PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND No. 96-2654
DRY DOCK COMPANY,
Respondent,
and
CALLIS CARMINES,
Claimant.
On Petition for Review of an Order
of the Benefits Review Board.
(95-0440)
Argued: December 4, 1997
Decided: March 9, 1998
Before MURNAGHAN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Reversed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Motz and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Joshua Thomas Gillelan, II, Senior Attorney, Office of
the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Petitioner. Jonathan Henry Walker, MASON
& MASON, P.C., Newport News, Virginia, for Respondent. ON
BRIEF: J. Davitt McAteer, Acting Solicitor of Labor, Carol A.
De Deo, Associate Solicitor, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Peti-
tioner.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
A maritime worker exposed to asbestos during 30 years of employ-
ment filed a claim for disability benefits under the Longshore and
Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-
950. His employer did not contest the right to benefits for his asbesto-
sis. However, the employer argued that it should be relieved from
shouldering the full amount of the benefits, pursuant to the special
fund provision of § 908(f) of the LHWCA, because the worker's dis-
ability was due in part to pre-existing conditions.
An administrative law judge found that the employer merited
§ 908(f) relief because the worker's disability was materially and sub-
stantially greater than that which would have resulted from the asbes-
tosis alone, but for the pre-existing conditions of hypertensive
cardiovascular disease and pleurisy-related interstitial fibrosis. The
Director of the Office of Workers' Compensation Programs, United
States Department of Labor, ("Director") appealed the award of
§ 908(f) relief. Because there was not substantial evidence to support
the ALJ's award, we reverse.
I. BACKGROUND
A. The Claim under the LHWCA
Callis Carmines ("Claimant") was employed as a mechanic and
electrical supervisor at Newport News Shipbuilding and Dry Dock
Company from 1936 until his retirement in 1981. Newport News is
in the business of constructing and repairing ocean-going vessels.
2
Throughout his employment, the Claimant performed work related to
ship repair or construction on the navigable waters of the James River
and its adjacent piers and dry docks.
For over thirty years during this employment, from 1936 until
1968, the Claimant was daily exposed to large quantities of asbestos.
Sometimes he worked in environments where asbestos filled the air
so thickly as to form a white cloud of dust. Often he would nap in a
pile of asbestos during his lunch break.
In 1990, the Claimant's attending physician, Dr. Frank Robert,
arranged for him to be seen by a specialist, Dr. Laurie Moore, Jr. On
October 25, 1990, Dr. Moore diagnosed that the Claimant suffered
from pulmonary asbestosis. Based upon her examination of the
Claimant and her review of his chart, Dr. Moore opined that the
Claimant suffered a 25-30% permanent impairment of the whole per-
son due to his pulmonary asbestosis. This estimate was made pursuant
to the AMA Guidelines to the Evaluation of Permanent Impairment,
third edition.
The Claimant filed a claim for compensation benefits pursuant to
the LHWCA. The Claimant and Newport News stipulated that com-
pensation benefits should be paid to him for a work-related 28% per-
manent impairment pursuant to 33 U.S.C. § 908(c)(23). The parties
also agreed that the Claimant was entitled to compensation of $63.37
per week, payable from the time of diagnosis forward. Neither the
fact of compensation nor its amount are at issue here.
B. Section 908(f) Relief
The Longshore and Harbor Workers' Compensation Act estab-
lishes a statutory workers' compensation program for employees
injured in maritime work. See 33 U.S.C.§§ 901-950. Under the
LHWCA's "aggravation rule," if an injury at work aggravates an
employee's pre-existing disability, the employer is liable for the
employee's entire resulting disability, not only the disability that
would have been due to the work-related injury alone. See Newport
News Shipbuilding and Dry Dock Co. v. Fishel, 694 F.2d 327, 329
(4th Cir. 1982). "If this rule stood alone, it`would create a strong dis-
incentive for an employer to hire handicapped workers'" for fear of
3
having to pay for the entirety of their injuries if their pre-existing dis-
abilities were to be aggravated at work. Director, OWCP v. Luccitelli,
964 F.2d 1303, 1304 (2d Cir. 1992) (quoting Director, OWCP v. Gen-
eral Dynamics Corp. (Krotsis), 900 F.2d 506, 508 (2d Cir. 1990),
overruled in part on other grounds by Director, OWCP v. General
Dynamics Corp. (Bergeron), 982 F.2d 790, 793-95 (2d Cir. 1992)).
