UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,

v.
                                                                   No. 96-2546
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.

On Petition for Review of an Order
of the Benefits Review Board.
(94-4001-BLA)

Argued: June 3, 1997

Decided: September 12, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Melvin Mesnard, SEYFARTH, SHAW, FAIR-
WEATHER & GERALDSON, Washington, D.C., for Petitioner.
LuAnn Blanche Kressley, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent.
ON BRIEF: J. Davitt McAteer, Acting Solicitor of Labor, Carol A.
De Deo, Associate Solicitor, Janet R. Dunlop, Counsel for Longshore,
UNITED STATES DEPARTMENT OF LABOR, Washington, 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Unpublished opinions are not binding precedent in this circuit.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 affirmed1
the decision of an administrative law judge ("ALJ") who granted Jac-
kie H. Harcum's claim under the Longshore and Harbor Workers'
Compensation Act ("LHWCA"), 33 U.S.C. #8E8E # 901-950 (1994), and
denied Newport News' request for relief under § 908(f) for pre-
existing disability.

Jackie Harcum filed a claim for compensation benefits against his
employer, Newport News, for a disability resulting from an October
21, 1985, employment injury to his back. An ALJ first heard the case
on October 20, 1989, and found that Newport News had established
that Harcum's pre-existing disability, combined with his more recent
_________________________________________________________________
1 The Board never addressed the merits of the appeal. On September
12, 1996, the Board sent the parties a notice stating that pursuant to the
provisions of Public Law Number 104-134, enacted on April 26, 1996,
all appeals to the Board relating to claims under LHWCA which have
been pending before the Board for more than one year, shall, if not acted
upon before September 12, 1996, be considered affirmed by the Board.
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.
L. No. 104-134, § 101(d), 110 Stat. 1321-218 (1996). Because Harcum's
appeal met these criteria, the Board informed the parties that the ALJ's
decision had been effectively affirmed by the Board on September 12,
1996, for purposes of their rights to obtain review in this court.

                    2
injury, caused a greater degree of disability than would have resulted
solely from the injury Harcum sustained on October 21, 1985. In his
order dated March 28, 1990, the ALJ found Newport News was enti-
tled to § 8(f)2 relief because it had established each of the required
elements. Specifically, the ALJ found that Harcum's pre-existing dis-
ability "combined with his last injury and caused a greater degree of
disability than that which would have resulted solely from the final
injury." J.A. 19. Therefore, the ALJ concluded that Harcum's disabil-
ity was within the scope of § 8(f) of LHWCA so that Newport News
was entitled to relief. The Director appealed that decision to the
Board, which affirmed the ALJ's award of § 8(f) relief.

On an ensuing petition for review to this court we reversed the
award of § 8(f) relief and remanded to the ALJ to re-evaluate Har-
cum's claim. Director, OWCP v. Newport News Shipbuilding and Dry
Dock Co., 8 F.3d 175 (4th Cir. 1993), aff'd on other grounds, 514
U.S. 122 (1995) ("Harcum I").3 On remand, the ALJ determined
_________________________________________________________________
2 Section 8(f) provides:

          (f) Injury increasing disability:

           (1) In any case in which an employee having an existing
          permanent partial disability suffers injury, the employer
          shall provide compensation for such disability as is found
          to be attributable to that injury based upon the average
          weekly wages of the employee at the time of the injury. . . .
          In all other cases of total permanent disability or of death,
          found not to be due solely to that injury, of an employee
          having an exiting permanent partial disability, the employer
          shall provide . . . compensation payments or death benefits
          for one hundred and four weeks only. . . .

            In all other cases in which the employee has a permanent
          partial disability, found not to be due solely to that injury,
          and such disability is materially and substantially greater
          than that which would have resulted from the subsequent
          injury alone, the employer shall provide . . . compensation
          for one hundred and four weeks only.

