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,

___________________
Labor, with whom
Carol A. De Deo,
_________________

J. Davitt McAteer,
_________________
Associate

United States

Department of

Acting Solicitor of

Solicitor,

Labor,

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

petition for

Benefits

("BIW")

review of a

Review Board

Section 8(f)

provision of

("Board") that

relief

under

Workers' Compensation Act, 33 U.S.C.

Section 8(f)

of the LHWCA

if

the

awarded

the

Bath Iron

Longshore

Works

Harbor

obliged to

employee may be relieved from full

employee's

"materially and substantially

and

of the

901-950 (1988) ("LHWCA").

provides that an employer

pay disability benefits to an

liability

a final order

compensable

greater" as a

non-work-related disability.1

disability

result of a

The Director, Office

was

prior,

of Workers'

Compensation Programs ("OWCP"), appeals the Section 8(f) award to

BIW on a number of grounds, most

to reach,

because

we find

that

of which are unnecessary for us

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

____________________

The issue

in this

primary responsibility for

Under

the LHWCA,

case concerns who

paying compensation to

the employer

meets the requirements

should bear

pays the

the claimant.

full amount

set forth in Section 8(f),

the

unless it

in which case

its liability for payment to disabled employees is limited to 104

weeks and

any remaining compensation

second injury

fund.

consists

contributions

908(f)(1)

employers, and is intended to distribute among all

employers the

compensating employees,

with disabilities
injuries.

receive full

carriers

The fund

self-insured

of

from

& (2)(A).

a special

and

cost

of

33 U.S.C.

owed is paid by

while ensuring
benefits for their

that employees

work-related

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.

exposure ended

in 1978 or

1979, when the crumbling

Claimant's

asbestos in

his work area was sealed.

In 1986 claimant was

five

filed

diagnosed as suffering from a

percent impairment due

to asbestosis, and

twenty-

he successfully

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

judicial review before

order

for

the purposes

us after the Board failed

of

obtaining

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

____________________

Another ALJ initially

awarded BIW Section

8(f) relief

from full liability based on evidence that claimant suffered from

pre-existing

knee

conditions," all

injury,

of which

claimant's

employment

disability.

The

at

were

well

as

"other

manifest during

BIW and

Director,

Section 8(f) award, and

as

OWCP,

that claimant's knee condition could

the period

contributed

to

successfully

the Board remanded the

medical

of

his overall
appealed

the

case, concluding

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-

routine chest

x-ray

performed prior

to

a knee

operation.3

According to Dr. Schall, claimant's treating physician, the x-ray

revealed "interstitial

with asbestosis."6

from that

fibrosis and

pleural plaques

consistent

Multiple pulmonary function tests

conducted

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

pulmonary

findings of

19, 1983 showed

thickened pleura

calcific pleuritides

over the diaphragm

pulmonary

inferiorly.

markings

significant
pulmonary
chronic
with

complaints

He

of shortness

with

and increased
still

has

of breath.

no
His

functions and chest x-rays show a mixture of

obstructive pulmonary

some

restrictive

disease and

asbestosis

component.[7]

Certainly,

asbestosis can be considered a contribution .

his pulmonary status.
a pulmonary
regular

some

basis and

employment.

. . [to]

He is currently not disabled

would be
At

the

capable of
present

impossible to predict what his prognosis is.

on

full-time
time

it's

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

obesity, chronic

alcoholism and

of

severe osteoarthritis

____________________

Dr. Schall stated that claimant showed some evidence of

asbestos exposure as early as 1978.

the

medical record

asbestos

exposure

indicating
before

As there is no evidence

physical

1982,

we

damage resulting
agree

with

the

in

from

ALJ's

determination that claimant's asbestos-related lung condition

is

properly dated back to 1982.

After

this

diagnosis,

claimant

filed

protective

claim, thereby satisfying the LHWCA's notice requirements.