In order to relieve employers of this disincentive, Congress enacted
the special fund provision of 33 U.S.C. § 908(f).1 See Director,
OWCP v. Newport News Shipbuilding and Dry Dock Co. (Langley),
676 F.2d 110, 112 (4th Cir. 1982).
Section 908(f) still requires employers to pay the entire amount of
the weekly benefits to employees who are injured on the job, even if
the ultimate disability is due in part to a pre-existing disability. How-
ever, if the ultimate disability is "materially and substantially greater"
than that which would have resulted from the work-related injury
without the pre-existing condition, then the employer need only pay
_________________________________________________________________
1 Section 908(f) provides, in pertinent part:
(f) Injury increasing disability:
(1) In any case in which an employee having an existing per-
manent partial disability suffers injury, the employer shall pro-
vide 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 in which the employee has a permanent par-
tial 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 in addition to compensation under sub-
sections (b) and (e) of this section, compensation for one hun-
dred and four weeks only.
(2)(A) After cessation of the payments for the period of weeks
provided for herein, the employee or his survivor entitled to ben-
efits shall be paid the remainder of the compensation that would
be due out of the special fund established in section 944 of this
title . . . .
33 U.S.C. § 908(f) (emphasis added).
4
those benefits for 104 weeks (2 years). See Director, OWCP v. New-
port News Shipbuilding and Dry Dock Co. (Harcum), 8 F.3d 175, 182
(4th Cir. 1993) [hereinafter Harcum], aff'd on other grounds, 514
U.S. 122 (1995). After 104 weeks, the benefits are paid out of a spe-
cial fund administered by the Director of the Office of Workers'
Compensation Programs.2 See id. at 180-81.
To avail itself of § 908(f) relief where an employee suffers from a
permanent partial disability, an employer must affirmatively establish:
1) that the ultimate disability is not caused solely by the work-related
injury, but is also caused in part by a pre-existing partial disability;
2) that the pre-existing disability was manifest to the employer prior
to the work-related injury;3 and 3) that the ultimate permanent partial
disability materially and substantially exceeded the disability that
would have resulted from the work-related injury alone, in the
absence of the pre-existing condition. Harcum , 8 F.3d at 182-83. To
meet the third prong, an employer must quantify the type and extent
of the disability that the claimant would have suffered without the
pre-existing condition:
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 evi-
dence 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, an adjudicative body will have a basis on
which to determine whether the ultimate permanent partial
disability is materially and substantially greater.
_________________________________________________________________
2 As administrator of this fund, the Director has standing to appeal a
Benefits Review Board decision granting an employer relief under
§ 908(f). See id. at 180-81.
3 We do not apply the manifestation requirement in cases where the
worker suffers from a post-retirement occupational disease, such as the
typical case of asbestosis. See Newport News Shipbuilding and Dry Dock
Co. v. Harris, 934 F.2d 548, 553 (4th Cir. 1991).
5
Id. at 185-86.
The crucial point for the instant case is that it is not enough for an
employer to show that the pre-existing condition led to a serious dis-
ability, if the work-related injury would itself have led to the same or
a greater disability: § 908(f) relief is only available if the ultimate dis-
ability is substantially greater than that which would have arisen
absent the pre-existing disability. For example, assume a claimant had
the pre-existing condition of a paralyzed leg, which is a permanent
partial disability. If that leg were amputated in a work-related acci-
dent, the claimant now having a paralyzed leg-stump would still suf-
fer from the same permanent partial disability (i.e., no use of one leg)
from which he would have suffered if his amputated leg had never
been paralyzed in the first place. With or without the pre-existing dis-
ability of paralysis, amputation leads to loss of one leg. In this exam-
ple, no relief under § 908(f) would be available to the employer
because the ultimate permanent partial disability is not "materially
and substantially greater" than it would have been without the pre-
existing condition, it is the same. See generally Luccitelli, 964 F.2d
at 1305-06 (making an analogous argument regarding a claimant with
a pre-existing disability of the right knee and a work-related injury of
the left knee).
In our case it is not enough for Newport News to demonstrate that
the Claimant had a pre-existing condition that led to a permanent dis-
ability of the lungs if the asbestosis would itself have led to the same
permanent disability with or without the pre-existing condition. New-
port News's in-house physician asserted that the Claimant had sub-
stantial pre-existing lung scarring due to pleurisy, but that assertion
is irrelevant for § 908(f) relief if the later asbestosis would inevitably
have ruined either scarred or healthy lungs.
