UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND

DRY DOCK COMPANY,

Petitioner,

v.

No. 96-2659

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondent.

On Petition for Review of an Order

of the Benefits Review Board.

(95-3855-BRB)

Submitted: January 13, 1998

Decided: March 20, 1998

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Melissa R. Link, Jonathan H. Walker, MASON & MASON, P.C.,

Newport News, Virginia, for Petitioner. J. Davitt McAteer, Acting

Solicitor of Labor, Carol A. De Deo, Associate Solicitor, Luann B.

Kressley, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Newport News Shipbuilding & Dry Dock Company ["Newport

News"] petitions for review of an order of the Department of Labor's

Benefits Review Board ["the Board"]. The Board summarily

affirmed* the decision of an administrative law judge ["ALJ"] granting Charles W. Miles' claim for compensation benefits for asbestosis

under the Longshore and Harbor Workers' Compensation Act

["LHWCA"], 33 U.S.C. §§ 901-950 (1994), and denying Newport

News' request for relief under § 908(f) for pre-existing disability.

Newport News claims that the ALJ erred in determining that it did not

establish the contribution requirement of § 908(f). For the reasons set

forth below, we affirm.

Charles Miles, a pipecoverer and machinist, was exposed to airborne asbestos dust and fibers throughout the course of his employment with Newport News from 1952 until 1991. On March 4, 1992,

Miles was diagnosed with work-related asbestosis. Miles then filed a

claim for permanent partial disability under the provisions of the

LHWCA. The parties stipulated that Miles suffered a forty-five percent impairment and was entitled to compensation. In a proceeding

before the ALJ, Newport News sought relief pursuant to § 908(f) for

pre-existing disability.

For an employer to obtain a limitation of its compensation liability

under § 908(f) in the case of a permanent partial disability, the

employer must affirmatively establish (1) that the employee had an

existing permanent partial disability before the occurrence of the

_________________________________________________________________

*The Board never addressed the merits of the appeal. The ALJ's decision was affirmed by operation of law. See Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,

§ 101(d), 110 Stat. 1321-29 (1996).

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work-related injury, (2) that the pre-existing permanent partial disability was manifest to the employer prior to the subsequent workrelated injury, and (3) that the ultimate permanent partial disability

materially and substantially exceeds the disability that would have

resulted in the absence of the pre-existing disability. See Director,

OWCP v. Newport News Shipbuilding & Dry Dock Co. (Harcum), 8

F.3d 175, 182-83 (4th Cir. 1993), aff'd, 514 U.S. 122 (1995).

The Board summarily affirmed the ALJ's decision denying Newport News' request for § 908(f) relief because while Newport News

had established a pre-existing permanent partial disability and manifestation, it had not established contribution. Specifically, the ALJ

concluded that Newport News' physician's (Dr. Hall) medical opinion that twenty-five percent of the impairment results from heart disease and that twenty percent of the impairment is due to asbestosis

was mere speculation and conjecture and was therefore insufficient

under Harcum. The ALJ discredited Hall's opinion because Hall did

not explain how he quantified the level of impairment resulting from

the asbestosis alone.

We review the Board's decision for errors of law and to determine

whether the Board observed its statutorily-mandated standard for

reviewing the ALJ's factual findings. See Newport News Shipbuilding

& Dry Dock Co. v. Director, OWCP (Hess), 681 F.2d 938, 941 (4th

Cir. 1982). In turn, the Board's review of the ALJ's factual findings

is limited by the requirement that "[t]he findings of fact in the decision under review by the Board shall be conclusive if supported by

substantial evidence in the record considered as a whole." 33 U.S.C.

§ 921(b)(3) (1994). Because the ALJ's decision was affirmed by

default, there is no Board decision for the court to review; the ALJ's

findings of fact must therefore be upheld if supported by substantial

evidence.

We conclude that substantial evidence in the record as a whole supports the ALJ's factual findings. The record establishes that in 1982,

Miles was diagnosed with coronary atherosclerosis and then angina

pectoris and that thereafter Miles was hospitalized several times with

diagnoses of acute bronchitis, abnormal liver, anemia, hypercholesterolemia, with the major diagnosis as coronary artery disease. Further, the record indicates that in late 1991, a chest X-ray was

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abnormal. The record also establishes that Miles has asbestosis. The

record includes two reports prepared by Dr. Hall. Hall concluded that

Miles had pre-existing heart disease which contributed to and worsened Miles' asbestosis. Hall opined,

Mr. Miles' pulmonary examination of March 4, 1992, established a class 3 permanent impairment of 25-45 percent. The

Employer agreed with Claimant that his extent of disability

is presently 45 percent. However, the AMA rating and his

disability are not caused by his asbestosis alone. Mr. Miles'

lung impairment, AMA rating and disability are materially

contributed to and made materially and substantially worse

by his pre-existing heart disease. At least 25 percent of Mr.

Miles' present disability is cause by this per [sic]-existing

heart disease.

This evidence was uncontradicted by the Director.

We conclude that, based on the substantial evidence in the record

as a whole, the ALJ did not err in concluding that Newport News did

not establish that Miles' ultimate permanent partial disability is materially and substantially greater than the extent of impairment that

would result from asbestosis alone. See Harcum , 8 F.3d at 185-86.

The ALJ found that Hall's unsupported medical opinion testimony

was not sufficient to constitute "substantial evidence." See Hobbs v.

Clinchfield Coal Co., 45 F.3d 819, 822 (4th Cir. 1995); Shrader v.

Califano, 608 F.2d 114, 118 & n.4 (4th Cir. 1979); see also Smith v.

Director, OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988) (stating that

medical witness' credibility is question for trier of fact who can weigh

evidence and draw inferences). Thus, because we find that the ALJ's

findings were supported by substantial evidence in the record as a

whole and that the ALJ did not err, we affirm the Board's summary

order affirming the ALJ's decision by default. See Hess, 681 F.2d at

941.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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