33 U.S.C. § 908(f)(1) (1994) (emphasis added).
3 The Director petitioned for certiorari to review that portion of this
court's decision holding that the Director lacked standing to appeal the
extent of disability issue. The Director's petition for certiorari was
granted and the Supreme Court affirmed this court's decision on that
issue.

                     3
Newport News was not entitled to § 8(f) relief. Specifically, the ALJ
found that the only new evidence presented by Newport News to sup-
port its request for § 8(f) relief was a report by Ms. Edith Edwards,
a certified vocational rehabilitation specialist. The ALJ deemed Ms.
Edwards' report insufficient evidence to entitle Newport News to
relief.

The present petition for review by Newport News followed.

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. Newport News Shipbuilding &
Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988); Newport
News Shipbuilding & Dry Dock Co. v. Director, OWCP , 681 F.2d
938, 941 (4th Cir. 1982). In turn, the Board's review of the ALJ's fac-
tual findings is limited by the requirement that"[t]he findings of fact
in the decision under review by the Board shall be conclusive if sup-
ported by substantial evidence in the record considered as a whole."
33 U.S.C. § 921(b)(3). Since under the procedure introduced by Pub-
lic Law 104-134, 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.

In Harcum I, we remanded the employer's claim for § 8(f) relief
for further consideration of the "contribution" element. Section 8(f) of
LHWCA serves to limit the benefits an employer must pay an
employee for a work-related injury when the injury was preceded by
a permanent partial disability. In applying § 8(f) in Harcum I we held
that when an employee who has a pre-existing permanent partial dis-
ability sustains an additional work-related injury that results in perma-
nent partial disability, the employer must provide compensation for
104 weeks only if:

          (1) the ultimate permanent partial disability is due to both
          the work-related injury and the pre-existing partial dis-
          ability, and;

          (2) the ultimate permanent partial disability is materially
          and substantially greater than a disability from the
          work-related injury alone would be.

                    4
Harcum I, 8 F.3d at 182 (footnote omitted).

To qualify for § 8(f) relief when an employee is permanently
totally disabled, the employer must show that (1) the employee had
an existing permanent partial disability before the occurrence of the
work-related injury; (2) the pre-existing permanent partial disability
was manifest to the employer prior to the subsequent work-related
injury; and (3) the ultimate permanent total disability is "not [ ] due
solely to th[e work-related] injury." Id. at 185 (citations omitted).
However, when an employee is permanently partially disabled, but
not totally disabled, § 8(f) requires the employer to make the addi-
tional showing that the ultimate permanent partial disability is materi-
ally and substantially greater than a disability from the work-related
injury alone. Thus, there is a heavier burden on the employer to obtain
the relief for a permanently partially disabled employee. Id.

In Harcum I, we spelled out what an employer must do to satisfy
this contribution criterion:

           To satisfy this additional prong of the contribution ele-
          ment, the 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-related injury alone. A
          showing of this kind requires quantification of the level of
          impairment that would ensue from the work-related injury
          alone. In other words, 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. Once the employer establishes the level
          of disability in the absence of a pre-existing permanent par-
          tial disability, an adjudicative body will have a basis on
          which to determine whether the ultimate permanent partial
          disability is materially and substantially greater.

Id. at 185-86 (emphasis added).

Newport News maintains that it met this "quantification" standard
with the introduction of Ms. Edwards' report. Specifically, it contends
that Ms. Edwards' report shows that without the pre-existing cervical

                    5
spine injury, Harcum would be capable of earning $6.00 per hour in
1984 dollars. With the injury, he is only capable of earning $3.80 per
hour. Moreover, Ms. Edwards' report opines that if Harcum had not
had cervical spine surgery, he would be eligible for jobs in telephone
marketing, for which he would otherwise be qualified. However,
because of the spine injury, telephone solicitation is not a possible
vocational option. On this basis, Newport News argues that Harcum's
residual wage-earning capacity is reduced by $2.20 per hour because
of the pre-existing disability, approximately 36.6% less than he would
be able to earn without the spine injury.

