant's right to compensation and employer's entitlement to Section 8(f) relief are premised on application of the aggravation rule. See Reno, 136 F.3d at 40-42. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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