
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2162                 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,                          UNITED STATES DEPARTMENT OF LABOR,                                     Petitioner,                                          v.                             BATH IRON WORKS CORPORATION,                        COMMERCIAL UNION INSURANCE COMPANY AND                          LIBERTY MUTUAL INSURANCE COMPANY,                                     Respondents.                              _________________________                       PETITION FOR REVIEW OF A FINAL ORDER OF                              THE BENEFITS REVIEW BOARD                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Michael S.  Hertzig, Attorney,  United States  Department of               ___________________          Labor, with whom  J. Davitt McAteer,  Acting Solicitor of  Labor,                            _________________          Carol  A.  De Deo,  Associate  Solicitor,  and Janet  R.  Dunlop,          _________________                              _________________          Counsel for Longshore, were on brief for petitioner.               Kevin M. Gillis for respondents.               _______________                              _________________________                                   November 6, 1997                               ________________________               COFFIN, Senior Circuit Judge.   This case comes before us on                       ____________________          a  petition for  review of a  provision of  a final order  of the          Benefits  Review Board  ("Board") that  awarded  Bath Iron  Works          ("BIW")  Section 8(f)  relief  under  the  Longshore  and  Harbor          Workers' Compensation Act, 33 U.S.C.    901-950 (1988) ("LHWCA").          Section 8(f)  of the LHWCA  provides that an employer  obliged to          pay disability benefits to an  employee may be relieved from full          liability  if   the   employee's   compensable   disability   was          "materially and substantially  greater" as a  result of a  prior,          non-work-related disability.1   The Director, Office  of Workers'          Compensation Programs ("OWCP"), appeals the Section 8(f) award to          BIW on a number of grounds, most  of which are unnecessary for us          to reach,  because  we find  that  the Administrative  Law  Judge          ("ALJ") failed to determine, and the record contains insufficient          evidence to show, that  the required standard of  "materially and          substantially  greater" was met.  We therefore grant the petition          for review and reverse the Section 8(f) award.               Claimant Frank H. Johnson worked as a pipe-fitter at the BIW          shipyard for  various periods from  1951 until his  retirement in                                        ____________________               1    The issue  in this  case concerns who  should bear  the          primary responsibility for  paying compensation to  the claimant.          Under  the LHWCA,  the employer  pays the  full amount  unless it          meets the requirements  set forth in Section 8(f),  in which case          its liability for payment to disabled employees is limited to 104          weeks and  any remaining compensation  owed is paid by  a special          second injury  fund.  33 U.S.C.    908(f)(1)  & (2)(A).  The fund          consists  of   contributions  from   carriers  and   self-insured          employers, and is intended to distribute among all  employers the          cost  of  compensating employees,  while ensuring  that employees          with disabilities  receive full  benefits for their  work-related          injuries.  Bath Iron Works Co. v. Director, OWCP, 950 F.2d 56, 58                     ___________________    ______________          n.4 (1st Cir. 1991).                                         -2-          January 1984.   During his employment  at BIW, he  was exposed to          and inhaled asbestos dust and fibers at the shipyard.  Claimant's          exposure ended  in 1978 or  1979, when the crumbling  asbestos in          his work area was sealed.                 In 1986 claimant was  diagnosed as suffering from a  twenty-          five  percent impairment due  to asbestosis, and  he successfully          filed  a claim for workers' compensation benefits under the LHWCA          based on that impairment.  The ALJ's award of Section 8(f) relief          to  BIW  became a  final  order  for  the purposes  of  obtaining          judicial review before  us after the Board failed  to take action          on the Director's appeal within a year.2               Because  the appropriateness of Section 8(f) relief turns on          the source and nature of claimant's pulmonary impairment, we must          examine closely the medical evidence in the record.                                   THE MEDICAL EVIDENCE               The  earliest  evidence  that   claimant  suffered  from  an          asbestos-related lung condition appears to have come in 1982 from                                        ____________________               2    Another ALJ initially  awarded BIW Section  8(f) relief          from full liability based on evidence that claimant suffered from          a  pre-existing   knee  injury,   as  well   as  "other   medical          conditions," all  of which  were  manifest during  the period  of          claimant's  employment  at  BIW and  contributed  to  his overall          disability.    