7
to

In reporting on claimant's condition, Dr. Schall refers

claimant's

"restrictive"
condition

"obstructive"

pulmonary

pulmonary function.

independent of

The

function
former

asbestosis, while

asbestos-related condition.

-4-

the

is

and

his

claimant's

latter is

his

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.

medicine,

Killian,

in

examination of

a March

physician

1986

specializing

letter

claimant, concluded

reporting

in

respiratory

upon his

that claimant suffered

recent

from

five conditions:

plaques,

asbestosis

of

obesity, hypertension,

ischemic heart disease.

the left

and

occurring at work.

from a pulmonary

[H]is present

the

last

chest

pleural

pain suggestive

of

He added that claimant "does indeed have

both pleural plaques and asbestosis

exposure

lower lobe,

The

which is due to his asbestos

degree of

perspective can be

disability present

classified as mild.

. .

impairment has caused noticeable disability within

year or

so."

In deposition

testimony in

1988, Dr.

Killian concluded that claimant's cigarette smoking, his obesity,

____________________

In

this letter,

Dr. Schall

also

gave the

following

review of claimant's medical history:

The

man

was

first

examination prior
knees.

He

had at

seen

in

1978

to arthroscopic
that time

for

routine

examination of

a smoking

his

history that

included in excess
cigarettes
breath

of 100 pack years but

for eight months.

stating that

activities.
worked

as

asbestos

He had a
a

his

knees

shortness of

limited his

physical

history of hypertension.

pipe-fitter

through his

He denied

had been off

and

has

been

work environment.

exposed

He's
to

His physical

findings at that time showed his chest to be clear with

a fair
time

respiratory expansion.
showed some

pulmonary

Chest

x-rays at

that

scarring consistent

with

asbestosis.

-5-

his arthritic knees

and lung damage caused

by asbestos exposure

contributed to claimant's overall disability.

In

1987

claimant

and

pulmonary

reviewed

specialist,

his

Dr.

pulmonary

Corbin,

function

examined

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
is

in degree. . . .

related to

obese,

his pleural fibrosis.

but patients

restrictive

I feel certain that this

pulmonary

with

obesity alone

function.

As

before, I think his pleural fibrosis

employment at Bath Iron Works.
shortness

of

significantly

breath

and

contributed

The

patient is
rarely
have

have
stated

is related to his

. . . [H]is symptoms of

restricted
to

by

activity
his

are

physical

deconditioning and obesity.

Another physician, Dr. Schmidt, reviewed claimant's June 11,

1982

pulmonary function studies

and concluded that

they showed

"restrictive

disease."

lung

He

pulmonary

disease

and

also reported

function

minimal

obstructive

that claimant's

studies

showed

"mild

airway

January

20, 1983

obstructive

airway

disease," which "appears to be new since June, 1982."

In

1986

claimant, for

the

first time,

permanently partially disabled as a

undisputed

that

claimant

disabled at that time.

was

was

diagnosed as

result of asbestosis.

twenty-five

percent

No finding was made as to

It is

partially

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

examine the record

supported by

Board's

decision for

to determine whether

substantial evidence.

errors

of law,9

and

the ALJ's findings

are

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).

resolved on

a fairly straightforward

consider many of

below,

unless

the issues

the

partial

greater"

believe

as a

this case

can

basis not requiring

raised on

employer

compensable permanent

substantially

We

appeal.

establishes

that

disability

was

result

of a

As we

the

us to

discuss

employee's

"materially

prior

be

and

disability, a

Section 8(f) award is unavailable to the employer, and no further

analysis

is required.

Because existing

ignored

the

clear

threshold

however,

we

think

it helpful

issues in the

case law

requirements

to

clarify

Section 8(f) framework.

We

of

has largely

Section

8(f),

certain preliminary

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.
____________________

In

this case,

because the

result

of the Board's failure

within

one

year,

we

treat

ALJ

order is

final as

to consider the Director's appeal

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

from

a work-related

"aggravation rule,"

injury.

the LHWCA

Under

what has

requires an

death results

been termed

employer to

the

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.

