Director, Office of Workers' Compensation Programs v. Bath Iron Works Corp.

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).

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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

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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.

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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

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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

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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."

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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

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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).").

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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

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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.

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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.

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