PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND 

DRY DOCK COMPANY,

Petitioner,

v.  No. 00-1279 WESLEY E. CHERRY; DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents. 

On Petition for Review of an Order

of the Benefits Review Board.

(99-472-BLA)

Argued: January 22, 2001

Decided: April 14, 2003

Before WIDENER and KING, Circuit Judges, and

David A. FABER, Chief United States District Judge for the

Southern District of West Virginia, sitting by designation.

Petition for review denied by published opinion. Judge King wrote

the opinion, in which Chief Judge Faber joined. Judge Widener wrote

a concurring and dissenting opinion. 

COUNSEL

ARGUED: Benjamin McMullan Mason, MASON, COWARDIN &

MASON, Newport News, Virginia, for Petitioner. Andrew David
Auerbach, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF: Jonathan H. Walker,

MASON, COWARDIN & MASON, Newport News, Virginia, for

Petitioner. Henry L. Solano, Solicitor of Labor, Carol A. De Deo,

Associate Solicitor, Mark Reinhalter, Senior Attorney, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for

Respondent Director.

OPINION

KING, Circuit Judge:

Wesley Cherry injured his back at work on September 12, 1995.

He is receiving ongoing "permanent partial disability" benefits from

his employer, Newport News Shipbuilding & Dry Dock Company

("Newport News"), pursuant to §§ 4 and 8(c)(21) of the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (the

"Act" or "LHWCA"). Newport News sought relief under § 8(f) of the

LHWCA, which limits an employer’s liability to two years of benefits

when a pre-existing disability substantially aggravates a work-related

injury.1

On January 6, 1999, an Administrative Law Judge (the "ALJ")

denied the request of Newport News for relief under § 8(f). Cherry v.

Newport News Shipbldg. & Dry Dock Co., 98-LHC-41, Decision and

Order Denying 8(f) Relief (Jan. 6, 1999) (the "ALJ Decision"). The

1Section 8(f) provides in pertinent part: 

[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). After 104 weeks, the Office of Workers’ Compensation Programs ("OWCP"), which administers a special fund established

by Congress, is responsible for disability payments if the employer is

relieved under § 8(f). §§ 908(f)(2)(A), 944. 

2 NEWPORT NEWS SHIPBUILDING v. CHERRY
Benefits Review Board (the "BRB") affirmed on January 28, 2000.

Cherry v. Newport News Shipbldg. & Dry Dock Co., 99-0472, Decision and Order (Jan. 28, 2000) (the "BRB Decision"). Newport News

now petitions for our review, see 33 U.S.C. § 921(c), asserting that

the BRB Decision was in error. We disagree with Newport News, and

we conclude that the BRB correctly decided that the ALJ Decision

was supported by substantial evidence. Accordingly, we deny the

petition for review. 

I.

A.

Cherry began working for Newport News in 1980. On March 26,

1987, he was working as a pipefitter when he sustained an injury to

his back while lifting heavy sections of pipe. Physicians employed by

Newport News diagnosed Cherry with a lumbar strain. Cherry was

placed on work restrictions for ten days, which limited his lifting to

less than twenty pounds during that time period. 

Over five years later, on September 15, 1992, Cherry again injured

his back at work while lifting pipe. For this injury, Cherry was treated

by Dr. James Reid, a Newport News company physician. Dr. Reid

diagnosed Cherry with a lumbosacral sprain, and he placed Cherry on

work restrictions for fourteen days. Under these restrictions, Cherry

was prohibited from lifting more than thirty pounds, and he was also

limited to "minimal bending and stooping." 

On September 12, 1995 — almost three years after the second back

injury incident — Cherry strained his back a third time. This time his

injuries were not temporary, and Cherry’s treating neurosurgical specialist, Dr. Alfred Magness, assigned Cherry to permanent work

restrictions. 

