Newport News Shipbld v. DOWCP

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND 
DRY DOCK COMPANY,
Petitioner,
v.
LARRY D. WARD; DIRECTOR,  No. 00-1978
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(99-1054)
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 dissenting opinion.
COUNSEL
ARGUED: Lawrence Philip Postol, SEYFARTH SHAW, Washing-
ton, D.C., for Petitioner. Andrew David Auerbach, UNITED STATES
2 NEWPORT NEWS SHIPBUILDING v. WARD
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON BRIEF: Henry L. Solano, Solicitor of Labor, Carol A. De Deo,
Associate Solicitor, Mark Reinhalter, Senior Attorney, Miriam D.
Ozur, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Director.
OPINION
KING, Circuit Judge:
Larry Ward twice injured his back while at work, once in 1987 and
again in 1989. He receives "permanent partial disability" benefits
from his employer, Newport News Shipbuilding & Dry Dock Com-
pany ("Newport News"), pursuant to §§ 4 and 8(c)(21) of the Long-
shore and Harbor Workers’ Compensation Act (the "Act" or
"LHWCA").1 In 1997, Newport News filed a claim for relief under
§ 8(f) of the Act with the Director of the Office of Workers’ Compen-
sation Programs (the "Director"). Pursuant to § 8(f), an employer’s
duty to pay benefits is limited to a two-year period, if the employer
can establish that an employee’s work-related injury was made "mate-
rially and substantially greater" by a pre-existing disability. 33 U.S.C.
§ 908(f).
On July 1, 1999, an Administrative Law Judge of the Department
of Labor (the "ALJ") denied Newport News’s request for § 8(f) relief.
Ward v. Newport News Shipbldg. & Dry Dock Co., 97-LHC-2140,
Decision and Order Awarding Benefits and Denying 8(f) Relief (July
1, 1999) (the "ALJ Decision"). On July 11, 2000, the Department of
Labor’s Benefits Review Board (the "BRB") affirmed the ALJ Deci-
sion. Ward v. Newport News Shipbldg. & Dry Dock Co., 99-1054,
Decision and Order (July 11, 2000) (the "BRB Decision"). Newport
News has now petitioned for our review, pursuant to § 21(c) of the
Act, asserting that the BRB Decision is in error. As explained below,
we deny the petition for review.
1
The Act is codified at 33 U.S.C. §§ 901-950.
NEWPORT NEWS SHIPBUILDING v. WARD 3
I.
A.
On December 11, 1987, Ward, a welder employed by Newport
News in the shipyards of eastern Virginia, herniated the L4-L5 disc
in his back (the "1987 Injury"). On March 31, 1988, Ward underwent
back surgery to repair the 1987 Injury. In September of that year,
Ward returned to work at Newport News with work restrictions, and
he performed light duty work for approximately two months. Ward
was again unable to work from November 23, 1988, until May 15,
1989, at which point he again returned to light duty work at the ship-
yards.
While at work a month later, however, on June 16, 1989, Ward
again injured his back while pulling on heavy welding lines (the
"1989 Injury"). On this occasion, Ward herniated an entirely different
disc in his back, the L5-S1 disc. The 1989 Injury required Ward to
undergo, on August 8, 1989, another surgical procedure. Although
Ward was only partially disabled after his second back surgery, he
was unable to find work with Newport News that he could adequately
perform. Consequently, he sought disability benefits under the Act.
Newport News initially agreed to pay benefits to Ward, but it later
sought § 8(f) relief from its obligation to compensate Ward for his dis-
ability.2
After Newport News filed its claim for § 8(f) relief on May 1,
2
Newport News challenged its obligation to pay continuing disability
benefits to Ward by filing a claim for § 8(f) relief with the Director. Sec-
tion 8(f) provides that:
[in] cases in which the employee has a . . . 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). Once 104 weeks have elapsed, benefits are paid
from a special fund established by Congress and administered by the
Secretary of Labor. See id. §§ 908(f)(2)(A), 944.
4 NEWPORT NEWS SHIPBUILDING v. WARD
1997, the claim was referred to the ALJ for disposition. During pro-
ceedings before the ALJ, the parties agreed to stipulate certain rele-
vant facts, and neither Ward nor the Director presented any evidence.
As explained below, Newport News presented evidence to the ALJ
from two physicians, Dr. Reid and Dr. Garner, both of whom had
treated Ward’s back injuries.
B.
Before seeking § 8(f) relief, Newport News requested a report from
Dr. Reid, the Newport News company physician who had treated both
of Ward’s back injuries. On May 1, 1997, the day Newport News
filed for § 8(f) relief, Dr. Reid detailed his views regarding Ward’s
disability in a two-page letter to Newport News, to which he attached
six supporting exhibits (collectively, the "1997 Reid Report"). New-
port News then submitted the 1997 Reid Report to the ALJ in support
of its claim for § 8(f) relief.