This is the proper result because the employer should have to pay
for the entirety of the injury caused by the work-related accident, even
if the employee had a pre-existing disability. Section 908(f) was
adopted to prevent an employer from being additionally liable when
an injury befalls a previously disabled employee; it should not now
confer a windfall on those employers by relieving them from the full
liability for work-related injuries where the injured employee happens
to have been previously disabled.
6
C. The Evidence Offered by Newport News
The only issue to be resolved by the ALJ was whether Newport
News was entitled to § 908(f) relief, shifting the liability for the
Claimant's permanent disability to the special fund after two years.
Newport News asserted that such relief was warranted because the
Claimant's disability was not caused solely by the asbestosis, but was
exacerbated by two pre-existing conditions.
In support of its request for limitation of its liability pursuant to
§ 908(f), Newport News initially submitted a letter from its in-house
physician, neurologist-psychiatrist Dr. James H. Hall III. Based on his
review of the Claimant's medical records but without examining him,
Dr. Hall opined that the Claimant had pre-existing disabilities in the
form of "hypertensive cardiovascular disease" and pleurisy-related
"lung scarring/interstitial fibrosis." Letter from Dr. Hall to Mr. Paul
Hartmann of Oct. 13, 1992, at 1 [hereinafter first Dr. Hall letter]. Dr.
Hall opined that the Claimant's lung impairment, AMA rating and
disability were not caused by his asbestosis alone, but were materially
contributed to and materially and substantially caused by his pre-
existing hypertensive cardiovascular disease and lung scarring/
interstitial fibrosis. Dr. Hall stated that, if the Claimant merely had
asbestosis, his disability and impairment rating would have been sig-
nificantly less. See id. at 2.
More than a year later, shortly after the hearing before the ALJ and
following this Circuit's decision in Harcum, Newport News filed with
the ALJ a second letter from its medical department"supplement[-
ing]" the earlier letter. See letter from Dr. Hall to Mr. Hartmann of
Nov. 30, 1993 [hereinafter second Dr. Hall letter]. The supplement
quantified the Claimant's disability as the agreed-upon 28 percent
AMA rating, and opined that if the claimant only had asbestosis, his
AMA rating would be no more than 10%. See id. at 1. This opinion
was based not on an independent evaluation of the seriousness of the
Claimant's asbestosis or the degree of the disability caused by that
asbestosis, but rather "on the long-standing x-ray evidence of prior
lung scarring before the asbestosis, and the pulmonary impairment
such scarring causes." Id.
In his Decision and Order, the ALJ accepted Dr. Hall's opinion that
the Claimant suffered from hypertensive cardiovascular disease and
7
from "pulmonary pleurisy, which left a permanent and serious inter-
stitial fibrosis in the worker's lungs." Carmines v. Newport News
Shipbuilding and Dry Dock Co., No. 93-LHC-1051, slip op. at 6 (Oct.
11, 1994). Crediting Dr. Hall's "uncontested opinion, which is persua-
sive because it is supported by the medical records of the shipyard
clinic, hospital records, and the test records," the ALJ found that the
claimant's disability was materially and substantially greater than
would have resulted from the asbestosis alone. Id. at 7. Accordingly
he held that Newport News qualified for § 908(f) relief from the spe-
cial fund. See id. at 7-8.
The Director appealed this finding to the Benefits Review Board,
which affirmed the ALJ's decision by operation of law.4 The question
before us is whether the evidence presented to the ALJ was sufficient
to support his finding that Newport News warranted§ 908(f) relief.
II. ANALYSIS
We will uphold the factual findings of the ALJ so long as they are
"supported by substantial evidence in the record considered as a
whole." 33 U.S.C. § 921(b)(3) (1983); see Newport News Shipbuild-
ing and Dry Dock Company v. Tann, 841 F.2d 540, 543 (4th Cir.
1988). We will not disregard these findings merely"on the basis that
other inferences might have been more reasonable. Deference must be
given the fact-finder's inferences and credibility assessments, and we
have emphasized the scope of review of ALJ findings is limited." Id.
Nevertheless, to be sufficient the evidence must be"such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quot-
ing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))
(internal quotation marks omitted); See v. Washington Metro. Area
Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The ALJ may not
merely credulously accept the assertions of the parties or their repre-
_________________________________________________________________
4 Pursuant to the Department of the Interior and Related Agencies
Appropriations Act, 1996, Pub. L. No. 104-134, Title I, § 101(d), 110
Stat. 1321, *1321-219 (1996), an appeal under the LHWCA that had
been pending before the Benefits Review Board for more than one year
on September 12, 1996, was considered affirmed as of that date.
