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United States Court of Appeals,

Fifth Circuit.

No. 96-60770

Summary Calendar.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR, Petitioner,

v.

INGALLS SHIPBUILDING, INC.,

and

Hollis Ladner, Respondents.

Oct. 21, 1997.

Petition for Review of an Order of the Benefits Review Board.

Before JOLLY, SMITH and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Director of the Office of Workers' Compensation Programs

("OWCP"), United States Department of Labor ("Director"), petitions

for review of an order of the Benefits Review Board ("BRB")

granting Ingalls Shipbuilding, Inc. ("Ingalls"), special fund

contribution for a worker's pre-existing disability. Concluding

that Ingalls failed to meet its evidentiary burden, we grant the

petition for review and reverse and remand.

I.

Hollis Ladner worked for Inga lls in various capacities

starting in 1986. As a sheet metal worker, he was injured in

January 1987 when a jackhammer fell on his toe. William Hopper,1 At the proceedings, Hopper—among others—testified that Ladner

was disabled and that part of his current permanent partial

disability was the result of his prior toe injury. Hopper stated

that the jackhammer injur y had resulted in a 35% permanent

disability to the toe. Hopper also concluded that Ladner would

face a 30% "whole man" disability after his fall from the ladder.

On this evidence, the ALJ found that Ladner was entitled to partial

disability compensation.

2 Lad ner's physician, treated him. After several months of being

unable to work, Ladner returned to the shipyard, only to discover

t hat Ingalls was discharging him because it required fewer sheet

metal workers, and Ladner lacked seniority.

At Ladner's request, Ingalls found him another position as a

joiner. In this position, Ladner injured his left knee in

September 1987 when he fell down a ladder while working on a ship

and injured his left knee. Again, he was treated by Hopper and his

assistant. After the fall from the ladder, Ladner complained to

Hopper about his prior toe injury, and Hopper prescribed therapy.

Thereafter, L adner had to undergo back surgery to repair two

ruptured discs, apparently the result of his fall.

II.

For his inability to work, Ladner claimed workers'

compensation under the Longshore and Harbor Workers' Compensation

Act ("LHWCA"), 33 U.S.C. § 901 et seq. Ingalls unsuccessfully

contested the claim before an administrative law judge ("ALJ"), who

awarded Ingalls contribution from the LHWCA's special fund for part

of its compensation payments. See 33 U.S.C. §§ 908(f), 944. 1

The Director appealed the ALJ's contribution finding to the

BRB, which failed to act within the statutory period. S ee Omnibus2 Ladner has no interest in this case. Whichever party

prevails, he will receive his disability payment.

3 Appropriations Act for Fiscal Year 1996, Pub.L. No. 104-1 34, 110

Stat. 1321. As a result, the ALJ's decision was summarily

affirmed. See id. The Director now petitions for review of that

affirmance pursuant to 33 U.S.C. § 921(c). 2

III.

In petitions for review of a BRB order, we evaluate the ALJ's

factual findings under a substantial evidence standard. S ee, e.g.,

Ceres Marine Terminal v. Director, OWCP, 118 F.3d 387, 389 (5th

Cir.1997). Substantial evidence is that relevant evidence—more

than a scintilla but less than a preponderance—that would cause a

reasonable person to accept the fact finding. See, e.g., Polanco

v. Ci ty of Austin, 78 F.3d 968, 974 (5th Cir.1996). Because the

fac t finder is entitled to deference, a reviewing body cannot

substitute its own view of the facts for that of the ALJ. See

Ceres, 118 F.3d at 389. Thus, our "only function is to correct

errors of law and to determine if the BRB

... deferred to the ALJ's

fact-finding...." A vondale Shipyards, Inc. v. Vinson, 623 F.2d

1117, 1119 n. 1 (5th Cir.1980); a ccord Ceres, 118 F.3d at 389.

Because the BRB failed to act in this case, we look directly to the

ALJ proceedings.

IV.

Generally, the employer is liable under the LHWCA for an

employee's entire disability upon injury, regardless of the effect

that prior injuries have on the level of the resulting disability.3 This worry is exacerbated when the risk of injury is as great

as it is among longshoremen and harbor workers.