Director, OWCP, 118 F.3d 387,

______________

to concern

an incentive

Ceres Marine Terminal v.

______________________

389 (5th Cir. 1997).

that this "aggravation rule" would

Id.;
___

to discriminate against partially

see also CNA, 935

___ ____ ___

response

give the employer

disabled workers

based on a fear of increased liability, Congress

8(f).

In

enacted Section

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

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

employee

be

due

solely to

having

an

existing

disability,

the

employer

compensation

payments . .

that

injury, of

permanent

shall

provide

. for one

an

partial
.

hundred and four

weeks only. . . .
In

permanent
solely

. .

cases

in

which

partial disability,
to

that

materially and
would have

injury,

found

and

such

substantially greater

resulted from the

the employer shall provide

not

to

908(f)(1).

-8-

has
be

than that

a
due

disability

is

which

subsequent injury alone,

. . . compensation

hundred and four weeks only.

33 U.S.C.

the employee

for one

The employer carries

of Section 8(f) are met.

Inc.,
____

803 F.2d

731, 737

the burden to prove

that the elements

See Director, OWCP v. Edward Minte Co.,

___ ______________
_________________

(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

partial disability within

the meaning of Section

the condition existed prior to

a permanent

8(f), and that

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]

increased

risk

fire [the] employee because of

of

[an]

compensation liability.'"

may be

able

found to

to

existing

employment-related

CNA, 935 F.2d at 435.

___

suffer from a

work full

time in

disability must,

merely an unhealthy behavior

the 'greatly

accident

Thus,

pre-existing disability

the identical

however, be

a person

even if

The pre-

"condition," and

not

likely to lead to a condition.

See
___

General Dynamics Corp. v. Sacchetti,

______________________
_________

position.

and

681 F.2d 37 (1st Cir. 1982)

(finding

that an employee's habit of

years prior to

work

did not

developing asbestosis as a result

constitute a

disability so as to

8(f)).

before

To qualify

the

smoking moderately for ten

prior permanent

partial

limit an employer's liability under

Section

as pre-existing,

work-related

simultaneously will

qualifying

of exposure at

injury;

not meet

the condition

disability

the requirement.

-9-

must exist

that

See
___

occurs

Fineman v.
_______

Newport News Shipbuilding & Dry Dock Co.,

___________________________________________

27 BRBS

(citing Newport News Shipbuilding & Dry Dock Co.

_________________________________________

104 (1993)

v. Harris, 934
______

F.2d 548 (4th Cir. 1991)).

Once

the employer

establishes

that

the

qualifying pre-existing disability, the scope of

employee

had

the compensable

injury must

be considered.

acknowledge

the differing standards, the proper analysis at this

point

turns on

whether

the

Although most cases have

employee suffers

from

failed to

a full

or

partial disability.

In cases where the employee

must

show that

recent injury.

the

is fully disabled, the employer

disability is

not due

solely to

E.P. Paup Co. v. Director, OWCP, 999

______________
______________

the most

F.2d 1341,

1352 (9th Cir. 1993); Todd Pacific Shipyards Corp. v.

_____________________________

OWCP,
____

913

F.2d 1426,

1429

employment

injury

was

claimant's

total permanent

(9th Cir.

sufficient,

intended

to

counteract

if an

never

comes

the employer would

able-bodied employee

Ceres Marine, 118 F.3d at 390.

_____________

"Thus, if

the

to

the

cause

employer should

be

award and section 8(f) relief

The aggravation rule that

circumstances because

extent

itself,

disability, the

liable for the entire compensation

should be denied.

by

1990).

Director,
_________

into

[S]ection 8(f) was

play

under

be liable to

suffered

the same

these

the same

injury."

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

employer

cases

where

the employee

is

partially

disabled, the

must show that the current permanent partial disability

"is

materially and substantially

have resulted

908(f);

from the

greater than that

subsequent injury alone."