On May 13, 1998, Dr. Reid, in response to Newport News’s

request for a medical opinion about the cause of Cherry’s disability,

reviewed Cherry’s medical records, including those relating to his

own treatment of Cherry and Cherry’s outside treatment. In his report,

Dr. Reid concluded: 

NEWPORT NEWS SHIPBUILDING v. CHERRY 3
Mr. Cherry’s pre-existing condition of chronic back disability [was] permanent and serious. . . . Mr. Cherry’s disability

is not caused by his September 12, 1995 back injury alone,

but rather his disability is materially contributed to, and

made materially and substantially worse by his pre-existing

chronic back disability[.] Mr. Cherry’s September 12, 1995

injury was rather minor. If he had had a normal back, it

would have resolved with no permanent disability. 

On May 27, 1998, Newport News sent Dr. Reid’s report to Dr. Magness and gave him the option of indicating whether he agreed with it.

Dr. Magness indicated his agreement with Dr. Reid’s report by checking a blank space on the transmittal letter and returning the letter to

Newport News. 

B.

Newport News filed a petition for relief under § 8(f) of the

LHWCA. Under § 8(f), an employer’s liability for an employee’s permanent partial disability caused by a work-related injury is limited to

two years if the employer can affirmatively establish three elements:

(1) the ultimate disability is caused in part by a pre-existing partial

disability; (2) the pre-existing disability was manifest to the employer

prior to the work-related injury; and (3) the ultimate 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. See Director, OWCP v. Newport News Shipbldg. & Dry

Dock Co. (Carmines), 138 F.3d 134, 138-39 (4th Cir. 1998). 

In this case, the ALJ considered the evidence proffered by Newport

News, but found that Dr. Reid’s report "does not support a conclusion" that Cherry suffered from a "pre-existing disability." ALJ Decision at 6. Alternatively, the ALJ held that Newport News "offered no

evidence that [Cherry’s] ultimate injury was materially and substantially worsened by the pre-existing conditions," determining that Dr.

Reid’s conclusions on the issue were "pure conjecture."2Id. Similarly,

2Although he did not do so, the ALJ could have questioned Dr. Reid’s

findings on additional grounds. To begin with, Dr. Reid is employed by

4 NEWPORT NEWS SHIPBUILDING v. CHERRY
the ALJ found that Dr. Magness’s indication of agreement with Dr.

Reid on the transmittal letter was "without supporting evidence and

accompanying analysis," and was of "little weight." Id. Accordingly,

the ALJ held that Newport News had failed to affirmatively establish

that it was entitled to relief under § 8(f), and he denied its request for

relief. Newport News appealed the adverse decision to the BRB,

which affirmed the ALJ in all respects. 

II.

In evaluating the BRB Decision, we must determine "whether the

[BRB] observed its statutorily-mandated standard for reviewing the

ALJ’s factual findings." Newport News Shipbldg. and Dry Dock Co.

v. Stallings, 250 F.3d 868, 871 (4th Cir. 2001) (quotations and citations omitted). Pursuant to § 921(b)(3) of the LHWCA, the ALJ’s factual findings "shall be conclusive if supported by substantial evidence

in the record considered as a whole." § 921(b)(3). 

We have consistently described substantial evidence as "more than

a scintilla but less than a preponderance." Newport News Shipbldg.

and Dry Dock Co. v. Faulk, 228 F.3d 378, 380-81 (4th Cir. 2000) (citing Elliott v. Adm’r, Animal & Plant Health Inspection Serv., 990

F.2d 140, 144 (4th Cir. 1993)). Furthermore, the ALJ’s findings "may

not be disregarded 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." Newport News Shipbldg. & Dry

Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). 

III.

There is no dispute that Cherry’s pre-existing injuries of 1987 and

1992 were manifest to Newport News, thus establishing the second

Newport News, which of course stood to benefit from § 8(f) relief. Moreover, Dr. Reid’s report is replete with clerical and medical errors, including an error in describing Cherry’s hearing loss, as well as the proper

medical standard for hearing loss. Although the question of Cherry’s

hearing loss is not before us, the ALJ found that "Dr. Reid misstated the

standard for hearing impairment, misstated the evidence, and reached an

entirely insupportable conclusion" on that issue. ALJ Decision at 6. 