The  Director,  OWCP,  successfully  appealed  the          Section 8(f) award, and  the Board remanded the  case, concluding          that claimant's knee condition could  not be used as a basis  for          relief because it was unrelated to his pulmonary impairment.  The          Board directed the  ALJ on remand to consider  whether the "other          medical conditions" by themselves formed a basis for Section 8(f)          relief.  We review the remand decision here.                                         -3-          a  routine chest  x-ray  performed prior  to  a knee  operation.3          According to Dr. Schall, claimant's treating physician, the x-ray          revealed "interstitial  fibrosis and  pleural plaques  consistent          with asbestosis."6   Multiple pulmonary function tests  conducted          from that  time through 1986 revealed that claimant suffered from          diminished lung function.               Dr.  Schall, in  a letter  dated  December 1983,  summarized          claimant's condition at that time,                His most  recent chest x-ray taken May  19, 1983 showed               pulmonary  findings of  a  thickened pleura  with  some               calcific pleuritides  over the diaphragm  and increased               pulmonary   markings  inferiorly.    He  still  has  no               significant  complaints  of shortness  of breath.   His               pulmonary  functions and chest x-rays show a mixture of               chronic  obstructive pulmonary  disease and  asbestosis               with   some  restrictive   component.[7]     Certainly,               asbestosis can be considered a contribution .  . . [to]               his pulmonary status.  He is currently not disabled  on               a pulmonary  basis and  would be  capable of  full-time               regular  employment.     At  the   present  time   it's               impossible to predict what his prognosis is.  Certainly               his  chronic obstructive pulmonary  disease is far more               risky to him and is in a further advanced state than is               his asbestosis.   He  has the  concomitant problems  of               obesity, chronic  alcoholism and  severe osteoarthritis                                        ____________________               3    Dr. Schall stated that claimant showed some evidence of          asbestos exposure as early as 1978.   As there is no evidence  in          the  medical record  indicating  physical  damage resulting  from          asbestos   exposure  before  1982,   we  agree  with   the  ALJ's          determination that claimant's asbestos-related lung condition  is          properly dated back to 1982.               6    After  this  diagnosis,  claimant  filed  a  protective          claim, thereby satisfying the LHWCA's notice requirements.               7    In reporting on claimant's condition, Dr. Schall refers          to   claimant's   "obstructive"   pulmonary  function   and   his          "restrictive"  pulmonary function.    The  former  is  claimant's          condition  independent of  asbestosis, while  the  latter is  his          asbestos-related condition.                                         -4-               of his  knees.   His primary  disabling feature  is his               knees.8            In  deposition  testimony  in  1988,  Dr.  Schall  described  the          claimant's condition as "severe obstructive with mild to moderate          restrictive disease."                 Dr.  Killian,  a   physician  specializing  in   respiratory          medicine,  in  a March  1986  letter  reporting  upon his  recent          examination of  claimant, concluded  that claimant suffered  from          five conditions:   asbestosis  of  the left  lower lobe,  pleural          plaques,  obesity, hypertension,  and  chest  pain suggestive  of          ischemic heart disease.  He added that claimant "does indeed have          both pleural plaques and asbestosis  which is due to his asbestos          exposure  occurring at work.   The  degree of  disability present          from a pulmonary  perspective can be  classified as mild.  . .  .          [H]is present  impairment has caused noticeable disability within          the  last  year or  so."   In deposition  testimony in  1988, Dr.          Killian concluded that claimant's cigarette smoking, his obesity,                                        ____________________               8    In  this letter,  Dr. Schall  also  gave the  following          review of claimant's medical history:               The  man  was   first  seen  in  1978  for   a  routine               examination prior  to arthroscopic  examination of  his               knees.   He  had at  that time  a smoking  history that               included in excess  of 100 pack years but  had been off               cigarettes  for eight months.   He denied  shortness of               breath  stating that  his  knees  limited his  physical               activities.   He had a  history of hypertension.   He's               worked  as  a  pipe-fitter  and  has  been  exposed  to               asbestos  through his  work environment.   His physical               findings at that time showed his chest to be clear with               a fair  respiratory expansion.   Chest  x-rays at  that               time  showed some  pulmonary  scarring consistent  with               asbestosis.                                         -5-          his arthritic knees  and lung damage caused  by asbestos exposure          contributed to claimant's overall disability.                In  1987  a  pulmonary   specialist,  Dr.  Corbin,  examined          claimant  and  reviewed   his  pulmonary  function  tests.     