The Director argues that accepting Newport News' interpretation
of Harcum I would contradict prior Fourth Circuit opinions in
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 737
F.2d 1295 (4th Cir. 1984) ("Barclift"), and Maryland Shipbuilding &
Drydock Co. v. Director, OWCP, 618 F.2d 1082 (4th Cir. 1980)
("Maryland Shipbuilding"). The Director contends that in Barclift and
Maryland Shipbuilding, we phrased the contribution element issue as
"Would the worker have been less disabled and the employer's liabil-
ity for compensation decreased but for the worker's pre-existing
impairment?" Dir.'s Br. at 22.

There is no "but-for" requirement in Harcum I. And, in both
Barclift and Maryland Shipbuilding, the employee's ultimate disabil-
ity was total, whereas in the present case the employee's disability is
only permanent and partial. Unlike the situation involving an
employee with a permanent partial disability, where an employee has
a permanent total disability, the employer need not show that the ulti-
mate disability is materially and substantially greater than the disabil-
ity resulting solely from the work-related injury would have been.
Harcum I, 8 F.3d at 184 n.6.

The Director also argues that the ALJ correctly concluded that Ms.
Edwards' report is insufficient support for Newport News' position
that it proved the materially and substantially quantification for con-
tribution. The contention is that Ms. Edwards' report, the only evi-
dence the employer submitted pursuant to this court's remand,
"contains absolutely no comparisons of physical impairment ratings
and no opinion that the claimant was materially and substantially
more physically impaired following his compensable back injury than

                     6
he would have been had he not sustained a prior cervical injury."
Moreover, the Director contends that since Ms. Edwards is not a phy-
sician, she is not qualified to give such an opinion.

We did not in Harcum I hold that only medical evidence could be
used by the employer to meet the contribution standard of § 8(f),
though that, for obvious reasons, is customarily the sort of evidence
that is presented. Harcum I specifically provided that employers
might prove entitlement to § 8(f) relief by"medical evidence or
otherwise." The ALJ gave no reasons for his decision rejecting § 8(f)
relief on remand. His two-sentence analysis merely stated that

           As noted by the Director, this report by Ms. Edwards falls
           short of the evidence required by the Fourth Circuit's deci-
           sion in this case. Employer has failed to submit evidence
           that shows quantification of the level of impairment that
           would ensure from the work-related injury alone.

J.A. 55.

Upon review of Ms. Edwards' report, we are satisfied that by its
means Newport News presented exactly the quantification of evi-
dence that this court envisioned in Harcum I. In fact, the court cannot
discern how the objective quantification provided by Ms. Edwards is
in any way deficient. The Director asserts, and the ALJ apparently
believed, that the quantification criterion may be satisfied only
through medical evidence provided by physicians' opinions. As indi-
cated, we did not in Harcum I and have not in other decisions so lim-
ited the quantification proof required for § 8(f) relief. Nor is there
anything in the LHWCA limiting employers to medical opinions to
establish the contribution requirement. See Sproull v. Director,
OWCP, 86 F.3d 895, 900 (9th Cir. 1996).

As the court specifically stated in Harcum I, Newport News was
entitled to establish the contribution requirement by medical or other
evidence. Ms. Edwards' report satisfied the quantification require-
ment of the level of impairment that this court enunciated in Harcum
I. Based on Ms. Edwards' report, the ALJ had a sufficient basis to
award Newport News § 8(f) relief because Mr. Harcum's ultimate
permanent partial disability was materially and substantially greater

                     7
than his disability caused by the work-related injury only. In failing
to so find, the ALJ's findings of fact are not supported by substantial
evidence in the record considered as a whole.

Accordingly, the decision of the ALJ is reversed and the case is
remanded to the ALJ to award § 8(f) relief to Newport News.

REVERSED AND REMANDED

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