NEWPORT NEWS SHIPBUILDING v. CHERRY 5
element of the three-element test. See supra Part I.B. Thus, the only

issues arising in this petition for § 8(f) relief are whether the remaining two elements are satisfied, that is, (1) whether Cherry’s back injuries in 1987 and 1992 constituted a pre-existing partial disability, and,

if so, (2) whether his permanent disability was materially and substantially greater as a result. 

The ALJ addressed these issues in alternative findings. He determined that (1) Cherry’s previous back injuries did not constitute a

pre-existing disability; and (2) that, even if Cherry had a pre-existing

condition, his 1995 injury was not thereby made materially and substantially greater. Either of these findings, if sustained, would warrant

denial of § 8(f) relief. Newport News assigns error on both issues,

contending that the ALJ’s findings are not supported by substantial

evidence. 

A.

The only evidence presented to the ALJ regarding the extent of

Cherry’s earlier back injuries — and the possible contribution of

those injuries to his permanent disability — were the reports of Dr.

Reid and Dr. Magness.3 The ALJ, however, declined to credit the

medical reports. Newport News contends that the "ALJ and Board

substituted their medical opinion in place of the consistent and uncontradicted medical opinions of two treating physicians." Consequently,

it maintains that there was no basis for the ALJ to rule that Newport

News had not met its burden under § 8(f). 

On this record, we have no trouble concluding that the ALJ reasonably determined that Cherry’s temporary back injuries of 1987 and

1992 were not lasting physical problems that would constitute an "existing partial disability" under § 8(f). As then-Judge Scalia observed,

"the mere fact of past injury does not itself establish disability. There

3Neither Cherry nor the Director submitted any evidence on this point.

The ALJ instead rendered his decision based on stipulations entered into

by the parties, as well as various exhibits submitted by Newport News.

Significantly, the parties voluntarily agreed to forgo the opportunity to

present live testimony and orally argue their respective positions before

the ALJ. 

6 NEWPORT NEWS SHIPBUILDING v. CHERRY
must exist, as a result of that injury, some serious, lasting physical

problem." Director, OWCP v. Belcher Erectors, 770 F.2d 1220, 1222

(D.C. Cir. 1985). 

Although Newport News has put forth evidence that Cherry’s previous back injuries were serious and permanent, inasmuch as they

caused a "weakened defective back structure," we think the ALJ was

well within his discretion to discredit this testimony as "pure conjecture . . . bereft of supporting data or medical analysis." ALJ Decision

at 6. Furthermore, the medical evidence proffered by Newport News

was countered by powerful circumstantial evidence: Cherry’s previous injuries came with no permanent work restrictions, and Cherry

successfully returned to work for several years between injuries. In a

similar case, CNA Ins. Co. v. Legrow, 935 F.2d 430 (1st Cir. 1991),

the Court of Appeals for the First Circuit analyzed a § 8(f) petition

where the employee had suffered previous back injuries, but each

time eventually returned to work without any restrictions. Id. at 433.

In Legrow, the ALJ had granted the employer relief under § 8(f), but

the Board reversed for lack of substantial evidence supporting the

ALJ’s decision. Id. at 435-36. The First Circuit affirmed the Board’s

reversal of the ALJ, noting that "Legrow resumed regular physical

labor after recovering from each of his previous back injuries." Id. at

436. 

Here, like the claimant in Legrow, Cherry resumed full and unrestricted work following both of his previous back injuries. That

Cherry was medically cleared, without any restrictions — to lift

heavy pipes — strongly suggests that he was not suffering from a partial disability on September 12, 1995, when he permanently injured

his back. Thus, the ALJ’s determination that Cherry did not suffer

from a pre-existing disability is supported by substantial evidence. 

B.

Since the ALJ properly found that Cherry did not have a preexisting disability in 1995, our resolution of Newport News’s contention that Cherry’s putative condition contributed to his permanent disability is not essential to our determination of this appeal. However,

because of an error made by the ALJ in that connection, we briefly

address the issue. 