He          concluded,                I believe that Mr. Johnson has asbestos-related pleural               disease and pleural  fibrosis. . . . I  am certain that               this was related to his exposure to asbestos during the               time of his employment  at Bath Iron Works. . .  .  Mr.               Johnson also has restrictive lung disease which is mild               to moderate  in degree. . . .  I feel certain that this               is  related to  his pleural fibrosis.   The  patient is               obese,  but patients  with  obesity alone  rarely  have               restrictive  pulmonary  function.   As  I  have  stated               before, I think his pleural fibrosis  is related to his               employment at Bath Iron Works.  . . . [H]is symptoms of               shortness  of   breath  and  restricted   activity  are               significantly   contributed   to    by   his   physical               deconditioning and obesity.               Another physician, Dr. Schmidt, reviewed claimant's June 11,          1982  pulmonary function studies  and concluded that  they showed          "restrictive  lung   disease  and   minimal  obstructive   airway          disease."   He  also reported  that claimant's  January  20, 1983          pulmonary  function  studies   showed  "mild  obstructive  airway          disease," which "appears to be new since June, 1982."               In  1986  claimant, for  the  first time,  was  diagnosed as          permanently partially disabled as a  result of asbestosis.  It is          undisputed  that  claimant  was  twenty-five  percent   partially          disabled at that time.  No finding was made as to  what amount of          this disability was specifically attributable to asbestosis or to          any other kind of pulmonary impairment.                                         -6-                        ENTITLEMENT TO SECTION 8(f) RELIEF --             PERMANENT TOTAL AND PARTIAL DISABILITY CRITERIA DISTINGUISHED               We  review the  Board's  decision for  errors  of law,9  and          examine the record  to determine whether  the ALJ's findings  are          supported by  substantial evidence.   33 U.S.C.    921(b)(3); CNA                                                                        ___          Insurance Co. v. Legrow, 935 F.2d 430, 434 (1st Cir. 1991).              _____________    ______               This appeal raises  numerous complex  issues concerning  the          application  of  Section 8(f).    We  believe  this case  can  be          resolved on  a fairly straightforward  basis not requiring  us to          consider many of  the issues  raised on  appeal.   As we  discuss          below,  unless  the  employer  establishes  that  the  employee's          compensable permanent  partial  disability  was  "materially  and          substantially  greater"  as a  result  of a  prior  disability, a          Section 8(f) award is unavailable to the employer, and no further          analysis  is required.    Because existing  case law  has largely          ignored  the  clear  threshold  requirements  of  Section   8(f),          however,  we  think  it helpful  to  clarify  certain preliminary          issues in the  Section 8(f) framework.  We  choose, therefore, to          review in detail the initial steps that must be met to support an          award of Section  8(f) relief, up to and  including consideration          of the "materially and substantially greater" standard; we do not          consider issues  raised on appeal that go  beyond these threshold          requirements.                                          ____________________               9    In  this case,  because the  ALJ  order is  final as  a          result  of the Board's failure  to consider the Director's appeal          within  one  year,  we  treat  the ALJ's  order  as  the  Board's          decision.                                          -7-               The  LHWCA provides compensation for the death or disability          of federal maritime employees if the disability or  death results          from  a work-related  injury.   Under  what has  been termed  the          "aggravation rule,"  the LHWCA  requires an  employer to  provide          full coverage for a worker's job-related disability even when the          disability resulted from some combination of a current employment          injury  and a pre-existing  condition.  Ceres  Marine Terminal v.                                                  ______________________          Director, OWCP, 118 F.3d 387,  389 (5th Cir. 1997).  In  response          ______________          to concern  that this "aggravation rule" would  give the employer          an incentive  to discriminate against partially  disabled workers          based on a fear of increased liability, Congress  enacted Section          8(f).  Id.;  see also CNA, 935  F.2d at 435 (explaining  that the                 ___   ___ ____ ___          statute was aimed at encouraging employers to hire or continue to          employ  handicapped   workers  by   limiting   liability  for   a          subsequently incurred  permanent partial  disability attributable          in part to a previously existing handicap).                 Section 8(f) provides in relevant part:               (f)  Injury increasing disability:               (1)  In . . . cases of total permanent disability . . .               found  not to  be  due  solely to  that  injury, of  an               employee   having   an   existing   permanent   partial               disability,   the  employer   shall   provide  .   .  .               compensation  payments . .  . for one  hundred and four               weeks only. . . .                     