8
sentatives, but must examine the logic of their conclusions and evalu-
ate the evidence upon which their conclusions are based.5
Of course the ALJ's legal determinations are reviewed de novo.
This includes the standard by which he determines entitlement to
§ 908(f) relief. See Harcum, 8 F.3d at 179.
The only evidence in the record to support the ALJ's conclusion
that the claimant's ultimate disability was materially and substantially
greater than it would have been without the pre-existing conditions of
hypertensive cardiovascular disease and pleurisy were the assertions
of Dr. Hall, Newport News's in-house physician who neither exam-
ined nor treated the Claimant. However, the bulk of the medical evi-
dence submitted by both parties was contrary to Dr. Hall's opinion.
The evidence in the record considered as a whole could not have con-
vinced a reasonable mind that the Claimant's disability was materially
exacerbated by pre-existing conditions. Even if we were to defer to
the ALJ's findings of fact, the evidence was insufficient as a matter
of law to entitle Newport News to § 908(f) relief.
A. Hypertensive Cardiovascular Disease
Newport News's physician, Dr. Hall, attested that the claimant suf-
fered from hypertensive cardiovascular disease and that the Claim-
ant's "lung impairment, AMA rating and disability are materially and
substantially contributed to and materially and substantially caused
by" the disease. First Dr. Hall letter, at 2. However Dr. Hall never
treated or even examined the Claimant. The only evidence in the
record that provided support for Dr. Hall's "diagnosis" was a dis-
charge summary from when the claimant was treated for epididymitis
in 1974, which refers to a "history of hypertension." (J.A. at 18.)
_________________________________________________________________
5 A useful analogy can be drawn to the ALJ's role in Black Lung cases.
There we have held that "the testimony of a non-examining, non-treating
physician should be discounted and is not substantial evidence" if it is
"totally contradicted by other evidence in the record." Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984); see also Eagle v. Armco,
Inc., 943 F.2d 509, 511 n.1 (4th Cir. 1991) (same). The ALJ may not
merely credit the doctor's opinion, but must evaluate that opinion in light
of the other evidence in the record.
9
There was no evidence whatsoever that the Claimant ever developed
any symptoms of hypertensive cardiovascular disease after this single
finding of "some beginning elevation of his blood pressure." (J.A. at
18.) Nor did Dr. Hall point to any other evidence of hypertensive car-
diovascular disease. Instead, he merely asserted that this single
twenty-two-year old notation demonstrated "a long history of hyper-
tension -- the first stage of hypertensive cardiovascular disease, as
early as 1974." First Dr. Hall letter, at 1 (citing only the 1974 dis-
charge sheet).
By contrast, the medical records of the doctors who actually exam-
ined the Claimant make no reference to hypertensive cardiovascular
disease. The specialist who first diagnosed the Claimant's asbestosis,
Dr. Moore, was aware of the past hypertension in his medical records.
However, after a review of the Claimant's chart and an office exami-
nation of him, Dr. Moore attributed the Claimant's disability wholly
to asbestosis, without mention of any cardiovascular disease. See let-
ter from Dr. Laurie Moore, Jr., to Mr. Gary West of Aug. 12, 1992,
at 1 [hereinafter Dr. Moore letter]. Dr. James Baker also examined the
Claimant at the request of his treating physician, Dr. Frank Robert.
Dr. Baker thoroughly described the Claimant's past medical history
as well as his current condition, but made no mention of any cardio-
vascular disease. See letter from Dr. James Baker to Dr. Frank Robert
of Sept. 18, 1991, at 1-3.
The single twenty-two-year-old diagnosis of the beginning of high
blood pressure is not substantial evidence in the record sufficient to
persuade a reasonable mind that the claimant now has hypertension,
much less that hypertensive cardiovascular disease contributed to the
disability from the Claimant's asbestosis. Nevertheless, the ALJ
accepted Dr. Hall's assertion that part of the Claimant's disability was
caused by hypertensive cardiovascular disease, and further that the
Claimant's disability was made substantially and materially worse by
this disease. In defense of the ALJ's finding, Newport News asserts
that "[g]iven the original diagnosis in 1974, that twenty plus years
that elapsed since then, it was certainly reasonable for Dr. Hall to con-
clude that [the Claimant's] impairment was due in part to his pre-
existing hypertensive cardiovascular disease." Brief of Respondent at
21. This is ridiculous. That the only evidence of the Claimant's suf-
fering from hypertension is a solitary notation more than twenty years
10
old would lead a reasonable person to the very opposite conclusion,
namely, that the Claimant is not currently suffering from hypertensive
cardiovascular disease.