Metropolitan Stevedore Co.

__________________________

v. Rambo, 515
_____

which would

33

U.S.C.

U.S. 291, 293

(1995); Director, OWCP v. Ingalls Shipbuilding, Inc., --- F.3d -______________

__________________________

-, 1997 WL 612743, *4 (5th Cir. 1997).

"heavier burden"

Section 8(f)

relief

in

is

placed on

the

case of

disabled employee than in the

Director, OWCP
_______________

v.

("Newport News"),10
____________

employer to

permanently

obtain

partially

case of a fully disabled employee.

Newport News Shipbuilding & Dry Dock Co.

____________________________________________

8 F.3d

other grounds, 514 U.S. 122

_____________

Inc. v.
____

the

175, 185 (4th

Cir. 1993),

aff'd on
________

(1995) (citing Two "R" Drilling Co.,

_____________________

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

substantially exceeds

disability

materially

the disability as it

would have

resulted from the work-related injury alone.

of

this kind requires

impairment

that

injury alone.

ensue

from

injured
employer

would suffer if
by the

the

level of

work-related

In other words, an employer must present

evidence of the type and extent of

claimant

A showing

quantification of the

would

and

not previously disabled when

same work-related

establishes the

disability that the

level

injury.

Once

of disability

the

in the

absence of a pre-existing permanent partial disability,

____________________

10
News

Our opinion cites

Shipbuilding &

a number of cases

Dry Dock

Co.

The abbreviation,

News," refers only to this Fourth Circuit case.

____

-11-

involving Newport

"Newport
_______

an

adjudicative body

determine

whether

will have
the

a basis

ultimate

on which

permanent

to

partial

disability is materially and substantially greater.

8 F.3d at 185-86; see also Ingalls, 1997 WL 612743, *4.

___ ____ _______

employer

is

attributable to

required

to

show

the

degree

of

Thus, an

disability

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

percentage

related

need

of whole

injury,

ultimate permanent

show

medical

body impairment

that

impairment exists

the earlier

only

greater

after the

evidence

existed

percentage

before the

of

work-related injury,

partial disability was

that

body

and that

the

causally connected to

impairment to satisfy its burden of the contribution

a]

section

showing
8(f)

eviscerates

that

the

the

requirement

ultimate

permanent

from

partial

disability be materially and substantially greater than

a disability from
be,

by

the work-related injury

overlooking

related
level

work-

whole

element:

[Such

injury alone

the

alone would

possibility that

could cause

virtually

the

work-

the same

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

despite cases such as

need

language of Section

8(f), and

Newport News and Ingalls, emphasizing

____________
_______

the

to meet the "materially and substantially greater" standard

in partial disability

cases, some cases have permitted

contribution finding, or have failed

a looser

to consider the standard at

-12-

all.

See, e.g., Skelton v. Bath Iron Works Corp., 27 BRBS 28, *2

___ ____ _______
_____________________

(1993) (stating

may be

that the

met by

a showing "that

aggravated by claimant's

finding

that

greater as

8(f).

contribution requirement

the pre-existing

permanent

physical

the combination of the

However,

impairment

is

pre-existing and

injuries is clearly insufficient to satisfy Section

See Newport News, 8 F.3d at 184-85.

___ ____________

statutory

disability was

subsequent employment.").

claimant's

a result of

work-related

Section 8(f)

criteria

of

"materially

Failure to apply the

and substantially

greater"

constitutes error.

BIW'S SECTION 8(f) BURDEN APPLIED

I.