NEWPORT NEWS SHIPBUILDING v. CHERRY 7
The ALJ recognized the inescapable logic that a permanent partial

disability cannot be made worse by a pre-existing disability if there

is no pre-existing disability to begin with. In so concluding, however,

the ALJ incorrectly asserted that "the Employer has offered no evidence with which I could quantify the degree of the September 12,

1995 back injury absent the pre-existing conditions." ALJ Decision at

6. This finding — although rendered irrelevant to our final decision

— was significant in light of our holding in Carmines, under which

an employer must show "quantification of the level of impairment

that would [have ensued if the claimant were] not previously disabled." 138 F.3d at 139. The BRB accepted the ALJ’s conclusion that

Newport News failed to meet its quantification burden, noting that,

under Carmines, "this finding alone is sufficient to preclude entitlement to Section 8(f) relief." BRB Decision at 5. 

In Carmines we held that, in order to avail themselves of § 8(f)

relief, employers must present evidence quantifying the degree of permanent partial disability the claimant would have suffered absent the

pre-existing condition. 138 F.3d at 139, 143. The intent of § 8(f) is to

remove the disincentive to employ persons with pre-existing conditions (who might be more susceptible to injuries that will ultimately

be the responsibility of the employer) by relieving the employer of

full liability for benefits when a pre-existing condition known to the

employer causes or exacerbates a subsequent, work-related permanent

disability. Id. at 138. We noted, however, that employers should not

receive a windfall under § 8(f) just because the employee happened

to have a pre-existing disability at the time of the permanent injury.

Id. at 139. Thus, we concluded, employers were only entitled to relief

to the extent the employee’s permanent disability was made materially and substantially greater by the existence of the pre-existing condition. To determine whether this standard has been met, the

employer must quantify the type and extent of disability the employee

would have suffered in the absence of the previous injury, so that the

"adjudicative body will have a basis on which to determine whether

the ultimate permanent partial disability is materially and substantially greater." Id. (quoting Director, OWCP v. Newport News Shipbldg. & Dry Dock Co. (Harcum), 8 F.3d 175, 185-86 (4th Cir. 1993)).

In this instance, Newport News in fact introduced evidence (in the

form of Dr. Reid’s letter) that "[if Cherry] had had a normal back, [his

8 NEWPORT NEWS SHIPBUILDING v. CHERRY
September 12, 1995 injury] would have resolved with no permanent

disability." Thus, according to Dr. Reid’s diagnosis, Cherry’s condition was not merely exacerbated by the alleged pre-existing condition,

it was entirely caused by that condition. In submitting its evidence

from Dr. Reid, Newport News appropriately sought to satisfy the

quantification requirement of Carmines. Therefore, the ALJ incorrectly concluded that Newport News had offered "no evidence [quantifying] the degree of the September 12, 1995 back injury absent the

pre-existing conditions." This evidence, however, was properly

rejected by the ALJ as "pure conjecture." See Newport News Shipbldg. & Dry Dock Co. v. Ward, No. 00-1978 (4th Cir. Apr. 14, 2003)

(rejecting similar quantification evidence). 

IV.

Pursuant to the forgoing, we deny Newport News’s petition for

review of the BRB’s decision.

PETITION FOR REVIEW DENIED

WIDENER, Circuit Judge, concurring and dissenting: 

I concur in the result for the sole reason outlined below. 

The Benefits Review Board, on p.4 of its decision (J.A. 32), gave

a reason to support its holding as the medical opinion relied on by

Newport News "is insufficient to establish the claimant’s hearing loss

and prior two back injuries are pre-existing permanent partial disabilities, we affirm the administrative law judge’s finding that employer

did not establish this element of § 8(f) relief." That finding of the

Board is supported by its evidentiary finding that "the [physical]

restrictions expired three years before the 1995 injury and there was

no evidence that these injuries disabled claimant at all once the

restrictions expired." (J.A. 32). Thus, this decision by the Board is

supported by substantial evidence. 

Accordingly, I concur in the result, as stated. 

Especially, however, I do not agree with the insertion of Part III.B

of the opinion of the majority, which is acknowledged as unnecessary,

NEWPORT NEWS SHIPBUILDING v. CHERRY 9
even by the majority, and as to its inclusion in the majority opinion,

I respectfully dissent. The Harcum-Carmines rule is tangled enough,

even without further discussion.

10 NEWPORT NEWS SHIPBUILDING v. CHERRY