In  .  . .  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).                                         -8-               The employer carries  the burden to prove  that the elements          of Section 8(f) are met.  See Director, OWCP v. Edward Minte Co.,                                    ___ ______________    _________________          Inc.,  803 F.2d  731, 737  (D.C.  Cir. 1986);  Director, OWCP  v.          ____                                           ______________          Newport News Shipbuilding  & Dry Dock Co., 676 F.2d 110, 115 (4th          _________________________________________          Cir. 1982).                 To  qualify  for  the  limitation  on  full  liability,  the          employer therefore must  prove that the claimant had  a permanent          partial disability within  the meaning of Section  8(f), and that          the condition existed prior to  the work-related injury.  We have          described the standard for "disability" under Section 8(f) as "[a          condition]  serious enough to motivate a cautious employer either          not to hire or [to]  fire [the] employee because of  the 'greatly          increased   risk   of   [an]  employment-related   accident   and          compensation liability.'"  CNA, 935 F.2d at 435.  Thus,  a person                                     ___          may be  found to  suffer from a  pre-existing disability  even if          able  to  work full  time in  the identical  position.   The pre-          existing  disability must,  however, be  a  "condition," and  not          merely an unhealthy behavior  likely to lead to a condition.  See                                                                        ___          General Dynamics Corp. v. Sacchetti,  681 F.2d 37 (1st Cir. 1982)          ______________________    _________          (finding  that an employee's habit of  smoking moderately for ten          years prior to  developing asbestosis as a result  of exposure at          work  did not  constitute a  qualifying  prior permanent  partial          disability so as to  limit an employer's liability under  Section          8(f)).    To qualify  as pre-existing,  the condition  must exist          before  the  work-related   injury;  a  disability  that   occurs          simultaneously will  not meet  the requirement.   See  Fineman v.                                                            ___  _______                                         -9-          Newport  News Shipbuilding  & Dry  Dock Co.,  27 BRBS  104 (1993)          ___________________________________________          (citing Newport News  Shipbuilding & Dry Dock Co.  v. Harris, 934                  _________________________________________     ______          F.2d 548 (4th Cir. 1991)).                 Once  the employer  establishes  that  the  employee  had  a          qualifying pre-existing disability, the scope of  the compensable          injury must  be considered.   Although most cases have  failed to          acknowledge  the differing standards, the proper analysis at this          point  turns on  whether  the  employee suffers  from  a full  or          partial disability.                  In cases where the employee  is fully disabled, the employer          must  show that  the  disability is  not due  solely to  the most          recent injury.  E.P. Paup  Co. v. Director, OWCP, 999  F.2d 1341,                          ______________    ______________          1352 (9th Cir. 1993); Todd  Pacific Shipyards Corp. v.  Director,                                _____________________________     _________          OWCP,  913  F.2d 1426,  1429  (9th Cir.  1990).    "Thus, if  the          ____          employment  injury  was  sufficient,  by  itself,  to  cause  the          claimant's  total permanent  disability, the  employer should  be          liable for the entire compensation  award and section 8(f) relief          should be denied.   The aggravation rule that  [S]ection 8(f) was          intended   to  counteract  never  comes  into  play  under  these          circumstances because  the employer would  be liable to  the same          extent  if an  able-bodied employee  suffered  the same  injury."          Ceres  Marine, 118 F.3d at 390.   The employer cannot satisfy the          _____________          Section 8(f) standard merely by demonstrating that the employee's          pre-existing  injury  compounded his  employment-related  injury;          rather,  the  employer  must  show  that,  but  for  pre-existing                                         -10-          disability,  claimant would  be employable.    Director, OWCP  v.                                                         ______________          Jaffe New York Decorating, 25 F.3d 1080, 1085 (D.C. Cir. 1994).          _________________________               In  cases  where  the employee  is  partially  disabled, the          employer  must show that the current permanent partial disability          "is  materially and substantially  greater than that  which would          have resulted  from the  subsequent injury alone."   33  U.S.C.            908(f);  Metropolitan Stevedore Co.  v. Rambo, 515  U.S. 291, 293                   __________________________     _____          (1995); Director, OWCP v. Ingalls Shipbuilding, Inc., --- F.3d --                  ______________    __________________________          -, 1997 WL 612743, *4 (5th Cir. 1997).               A  "heavier burden"  is  placed on  the  employer to  obtain          Section 8(f)  relief  in  the  case of  a  permanently  partially          disabled employee than in the  case of a fully disabled employee.          