4 The special fund is financed by a taxing system on all

employers in the industry. S ee 33 U.S.C. § 944. This device

spreads the loss and internalizes the cost of the prior injury for

the first employer. The first employer would otherwise escape paying for the worker's subsequent disability because the effects

of the first injury re mained latent during the worker's prior

employment.

4 See Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986)

(en banc). Essentially, this "aggravation rule" mimics the common

l aw: A tortfeasor takes his victim as he finds him. S ee, e.g.,

Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403, 404 (1891).

Standing alone, the aggravation rule create s a perverse

incentive: It discourages employers from hiring workers who have

been previously injured. S ee, e.g., Ceres, 118 F.3d at 389. Risk

averse emp loyers rationally fear the expected costs of hiring a

worker with a prior injury. 3 Thus, all things otherwise equal,

employers will prefer an employee without a prior injury.

To overcome this incentive to discriminate, Congress, in the

LHWCA, provided for a special fund. 4 S ee 33 U.S.C. §§ 908(f), 944.

The LHWCA provides that any employer that meets the factors of §

908(f)(1) can obtain contribution from the special fund. To

qualify, the employer must prove that (1) the employee had a

pre-existing permanent partial disability (2) that was "manifest"

to the employer before the occurrence of the injury at issue, and

(3 ) the disability following the subsequent injury was "not due

solely" to the subsequent injury. S ee id. § 908(f)(1); C eres, 118

F.3d at 389-90. Whether the third factor has been met is at issue5 Cf. Ball Mem'l Hosp. v. Mutual Hosp. Ins., Inc., 784 F.2d

1325, 1332 (7th Cir.1986) ("Insurance creates "moral hazard.' Once

a person has insurance, he wants the best care regardless of

cost—for someone else bears the cost.").

5 in this case.

The countervailing worry, as with any insurance system, is

t hat those entitled to benefit from the special fund will face a

mor al hazard problem. Because they pay only a fraction of the

costs, em ployers will rationally "over-demand" benefits from the

special fund. 5

In the LHWCA, C ongress has attempted to control employers'

incentives to use small, insignificant prior injuries to pass off,

to the fund, costs that the employer should bea r. Because this

risk is especially large in permanent, partial disability cases,

the LHWCA adds an additional component to the t hird statutory

factor: The employer also must show that the disability following

the su bsequent injury was "materially and substantially greater

than that which would have resulted from the subsequent injury

alone." 33 U.S.C. § 908(f)(1). The Director claims that the ALJ

applied the two parts of this third statutory factor incorrectly.

A.

The Director contends that the ALJ failed to find that the

permanent partial disability resulting from Ladner's fall from the

ladder was "n ot due solely" to his fall. The ALJ found that

Ladner's permanent partial disability after his fall was increased

because of his prior toe injury. The Director, however, maintains

that in order to meet the "not due solely" requirement, the ALJ had6 Thi s happenstance may explain why Congress added the

"materially and substantially greater" requirement in permanent

partial disability cases. See infra part V.B.

6 to find the converse as well: that without the prior toe injury,

the subsequent permanent partial disability would not have been as

great as it was.

The Director confuses the standards necessary to show "not due

solely" to the subsequent injury in partial and total permanent

disability cases. In a total disability case, the employee could

be "more injured" as a result of the subsequent injury without

necessarily entitling his employer to relief from the special fund.

For example, the worker c ould be thirty-five percent permanently

disabled from his prior injury bu t still one hundred percent

permanently disabled from his subsequent injury. Thus, in order to

meet the "not due solely" requirement, the employer would have to

prove that without the prior injury, the worker would not now be

totally permanently disabled. S ee Two "R" Drilling Co. v.

Director, OWCP, 894 F.2d 748, 750 (5th Cir.1990) (per curiam).

In the case of permanent partial disability, however, all the

employer must show to meet the "not due solely" requirement is that

an increased permanent partial disability results when the injuries

from the prior and subsequent injuries are combined. Whenever the

disability is increased from the combination of the two injuries,

the resulting permanent partial disability is necessarily "not due

solely" to the subsequent injury. 6

The ALJ found that the permanent partial disability resulting

from Ladner's fall was increased because of his previously-injured7 We address the Director's sufficiency of the evidence claims

in part V, infra.