Newport News also insists that the ALJ was right to accept Dr.
Hall's medical opinion regarding hypertensive cardiovascular disease
because it was "uncontradicted." This is irrelevant. The Director was
not a party to the original administrative hearing, and the Claimant
had no interest in whether the employer or the government paid his
benefits. Perhaps the Director ought to have intervened and submitted
evidence at the hearing before the ALJ. His failure to do so does not
affect whether the evidence that was offered was sufficient to support
the ALJ's conclusion, however.
Furthermore, because the employer never offered any evidence
quantifying the disability that the Claimant would have suffered
absent the alleged hypertensive cardiovascular disease, the ALJ had
no basis upon which to determine that the Claimant's ultimate disabil-
ity was materially and substantially greater than it would have been
without the pre-existing disability. Our decision in Harcum requires
a "quantification of the level of impairment that would ensue from the
work related injury alone," in order to determine whether the ultimate
disability is materially and substantially greater than that which would
have resulted from the work related injury absent the pre-existing
condition. See Harcum, 8 F.3d at 185. Newport News's supplemen-
tary letter, attempting to meet Harcum's quantification requirement,
reasserted that the Claimant suffered from hypertensive cardiovascu-
lar disease but never quantified the degree of disability that the
Claimant would have suffered absent the cardiovascular disease. See
second Dr. Hall letter. Instead, Dr. Hall limited his quantification to
the degree of disability the claimant would have suffered absent
"prior lung scarring." Id.
The evidence of the pre-existing disability of hypertensive cardio-
vascular disease was insufficient to support § 908(f) relief as a matter
of law. See Harcum, 8 F.3d at 185-86. We now address whether the
ALJ's award may be sustained based upon the evidence of pre-
existing lung scarring/interstitial fibrosis.
11
B. Pleurisy-Related Lung Scarring/Interstitial Fibrosis
The Claimant's medical records document three instances of pleu-
risy (an inflammation of the air sacks in the lungs, the pleura), in
1948, 1954 and 1960. Dr. Hall opined that the Claimant's "lung
scarring/interstitial fibrosis," noted in x-rays from 1967, 1968, 1970,
1973, 1979 and 1981, was due to these bouts of pleurisy. First Dr.
Hall letter, at 1. He claimed that the lung scarring was a "pre-existing
condition[ ]," which, because of its permanent and serious nature,
itself caused substantial impairment and contributed to the Claimant's
lung impairment caused by the asbestosis. Id. at 1-2.
The lung scarring was first identified in an x-ray of January 30,
1967, seven years after the final instance of pleurisy but during the
culmination of more than three decades of daily exposure to asbestos.
That original x-ray noted "old scarring" in the right middle lobe of the
Claimant's lungs, which could possibly have been due to the old pleu-
risy. (J.A. at 14.) However, subsequent x-rays document the progres-
sive scarring of the Claimant's lungs, noting " increased interstitial
fibrosis" in 1968, scarring in the right lower lobe in 1970, and pleural
thickening on the left in 1973. (J.A. at 14-15 (emphasis added).) The
scarring was eventually diagnosed, in 1990, as asbestosis.
There is no evidence of any bouts of pleurisy after 1960 to explain
the progressive lung scarring, nor is there any evidence that the old
pleurisy in 1948, 1954 or 1960 could have caused such progressive
lung disease throughout the next few decades.6 On the contrary, Dr.
Moore explained that the scarring, seen on an x-ray in 1990, was
"consistent with pulmonary asbestosis." (J.A. at 20.) Dr. Moore knew
of the Claimant's history of pleurisy, but after examining him opined
that his 25-30% impairment was "due to his pulmonary asbestosis"
without making any mention of the pleurisy. Dr. Moore letter.
Nevertheless, the ALJ credited Dr. Hall's opinion and found that
the Claimant's permanent partial disability was not due solely to the
_________________________________________________________________
6 Dr. Hall's letter attributing the scarring to pleurisy implies that the
same scarring is seen on the x-rays from 1967 through 1981. He does not
seem to realize that these x-rays and accompanying medical records
describe a progressive increasing of the lung scarring/interstitial fibrosis.