Director,  OWCP  v.  Newport  News Shipbuilding  &  Dry  Dock Co.          _______________      ____________________________________________          ("Newport News"),10  8 F.3d  175, 185 (4th  Cir. 1993),  aff'd on            ____________                                           ________          other grounds, 514 U.S. 122  (1995) (citing Two "R" Drilling Co.,          _____________                               _____________________          Inc. v.  Director, OWCP, 894 F.2d 748, 750  (5th Cir. 1990)).  In          ____     ______________          Newport News, the court stated:          ____________               To  satisfy  this additional  prong, 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 partial disability,                                        ____________________               10   Our opinion cites  a number of cases  involving Newport          News  Shipbuilding &  Dry Dock  Co.   The abbreviation,  "Newport                                                                    _______          News," refers only to this Fourth Circuit case.          ____                                         -11-               an  adjudicative body  will have  a basis  on which  to               determine  whether   the  ultimate   permanent  partial               disability is materially and substantially greater.          8 F.3d at 185-86; see also Ingalls, 1997 WL 612743, *4.  Thus, an                            ___ ____ _______          employer  is   required  to   show  the   degree  of   disability          attributable to  the work-related injury, so that this amount may          be compared to the total percentage of the partial disability for          which coverage under the LHWCA is sought.               The court in Newport News specifically rejected the argument                            ____________          that  an  employer  need  only  show  medical  evidence  that   a          percentage  of whole  body impairment  existed  before the  work-          related  injury,  that   a  greater  percentage  of   whole  body          impairment exists  after the  work-related injury,  and that  the          ultimate permanent  partial disability was  causally connected to          the earlier  impairment to satisfy its burden of the contribution          element:                [Such  a]  showing  eviscerates  the  requirement  from               section  8(f)  that  the   ultimate  permanent  partial               disability be materially and substantially greater than               a disability from  the work-related injury  alone would               be,  by  overlooking  the  possibility that  the  work-               related  injury alone  could cause  virtually  the same               level  of disability as that manifested in the ultimate               permanent partial  disability through  the contribution               of the pre-existing permanent partial disability.            8 F.3d at 184.               Despite  the clear statutory  language of Section  8(f), and          despite cases such as  Newport News and Ingalls, emphasizing  the                                 ____________     _______          need  to meet the "materially and substantially greater" standard          in partial disability  cases, some cases have permitted  a looser          contribution finding, or have failed  to consider the standard at                                         -12-          all.  See, e.g., Skelton v. Bath Iron Works Corp., 27 BRBS 28, *2                ___  ____  _______    _____________________          (1993) (stating  that the  Section 8(f)  contribution requirement          may be  met by  a showing "that  the pre-existing  disability was          aggravated by claimant's  subsequent employment.").   However,  a          finding  that  a  claimant's  permanent  physical  impairment  is          greater as  a result of  the combination of the  pre-existing and          work-related  injuries is clearly insufficient to satisfy Section          8(f).  See Newport News, 8 F.3d at 184-85.   Failure to apply the                 ___ ____________          statutory  criteria  of  "materially  and substantially  greater"          constitutes error.                          BIW'S SECTION 8(f) BURDEN APPLIED                        I.  The ALJ's Findings and Conclusions                            __________________________________               The  ALJ defined  the essential  elements  for Section  8(f)          relief  as:    "(1) the  employee  had  a pre-existing  permanent          partial  disability, (2) which was manifest to the employer prior          to the subsequent compensable injury, and (3) which combined with          the  subsequent  injury  to produce  or  increase  the employee's          permanent  total or partial disability, a disability greater than          that resulting from the first  injury alone."  In concluding that          BIW met these elements, the ALJ relied on the following:               The record  reflects  . .  .  (2) that  [claimant]  has               experienced shortness of breath  and pulmonary problems               since  at least  May of 1978  as he was  required to be               examined  by  Dr.  Schall for  pre-operative  clearance               prior to knee  surgery, (3) that  he has suffered  from               obesity  and hypertension for  many years, (4)  that he               had a long history of cigarette smoking, i.e., at least               1  to 3  packs  per day  for  forty years,  a  habit he               stopped in  1978, (5) that  Claimant's asbestos-related               disease was first reported on his chest x-rays in April                                         -13-               of  1982, .  .  . (7)  that  his subsequent  diagnostic               tests, including  pulmonary function  tests, showed  an               increase  of   his  asbestos-related   disease  and   a               worsening  of his  shortness of  breath,  (8) that  Dr.               Schall,  as of December 5, 1983, opined that Claimant's               pulmonary impairment was  due to "a mixture  of chronic               obstructive pulmonary disease  and asbestosis with some               restrictive  component," (9)  that Claimant's  "chronic               obstructive  pulmonary disease is far more risky to him               and  is  (in) a  further  advanced  state than  is  his               asbestosis," (10) that he "has the concomitant problems               of    obesity,    chronic   alcoholism    and    severe               osteoarthritis of  his  knees," .  .  . (12)  that  the               doctors  are  in  agreement  that Claimant's  permanent               partial impairment  is due  to the  combination of  his               asbestos-related  disease,  i.e., his  asbestosis,  his               hypertension,   his  obesity,   his  cardiac   problems               diagnosed  as ischemic  heart  disease, (13)  that  the               doctors reiterated their opinions at their post-hearing               depositions   .  .  .  ,  [and]  (14)  that  Claimant's               permanent disability is  the result of the  combination               of his pre-existing  permanent partial disability (i.e.               his pulmonary problems since at least May 18, 1978, his               chronic obesity, his chronic hypertension, his  cardiac               problems  and his cigarette  smoking habit of  at least               100 pack years and as  high as 120 pack years) and  his               work-related asbestosis  . .  . [.   His]  pre-existing               disability,  in combination  with  the subsequent  work               injury,  has  contributed  to   a  greater  degree   of               permanent disability,  according  to  Dr.  Schall,  Dr.               Corbin and Dr. Killian.  (citations to record omitted).          The  ALJ  concluded  from  the evidence  that  claimant  fit  the          category  of person  that Section 8(f)  was designed  to protect:          "Claimant's  condition, prior  to  his injury  in  1986, was  the          classic  condition  of  a  high-risk  employee  whom  a  cautious          employer would neither  have hired nor retained in employment due          to the increased likelihood that  such an employee would  sustain          another occupational injury."                                          -14-               Other than what is included in a citation from another case,          quoted  for  a  different  proposition,11  the  ALJ  in no  place          mentions  the Section 8(f) requirement,  or makes a finding, that          the ultimate permanent disability is materially and substantially          greater  as  a  result of  the  preexisting  disability  than the          disability which would  have resulted from the  subsequent injury          alone.            II.  The Missing Assessment: the ALJ Opinion and the Record                   ______________________________________________________               Under the  LHWCA, Johnson's  compensable injury  occurred in          1986, when he was diagnosed  with a twenty-five percent permanent          disability resulting from asbestosis.12  Therefore, only the non-                                        ____________________               11   At the conclusion of the order, the ALJ quoted Adams v.                                                                   _____          Newport News,  22 BRBS  78, 85 (1989),  for the  proposition that          ____________          only  pulmonary  problems  were  relevant  to  the  Section  8(f)          determination; physical  problems relating to  other impairments,          such  as claimant's knee injury, could not be considered.  In the          section  of Adams  quoted  by  the ALJ,  the  Board mentions  the                      _____          "materially  and substantially greater"  requirement only as part          of its  general  explanation that this standard  must be met by a          pre-existing  disability that impacts  the same type  of physical          functioning as does the work-related injury.               12   In  long-latency  disease  cases,  such as  asbestosis,          using the date of last exposure as the relevant time of injury is          inappropriate  because the  injury arises  years  later when  the          disease manifests  itself.  See Bath Iron  Works Co., 506 U.S. at                                      ___ ____________________          163.  Therefore, while not  determinative of our finding, we note          here  the applicable  date for  time of  injury is the  date that          claimant  was diagnosed  with --  and thus  became aware  that he          suffered  from  --   a  twenty-five  percent  permanent   partial          disability  resulting from asbestosis.   See Harris,  934 F.2d at                                                   ___ ______          553 (stating that "the time of injury is deemed to be the date on          which the employee or claimant  becomes aware, or in the exercise          of reasonable  diligence or  by reason  of medical  advice should          have been aware, of the relationship  between the employment, the          disease, and the death or  disability," citing 33 U.S.C.   910(i)          and noting,  "[s]ince the issue before the  court is how long the          employer is going to have to pay  the amount determined to be due          under [Section 910],  it necessarily follows that  the definition          of time of injury found therein would be used for the purposes of                                         -15-          asbestosis-related pulmonary disability that he suffered prior to          1986 is relevant to our Section 8(f) analysis.               