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2d 93
Jesse Parks is presently sixty-six years old. He began working on the docks as a
longshoreman in 1937, usually as a slingman who loaded and unloaded cargo.
Parks has a rather extensive history of medical problems. When he was sixteen
he sustained an eye injury, resulting in permanent total blindness in his right
eye. In 1945 he injured his lower back such that it required surgery and a rather
extensive layoff. He received compensation benefits for this injury. In 1968,
while employed by Clark & Son, he fractured his right foot (for which he was
compensated). From June 1973 until February 1974, Parks was disabled by a
number of illnesses and medical problems unrelated to his employment,
including pneumonia and an intestinal tumor which required surgical removal.
In April of 1974, he was hospitalized for stomach blockage. Following his
recovery, Parks returned to work on April 29, 1974.
On May 17, 1974, Parks sustained an injury to his left elbow. As a result he
underwent surgery to transplant the ulnar nerve. The parties agree that since the
May 17th injury Parks has been permanently and totally disabled. According to
medical evidence, at the time of his injury Parks was already suffering from an
existing left arm impairment brought about by cervical spondylosis.
permanent partial disability combined with the May 17th injury to produce
permanent total disability. Accordingly, the decision of the Benefits Review
Board must be reversed.
7
REVERSED.
The Honorable Walter E. Hoffman, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation
Where a subsequent injury and its effects are alone sufficient to cause
permanent total disability the mere presence of a pre-existing disability will not
warrant contribution from the special fund. Carpenter v. Potomac Iron Works,
Inc., 1 BRBS 332, BRB No. 74-208 (Feb. 28, 1975). See Maryland
Shipbuilding and Drydock Co. v. Director, Office of Workers' Compensation
Programs, United States Department of Labor, 618 F.2d 1082 at 1084 (4th Cir.
1980)
Under the applicable standard of review for administrative decisions under the
Longshoremen's Act, we may reverse only where there was an error of law or
when a finding of fact is unsupported by "substantial evidence on the record
considered as a whole." O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504,
508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951)
When dealing with Section 8(f) the employer should not be required to bear the
burden of showing that suitable alternate employment would have been
available for claimant with his arm injury. Cf. American Stevedores, Inc. v.
Salzano, 538 F.2d 933 (2d Cir. 1976) (In contexts other than Section 8(f) the
employer may have the burden of showing opportunities for work once a
disability is proven). Here, there was no evidence as to the availability of
alternate employment. See Maryland Shipbuilding and Drydock Co., supra, at
1085