UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,

v.
                                                                     No. 96-2659
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.

On Petition for Review of an Order
of the Benefits Review Board.
(95-3855-BRB)

Submitted: January 13, 1998

Decided: March 20, 1998

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Melissa R. Link, Jonathan H. Walker, MASON & MASON, P.C.,
Newport News, Virginia, for Petitioner. J. Davitt McAteer, Acting
Solicitor of Labor, Carol A. De Deo, Associate Solicitor, Luann B.
Kressley, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Newport News Shipbuilding & Dry Dock Company ["Newport
News"] petitions for review of an order of the Department of Labor's
Benefits Review Board ["the Board"]. The Board summarily
affirmed* the decision of an administrative law judge ["ALJ"] grant-
ing Charles W. Miles' claim for compensation benefits for asbestosis
under the Longshore and Harbor Workers' Compensation Act
["LHWCA"], 33 U.S.C. §§ 901-950 (1994), and denying Newport
News' request for relief under § 908(f) for pre-existing disability.
Newport News claims that the ALJ erred in determining that it did not
establish the contribution requirement of § 908(f). For the reasons set
forth below, we affirm.

Charles Miles, a pipecoverer and machinist, was exposed to air-
borne asbestos dust and fibers throughout the course of his employ-
ment with Newport News from 1952 until 1991. On March 4, 1992,
Miles was diagnosed with work-related asbestosis. Miles then filed a
claim for permanent partial disability under the provisions of the
LHWCA. The parties stipulated that Miles suffered a forty-five per-
cent impairment and was entitled to compensation. In a proceeding
before the ALJ, Newport News sought relief pursuant to § 908(f) for
pre-existing disability.

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
existing permanent partial disability before the occurrence of the
_________________________________________________________________
*The Board never addressed the merits of the appeal. The ALJ's deci-
sion was affirmed by operation of law. See Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,
§ 101(d), 110 Stat. 1321-29 (1996).

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work-related injury, (2) that the pre-existing permanent partial dis-
ability was manifest to the employer prior to the subsequent work-
related injury, and (3) that the ultimate permanent partial disability
materially and substantially exceeds the disability that would have
resulted in the absence of the pre-existing disability. See Director,
OWCP v. Newport News Shipbuilding & Dry Dock Co. (Harcum), 8
F.3d 175, 182-83 (4th Cir. 1993), aff'd, 514 U.S. 122 (1995).

The Board summarily affirmed the ALJ's decision denying New-
port News' request for § 908(f) relief because while Newport News
had established a pre-existing permanent partial disability and mani-
festation, it had not established contribution. Specifically, the ALJ
concluded that Newport News' physician's (Dr. Hall) medical opin-
ion that twenty-five percent of the impairment results from heart dis-
ease and that twenty percent of the impairment is due to asbestosis
was mere speculation and conjecture and was therefore insufficient
under Harcum. The ALJ discredited Hall's opinion because Hall did
not explain how he quantified the level of impairment resulting from
the asbestosis alone.

We review the Board's decision for errors of law and to determine
whether the Board observed its statutorily-mandated standard for
reviewing the ALJ's factual findings. See Newport News Shipbuilding
& Dry Dock Co. v. Director, OWCP (Hess), 681 F.2d 938, 941 (4th
Cir. 1982). In turn, the Board's review of the ALJ's factual findings
is limited by the requirement that "[t]he findings of fact in the deci-
sion under review by the Board shall be conclusive if supported by
substantial evidence in the record considered as a whole." 33 U.S.C.
§ 921(b)(3) (1994). Because the ALJ's decision was affirmed by
default, there is no Board decision for the court to review; the ALJ's
findings of fact must therefore be upheld if supported by substantial
evidence.

We conclude that substantial evidence in the record as a whole sup-
ports the ALJ's factual findings. The record establishes that in 1982,
Miles was diagnosed with coronary atherosclerosis and then angina
pectoris and that thereafter Miles was hospitalized several times with
diagnoses of acute bronchitis, abnormal liver, anemia, hypercho-
lesterolemia, with the major diagnosis as coronary artery disease. Fur-
ther, the record indicates that in late 1991, a chest X-ray was

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abnormal. The record also establishes that Miles has asbestosis. The
record includes two reports prepared by Dr. Hall. Hall concluded that
Miles had pre-existing heart disease which contributed to and wors-
ened Miles' asbestosis. Hall opined,

          Mr. Miles' pulmonary examination of March 4, 1992, estab-
          lished a class 3 permanent impairment of 25-45 percent. The
          Employer agreed with Claimant that his extent of disability
          is presently 45 percent. However, the AMA rating and his
          disability are not caused by his asbestosis alone. Mr. Miles'
          lung impairment, AMA rating and disability are materially
          contributed to and made materially and substantially worse
          by his pre-existing heart disease. At least 25 percent of Mr.
          Miles' present disability is cause by this per [sic]-existing
          heart disease.

This evidence was uncontradicted by the Director.

We conclude that, based on the substantial evidence in the record
as a whole, the ALJ did not err in concluding that Newport News did
not establish that Miles' ultimate permanent partial disability is mate-
rially and substantially greater than the extent of impairment that
would result from asbestosis alone. See Harcum , 8 F.3d at 185-86.
The ALJ found that Hall's unsupported medical opinion testimony
was not sufficient to constitute "substantial evidence." See Hobbs v.
Clinchfield Coal Co., 45 F.3d 819, 822 (4th Cir. 1995); Shrader v.
Califano, 608 F.2d 114, 118 & n.4 (4th Cir. 1979); see also Smith v.
Director, OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988) (stating that
medical witness' credibility is question for trier of fact who can weigh
evidence and draw inferences). Thus, because we find that the ALJ's
findings were supported by substantial evidence in the record as a
whole and that the ALJ did not err, we affirm the Board's summary
order affirming the ALJ's decision by default. See Hess, 681 F.2d at
941.

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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