The

The ALJ's Findings and Conclusions

__________________________________

ALJ defined

the essential

elements

for Section

8(f)

relief

as:

partial

"(1) the

employee

had

a pre-existing

permanent

disability, (2) which was manifest to the employer prior

to the subsequent compensable injury, and (3) which combined with

the

subsequent

permanent

injury

to produce

or

increase

the employee's

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

experienced shortness of breath

since

at least

examined

by

Dr.

prior to knee
obesity

May of 1978

required to be

pre-operative

surgery, (3) that

and hypertension for

has

and pulmonary problems

as he was

Schall for

[claimant]

clearance

he has suffered

many years, (4)

from

that he

had a long history of cigarette smoking, i.e., at least

1

to 3

packs

stopped in

per day

for

1978, (5) that

forty years,

habit he

Claimant's asbestos-related

disease was first reported on his chest x-rays in April

-13-

of

1982, .

. (7)

tests, including
increase

of

worsening
Schall,

his subsequent

pulmonary function

his

of his

that

tests, showed

asbestos-related
shortness of

diagnostic

disease

breath,

and

(8) that

an
a
Dr.

as of December 5, 1983, opined that Claimant's

pulmonary impairment was

due to "a mixture

obstructive pulmonary disease

of chronic

and asbestosis with some

restrictive

component," (9)

obstructive

pulmonary disease is far more risky to him

and

is

(in) a

further

that Claimant's

advanced

state than

"chronic

is

his

asbestosis," (10) that he "has the concomitant problems

of

obesity,

chronic

osteoarthritis of
doctors

are

in

his

alcoholism

knees," .

agreement

and
. (12)

that Claimant's

severe
that

the

permanent

partial impairment
asbestos-related
hypertension,
diagnosed

is due

to the

disease,
his

i.e., his

obesity,

as ischemic

combination of

his

heart

asbestosis,
cardiac

his
his

problems

disease, (13)

that

the

doctors reiterated their opinions at their post-hearing

depositions

permanent disability is
of his pre-existing

[and]

(14)

that

Claimant's

the result of the

combination

permanent partial disability (i.e.

his pulmonary problems since at least May 18, 1978, his

chronic obesity, his chronic hypertension, his
problems

and his cigarette

100 pack years and as

injury,

. .

in combination

has

contributed

permanent disability,

. [.
with

to

concluded

from

category

of person

that Section 8(f)

classic

condition

of

employer would neither

pre-existing

greater
to

the evidence

condition, prior

His]

Dr.

his

work

degree

of

Schall,

Dr.

(citations to record omitted).

ALJ

"Claimant's

at least

the subsequent

according

Corbin and Dr. Killian.

The

smoking habit of

high as 120 pack years) and

work-related asbestosis
disability,

cardiac

to

that

was designed

his injury

high-risk

claimant

employee

in

fit

to protect:

1986, was

whom

the

the

cautious

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

mentions

different

proposition,11

the Section 8(f) requirement,

the

ALJ

in no

place

or makes a finding, that

the ultimate permanent disability is materially and substantially

greater

as

result of

disability which would

the

preexisting

disability

have resulted from the

than the

subsequent injury

alone.

II.

The Missing Assessment: the ALJ Opinion and the Record

______________________________________________________

Under the

LHWCA, Johnson's

1986, when he was diagnosed

compensable injury

occurred in

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,
____________
only

pulmonary

22 BRBS

78, 85 (1989),

problems

were

for the

relevant

to

proposition that
the

Section

8(f)

determination; physical
such

problems relating to

other impairments,

as claimant's knee injury, could not be considered.

section

of Adams
_____

"materially
of its

quoted

by

the ALJ,

the

and substantially greater"

general

pre-existing

Board mentions

the

requirement only as part

explanation that this standard

disability that impacts

In the

must be met by a

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

disease manifests

injury arises

years

later when

the

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

claimant

was diagnosed

suffered

from

disability

--

with --

time of

injury is the

and thus

twenty-five

percent

resulting from asbestosis.

date that

became aware

that he

permanent

partial

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
of reasonable

diligence or

becomes aware, or in the exercise

by reason

have been aware, of the relationship

disease, and the death or
and noting,

of medical

between the employment, the

disability," citing 33 U.S.C.