Claimant   suffered  from   pulmonary  problems,   including          obstructive pulmonary conditions  unrelated to asbestos prior  to          1986.   The  evidence in  the medical  record supports  the ALJ's          conclusion that  these problems, probably  resulting from obesity          and  smoking, amounted to  "the classic condition  of a high-risk          employee whom  a cautious employer  would neither have  hired nor          retained in employment due to the increased likelihood that  such          an employee would  sustain another occupational disease."   While          we need not  reach this issue to conclude this case, we note here          that  we agree  with  the  ALJ's finding  that  claimant met  the          Section  8(f) criteria of suffering from a pre-existing permanent          disability prior to his work-related injury.                To  be  entitled to  Section 8(f)  relief, however,  BIW was          required to  carry the  burden of  demonstrating that  claimant's          twenty-five percent  disability was materially  and substantially          greater  than that  which would have  resulted from  the asbestos          exposure alone.  To do this, BIW was required to show  the degree          of  disability attributable only  to claimant's asbestosis.   See                                                                        ___          Newport  News, 8  F.3d  at 185-86.   Then,  the  ALJ should  have          _____________          compared  this information  with  claimant's twenty-five  percent          disability to determine whether the "materially and substantially          greater" standard had been met.  See id.                                           ___ ___                                        ____________________          Section 8(f).").                                          -16-               The ALJ,  however, made no  such determination.   He neither          discussed  the statutory requirement, nor applied it in analyzing          the facts of this case.               Further,   the  ALJ  lacked   the  evidence  to   apply  the          "materially  and  substantially  greater"  standard  even had  he          chosen  to  do  so.   No  evidence of  the  degree  of disability          attributable  only to  claimant's asbestosis was  ever presented.          Nor  can such  disability  be deduced  from  the medical  records          relating to  claimant's non-asbestos-related  injury.   While Dr.          Schall did state  that the non-related asbestos  lung disease was          in  a  further  advanced state  than  claimant's  asbestosis, Dr.          Schall made this diagnosis in  1983.  At that time,  claimant was          not  disabled  as a  result  of  pulmonary  impairment.   A  1983          assessment,  therefore, could not  establish the degree  to which          claimant's 1986  compensable injury  was impacted  by an  earlier          existing  non-asbestos-related  disability.     Dr.  Killian,  in          reporting  on  claimant's  condition   in  1986,  concluded  that          claimant's prior  non-asbestos-related disability  contributed to          claimant's overall disability.  But  he gave no indication of how          much  contribution existed,  and included  in  his assessment  of          claimant's "overall disability"  claimant's knee problems,  which          cannot properly form  part of a Section 8(f)  determination.  Dr.          Corbin provides the best evidence for BIW, stating, in 1987, that          claimant's  "symptoms  of  shortness  of  breath  and  restricted          activity  are  significantly  contributed  to   by  his  physical          deconditioning and obesity."  However,  even this report fails to                                         -17-          meet  the  required standard.    Dr.  Corbin provides  a  general          statement  that includes claimant's shortness of breath and spans          his  "restricted activity."   The  report does  not  indicate the          extent to which claimant's pre-existing  condition contributed to          his  permanent   partial  disability,  the   twenty-five  percent          pulmonary impairment for which condition alone claimant  received          compensation under the LHWCA.                Therefore, there being neither sufficient direct evidence of          the contribution  of asbestosis  to claimant's  overall permanent          partial disability  nor a  basis for  deducing such  contribution          from the contribution attributable to the pre-existing condition,          BIW has failed to carry its considerable burden.                                         -18-                                      CONCLUSION               Because we  determine that the  ALJ failed to find,  and the          record contains  insufficient evidence  to show,  that claimant's          current   permanent   partial   disability  is   materially   and          substantially  greater than that  which would have  resulted from          asbestosis alone, we do  not address the remaining  issues raised          by appellant.  For the  reasons discussed, we reverse the Section          8(f) award to BIW.                                                      -19-