7 toe. Therefore, assuming for the moment the sufficiency of that

finding, 7 the ALJ correctly determined that this part of the third

statutory factor was met.

B.

The Director claims that the ALJ was required to state

explicitly that Ladner's permanent partial disability was

"materially and substantially greater" than it would have been had

the toe in jury never occurred. Both sides concede that the ALJ

never made an explicit "materi a lly and substantially greater"

finding. Recently, however, we noted that "[a]lthough it would be

helpful if attorneys asked questions designed to elicit the "magic

words' that authorize special fund relief, we decline to adopt a

rule that would require a rote recitation of the applicable legal

standard." Ceres, 118 F.3d at 391.

Instead, when the "magic words" are absent from the record,

"the fact finder's inquiry must of necessity be resolved by

inferences based on such factors as the perceived severity of the

pr e-existing disabilities and the current employment injury, as

well as the strength of the relationship between them." I d. Thus,

assuming for the moment the sufficiency of the evidence, it was not

error, in and of itself, that the ALJ failed to state explicitly

that the permanent partial disability was "materially and

substantially greater" as a result of the prior toe injury.

V.8

The Director maintains that even if the ALJ applied the

correct legal standards in determining the two parts of the third

statutory factor, the evidence cannot support a finding in favor of

the employer on either part. We agree with regard to the second

part. First, we address the sufficiency of the "not due solely"

finding. Then, we discuss the "materially and substantially

greater" determination.

A.

The evidence is sufficient to find that Ladner's current

permanent partial disability is "not due solely" to the fall from

the ladder. At the proceedings, Hopper testified to this

conclusion. Although there was conflicting evidence, the ALJ was

entitled to weight Hopper's testimony more and others' less. The

record indicates that the ALJ accepted Hopp er's conclusion that

Ladner's permanent partial disability was increased because of the

prior toe injury. This finding was a reasonable inference.

B.

The same cannot be said about the second part. Any ALJ

finding that Ladner's permanent partial disability was "materially

and substantially greater than that which would have resulted from

the subsequent injury alone," 33 U.S.C. § 908(f)(1), is not

support ed by the evidence. Satisfying the "materially and

substantially greater" prong of the statutory test requires "an

employer [to] present evidence of the type and extent of the

disability that the clai mant would suffer if not previously

disabled when injured" subsequently. D irector , OWCP v. Newport8 In Newpor t News, the evidence the employer presented was

similar to that in the present case. Concluding that the employer

had not met the statutory burden, the court noted: "Newport News

showed that the Claimant suffered from a pre-existing permanent

partial disability in the cervical spine area that created a five

percent whole body impairment. After the work-related injury at

issue, the Claimant suffered an ultimate permanent partial

disability that produce d a whole body impairment of eighteen

percent.... This conclusion stops short of identifying whether the

ultimate permanent partial disability is materially and

substantially greater than a disability cause by the work-related

injury only." Newport News, 8 F.3d at 186 n. 9.

9 Because we find the standard has not been met in this case, we need not express any view about what evidence would support a

"materially and substantially greater" inference.

9 News Shipbuilding & Dry Dock Co., 8 F.3d 175, 185 (4th Cir.1993),

aff'd, 514 U.S. 122, 115 S.Ct. 1278, 131 L.Ed.2d 160 (1995).

Thus, the employer must offer some proof of the extent of the

per manent partial disability had the pre-existing injury never

existed. 8 S ee Newport News, 8 F.3d at 185-86 & n. 9. Ingalls can

offer only testim ony that the permanent partial disability was

increased because of the prior toe injury.

There is no evidence suggesting that the resulting permanent

partial disability was "materially and substantially greater," nor

is there any quantification of the resulting permanent partial

disability in the absence of the prior injury. 9 Although Hopper's

testimony is enough for a rational person to infer that the

resulting permanent partial disability was increased because of the

prior toe injury, no reasonable fact finder could infer that the

permanent partial disability was "materially and substantially

greater than that which would have resulted from the s ubsequent

injury alone." 33 U.S.C. § 908(f)(1).10

Theref ore, because Ingalls has failed to offer sufficient

evidence needed to obtain special fund relief under § 908(f)(1), we

GRANT the petition for review and REVERSE and REMAND to the BRB for

proceedings consistent with this opinion.