12
asbestosis, but that the disability was "materially and substantially
greater than that which would have resulted from the asbestosis alone
but for the pre-existing conditions," including the lung scarring/
interstitial fibrosis. Carmines, No. 93-LHC-1051, slip op. at 7. It is
the Administrative Law Judge's prerogative to select the inference
that is most reasonable from the evidence. But even were we to accept
the ALJ's dubious finding, the evidence is still insufficient as a matter
of law to support § 908(f) relief.
In Newport News's supplementary letter, Dr. Hall reasserted that
the Claimant's AMA rating due to his disability was 28%. In an
attempt to meet Harcum's requirement that an employer quantify the
degree of disability that would have occurred without the pre-existing
conditions, Dr. Hall explained:
If [the Claimant] merely had asbestosis, his AMA rating
would be no more than 10%. I based this opinion on the
long-standing x-ray evidence of prior lung scarring before
the asbestosis, and the pulmonary impairment such scarring
causes. By the time a chest x-ray shows scarring, it is signif-
icant and causes substantial pulmonary impairment.
Second Dr. Hall letter, at 1 (emphasis added). We have already
explained that the "long-standing x-ray evidence" is not actually
"prior" lung scarring, but rather begins after three decades of exposure
to asbestos and was eventually diagnosed as asbestosis. Moreover, the
reasoning that Dr. Hall used is precisely the invalid reasoning
described above at pages 6-7: Dr. Hall found that asbestosis
accounted for no more than 10 of the 28% impairment that the Claim-
ant suffered because the pre-existing pulmonary impairment was
itself quite substantial -- apparently 18 of the 28%. This was not
proper quantification because the seriousness of the supposed
pleurisy-related scarring is irrelevant to the seriousness of the asbesto-
sis.
Harcum requires that Dr. Hall determine what the Claimant's dis-
ability would have been independent of the pre-existing injury. It is
not proper simply to calculate the current disability and subtract the
disability that resulted from the pre-existing injury (which is what Dr.
Hall did). Perhaps the Claimant's asbestosis from 30 years of expo-
13
sure was serious enough to lead to a 28% disability rating whether he
got that asbestosis after having healthy lungs or after having lungs
that were scarred by pleurisy. In that case, regardless of how serious
the damage due to pleurisy was, it could not be said that the ultimate
disability was "materially and substantially greater" than it would
have been without the pleurisy -- it would have been a 28% disability
either way.
We have previously recognized the analogous proposition that
"[w]here 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." John
T. Clark & Son of Maryland, Inc. v. Benefits Review Board, 621 F.2d
93, 95 & n.2 (4th Cir. 1980). And other cases have recognized this
understanding of § 908(f). For example, the Second Circuit has
rejected the proposition that the mere fact that the claimant had a pre-
existing impairment can establish that the resulting disability was
materially greater than it would have been absent the pre-existing
impairment. See Luccitelli, 964 F.2d at 1305-06. Where a claimant's
work-related knee injury was enough totally to disable him, the Sec-
ond Circuit held that the extent of disability resulting from a previous
knee injury was irrelevant. See id.
In the instant case, the ALJ should have determined what degree
of disability the Claimant would have suffered from his asbestosis
alone. To meet its burden, the employer should have offered evidence
from a doctor, such as a treating physician, who could testify to the
extent and seriousness of the asbestosis suffered by the Claimant and
the degree of disability it would have caused alone. 7 Such evidence
is necessary before the ALJ can compare that degree of disability that
would have resulted solely from the asbestosis to the degree of dis-
ability ultimately produced by the combination of the asbestosis and
the supposed pre-existing conditions. Without such evidence, the
_________________________________________________________________
7 The only such evidence available here was Dr. Moore's opinion that
the Claimant "has a 25-30% impairment of the whole person, due to his
pulmonary asbestosis." Dr. Moore letter. Because this opinion attributes
the entirety of the Claimant's disability to asbestosis, it undermines a
finding that the Claimant's ultimate 28% disability was materially and
substantially contributed to by pre-existing conditions.
14
mere assertion by the employer's in-house physician that the Claim-
ant's ultimate disability was made materially and substantially worse
by the pre-existing conditions is not sufficient to warrant § 908(f)
relief.
III.
Because there was not sufficient evidence in the record as a whole
to support the ALJ's judgment that the Claimant's disability was
materially greater than it would have been without the pre-existing
conditions of hypertensive cardiovascular disease and pleurisy, the
award of § 908(f) relief is hereby
REVERSED.
15