DOWCP v. Newport News Shipbld ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND No. 96-2653
DRY DOCK COMPANY,
Respondent,
and
ELLIOTT PARKMAN,
Claimant.
On Petition for Review of an Order
of the Benefits Review Board.
(94-609)
Submitted: September 2, 1997
Decided: September 18, 1997
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Davitt McAteer, Acting Solicitor of Labor, Carol A. De Deo, Asso-
ciate Solicitor, Joshua T. Gillelan, II, Senior Attorney, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Petitioner. Jonathan H. Walker, MASON & MASON,
P.C., Newport News, Virginia; Dean C. Berry, Assistant General
Counsel, NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COMPANY, Newport News, Virginia, for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Director of the Office of Workers' Compensation Programs
petitions for review of the final order of the Benefits Review Board
("BRB") of the United States Department of Labor granting respon-
dent Newport News Shipbuilding and Dry Dock Company ("Newport
News") relief from its compensation liability under 33 U.S.C. § 908(f)
(1994) of the Longshore and Workers' Compensation Act (the
"Act").* The Director argues that the Administrative Law Judge
("ALJ") erred in applying the standard for determining whether an
employer has satisfied the contribution requirement of § 908(f). For
the reasons set forth below, we affirm.
For an employer to obtain a limitation of its compensation liability
under § 908(f) in the case of a permanent partial disability, the
employer must affirmatively establish: (1) that the employee had an
_________________________________________________________________
*The BRB never addressed the merits of the appeal. On September 12,
1996, the BRB sent the parties a notice stating that pursuant to the provi-
sions of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the BRB relating to claims under the Act were deemed to have
been affirmed if the case had been pending before the BRB for one year
by September 12, 1996. Because Parkman's appeal met these criteria, the
BRB informed the parties that the ALJ's decision had been effectively
affirmed by the BRB on September 12, 1996, for purposes of their rights
to obtain review in this court.
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existing permanent partial disability, (2) that was manifest to the
employer, and (3) that the ultimate permanent partial disability mate-
rially and substantially exceeded the disability which would have
resulted in the absence of the pre-existing disability. Director, OWCP
v. Newport News Shipbuilding (Harcum), 8 F.3d 175, 182-83 (4th Cir.
1993), aff'd, 514 U.S. 122 (1995).
Elliot Parkman, a ship repairman and construction worker, was
exposed to airborne asbestos dust and fibers throughout the course of
his employment with Newport News from 1950 until 1978. On March
2, 1992, Parkman was diagnosed with work-related asbestosis.
Parkman then filed a claim for permanent partial disability benefits
under the provisions of the Act. The parties stipulated that Parkman
suffered a twenty-five percent impairment and was entitled to com-
pensation. Those benefits are not in dispute.
In a proceeding before the ALJ, Newport News sought relief pursu-
ant to § 908(f) for pre-existing disability. In support of its claim for
§ 908(f) relief, Newport News developed Parkman's medical history.
In 1969, Parkman injured his chest in a fall from a boat. His condition
was diagnosed as pneumothorax. A chest x-ray taken of Parkman in
1987 was interpreted as showing pulmonary fibrosis and emphysema.
In addition, his physician's office notes from 1990 and 1991 indicate
that Parkman had fibrosis, emphysema, and chronic bronchitis.
Newport News also presented two reports prepared by Dr. J.H.
Hall. Hall concluded that Parkman had pre-existing fibrosis (caused
by the 1969 pneumothorax), chronic bronchitis, and emphysema and
that these pre-existing conditions were permanent and serious. Hall
opined as follows:
Mr. Parkman's lung impairment, AMA rating and disability
are not caused by his asbestosis alone, but rather his lung
impairment, AMA rating and disability are materially con-
tributed to and made materially and substantially worse by
his pre-existing fibrosis and [chronic obstructive pulmonary
disease ("COPD")]. Mr. Parkman's asbestosis is rather mild
. . . the fibrosis and COPD are a major cause of Mr. Park-
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man's lung impairment, and hence his AMA rating and dis-
ability.
This evidence was uncontradicted by the Director.
The ALJ granted Newport News' request for § 908(f) relief:
Dr. Hall concluded that while claimant has asbestosis, his
lung impairment and disability were not solely the result of
his asbestosis but were contributed to and made materially
and substantially worse by his pre-existing fibrosis, emphy-
sema, and chronic bronchitis. Dr. Hall's opinion is well rea-
soned, consistent with the medical records, and
uncontradicted, and I accept it as credible. I therefore con-
clude that Mr. Parkman's pre-existing disabilities contrib-
uted to his disability from asbestosis.
The Director asserts that Newport News' evidence was insufficient
quantification under Harcum. In Harcum , this court reversed the
ALJ's decision to assess the Special Fund for compensation pay-
ments, because the ALJ and the BRB failed to require a showing of
the "materiality prong" of the contribution element. The court then
noted that Newport News did not submit any evidence supporting a
finding of "materiality." 8 F.3d at 186.
The ALJ in Harcum concluded that the Claimant's pre-existing
permanent partial disability combined with his subsequent injury to
cause a "greater" degree of disability than that which would have
resulted solely from the work-related injury. This court found that this
conclusion stopped short of identifying whether the"ultimate perma-
nent partial disability is materially and substantially greater than a dis-
ability caused by the work related injury only." The court also noted
that, in order to satisfy this prong, the employer must show "quantifi-
cation" of the level of impairment that would result from the work-
related injury alone:
an employer must present evidence of the type and extent of
disability that the claimant would suffer if not previously
disabled when injured by the same work-related injury.
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Once the employer establishes the level of disability in the
absence of a pre-existing permanent partial disability, an
adjudicative body will have a basis on which to determine
whether the ultimate permanent partial disability is materi-
ally and substantially greater.
Id. at 185-86.
We hold that Harcum does not bar § 908(f) relief in this case. In
Harcum, the doctor's report only opined that the two conditions
"combined to create a greater impairment." In addition, although in
Harcum Newport News provided the pre-existing and ultimate
impairment percentages, these statistics did not show to what degree
the pre-existing condition interacted with the work-related injury.
Finally, the ALJ found only that the pre-existing injury caused a
"greater" ultimate disability, rather than the"materially and substan-
tially greater" finding that is required by § 908(f). See 8 F.3d at 186
n.9.
Here, Hall's report specifically concluded that the overall disability
was "materially and substantially greater" than it would have been
with asbestosis alone. In addition, Hall's report showed that Park-
man's pre-existing conditions were "extensive" and that the degree of
lung impairment attributable to his asbestosis alone was "mild." The
ALJ found this conclusion to be supported by Parkman's medical his-
tory, including the medical reports of several doctors, as well as x-ray
evidence. Finally, the ALJ specifically adopted Hall's findings that
Parkman's lung impairment was "made materially and substantially
worse" by his pre-existing conditions.
Therefore, we find that substantial evidence supported the ALJ's
determination that Newport News satisfied the third element for
§ 908(f) relief. See See v. Washington Metro. Area Transit Auth., 36
F.3d 375, 380 (4th Cir. 1994) (standard of review). Harcum did not
require rigid adherence to numbers, percentages, or quotas. Instead,
it required quantification of the level of impairment from the work-
related injury alone. 8 F.3d at 185-86. Here, the evidence that Park-
man's asbestosis was "mild," when compared with his "extensive"
ultimate lung impairment, was sufficient to show quantification.
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Accordingly, the order of the Benefits Review Board is affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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