"[s]ince the issue before the

employer is going to have to pay

under [Section 910],

advice should

910(i)

court is how long the

the amount determined to be due

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

obstructive pulmonary conditions

1986.

The

evidence in

conclusion that

pulmonary

problems,

including

unrelated to asbestos prior

the medical

record supports

these problems, probably

to

the ALJ's

resulting from obesity

and

smoking, amounted to

employee whom

"the classic condition

a cautious employer

of a high-risk

would neither have

hired nor

retained in employment due to the increased likelihood that

an employee would

we need not

that

While

reach this issue to conclude this case, we note here

we agree

Section

sustain another occupational disease."

such

with

the

ALJ's finding

that

claimant met

the

8(f) criteria of suffering from a pre-existing permanent

disability prior to his work-related injury.

To

be

required to

entitled to

carry the

twenty-five percent

greater

than that

exposure alone.

of

Section 8(f)

burden of

relief, however,

demonstrating that

disability was materially

which would have

claimant's

and substantially

resulted from

To do this, BIW was required to show

disability attributable only

BIW was

the asbestos

the degree

to claimant's asbestosis.

See

___

Newport News, 8
_____________

compared

F.3d

at 185-86.

this information

with

Then,

the

ALJ should

claimant's twenty-five

have

percent

disability to determine whether the "materially and substantially

greater" standard had been met.

See id.
___ ___

____________________

Section 8(f).").

-16-

The ALJ,

discussed

however, made no

such determination.

He neither

the statutory requirement, nor applied it in analyzing

the facts of this case.

Further,

"materially

chosen

to

the

and

do

attributable

Nor

relating to

so.

No

the

evidence

greater"

evidence of

be deduced

the

from

claimant's non-asbestos-related

further

degree

Schall made this diagnosis in

than

1983.

apply

the

even had

he

of disability

ever presented.

the medical

injury.

that the non-related asbestos

advanced state

to

standard

claimant's asbestosis was

disability

Schall did state

in

lacked

substantially

only to

can such

ALJ

claimant's

records

While Dr.

lung disease was

asbestosis, Dr.

At that time,

claimant was

not

disabled

assessment,

as a

reporting

of

non-asbestos-related

on

claimant's

impairment.

was impacted

disability.

condition

in

1986,

contribution existed,

But

cannot properly form

earlier

Killian,

concluded

in

that

contributed to

he gave no indication of how

and included

claimant's "overall disability"

1983

to which

by an

Dr.

non-asbestos-related disability

claimant's overall disability.

establish the degree

compensable injury

claimant's prior

much

pulmonary

therefore, could not

claimant's 1986

existing

result

in

his assessment

claimant's knee problems,

part of a Section 8(f)

determination.

of

which

Dr.

Corbin provides the best evidence for BIW, stating, in 1987, that

claimant's

activity

"symptoms

are

of

shortness

significantly

deconditioning and obesity."

of

breath

contributed

However,

to

and

by

his

restricted

physical

even this report fails to

-17-

meet

the

statement

his

required standard.

Dr.

Corbin provides

general

that includes claimant's shortness of breath and spans

"restricted activity."

The

report does

extent to which claimant's pre-existing

his

permanent

partial

disability,

not

indicate the

condition contributed to

the

twenty-five

pulmonary impairment for which condition alone claimant

percent

received

compensation under the LHWCA.

Therefore, there being neither sufficient direct evidence of

the contribution

partial disability

of asbestosis

nor a

to claimant's

basis for

overall permanent

deducing such

contribution

from the contribution attributable to the pre-existing condition,

BIW has failed to carry its considerable burden.

-18-

CONCLUSION

Because we

record contains

current

determine that the

insufficient evidence

permanent

substantially

partial

greater than that

asbestosis alone, we do

by appellant.

ALJ failed to find,

For the

8(f) award to BIW.

to show,

disability

is

and the

that claimant's

materially

and

which would have

resulted from

not address the remaining

issues raised

reasons discussed, we reverse the Section

-19-