In the 1997 Reid Report, Dr. Reid asserted, inter alia, that:
• "Mr. Ward’s disability is not caused by his December 11,
1987 back injury alone, but rather his disability is materi-
ally contributed to, and made materially and substantially
worse by his aggravation injury on June 16, 1989";
• "Neither the 1987 injury, nor the 1989 injury, alone
would have disabled Mr. Ward from performing light
duty Shipyard work";
• "[If Ward had] a normal back when he suffered the 1989
injury, he . . . would have been able to return to light
duty Shipyard work"; and
• "[T]he combination of the two injuries and two surgeries,
and their cumulative effect, have disabled Mr. Ward
from even light duty Shipyard work."
Within the exhibits in the 1997 Reid Report were three work restric-
tion reports of Dr. Reid, plus a letter and two office memoranda of
NEWPORT NEWS SHIPBUILDING v. WARD 5
Dr. Garner. These materials had been prepared during the course of
Ward’s treatment and surgeries.
Newport News thereafter submitted additional evidence to the ALJ
from Dr. Garner, who had performed the 1988 and 1989 back sur-
geries. On January 7, 1999, Newport News forwarded the 1997 Reid
Report to Dr. Garner, accompanied by a transmittal letter (the "Trans-
mittal Letter"). The Transmittal Letter provided Dr. Garner the option
of indicating whether he "agree[d] with Dr. Reid’s opinion as
expressed in his May 1, 1997 Report concerning Mr. Ward." Dr. Gar-
ner indicated his agreement with the 1997 Reid Report by signing and
dating the Transmittal Letter on March 22, 1999, without further
explanation, and then returning it to Newport News. In further support
of its § 8(f) claim, Newport News submitted to the ALJ a November
7, 1990, memorandum of Dr. Garner, relating to Ward’s 1989 Injury.
C.
After analyzing the available evidence, particularly the 1997 Reid
Report and the Transmittal Letter, the ALJ determined that Newport
News was not entitled to § 8(f) relief. Specifically, the ALJ concluded
that Newport News had failed to quantify the portion of Ward’s dis-
ability that was due to his 1989 Injury alone. In reaching this conclu-
sion, the ALJ decided that the opinions of Drs. Reid and Garner failed
to justify an award of § 8(f) relief to Newport News because they
lacked sufficient credibility and failed to provide the ALJ with an
opportunity to "examine the logic" and "evaluate the evidence" upon
which the opinions were based. ALJ Decision at 6. In fact, the ALJ
found that "with the limited evidence provided by the Employer," it
was "impossible" to make an appropriate determination under the
controlling standard enunciated in Director, OWCP v. Newport News
Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140 (4th
Cir. 1998). ALJ Decision at 7. Consequently, the ALJ denied § 8(f)
relief.
Newport News appealed the ALJ Decision to the BRB. On July 11,
2000, the BRB ruled that substantial evidence supported the ALJ’s
conclusion that Newport News had failed to prove its entitlement to
§ 8(f) relief. The BRB agreed that Newport News "did not quantify
[the] disability due to the June 1989 injury alone." BRB Decision at
6 NEWPORT NEWS SHIPBUILDING v. WARD
4. In so ruling, the BRB concluded, as had the ALJ, that the evidence
offered by Newport News failed to enable the ALJ to "examine the
logic" and "evaluate the evidence" of the 1997 Reid Report. Accord-
ingly, it affirmed the ALJ. On August 21, 2000, Newport News peti-
tioned this Court for review of the BRB Decision. We possess
jurisdiction pursuant to 33 U.S.C. § 921(c).
II.
In evaluating a decision of the BRB, 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 § 21(b)(3) of the Act, the BRB must
assess an ALJ’s factual findings to determine whether they are "sup-
ported by substantial evidence in the record considered as a whole."
33 U.S.C. § 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) (cit-
ing Elliott v. Adm’r, Animal & Plant Health Inspection Serv., 990
F.2d 140, 144 (4th Cir. 1993)). Furthermore, the findings of an ALJ
"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.
A.
Our precedent with respect to § 8(f) claims is pertinent here, and
it governs our disposition of this proceeding. In the early 1990s, in
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
(Harcum I), 8 F.3d 175, 182 (4th Cir. 1993), we articulated the test
for whether and when § 8(f) relief is appropriate in a permanent par-
tial disability situation. The Harcum I rule was then restated in Car-
NEWPORT NEWS SHIPBUILDING v. WARD 7
mines, when Judge Murnaghan explained that § 8(f) limits an
employer’s liability for an employee’s permanent partial disability
benefits to two years, if the employer can affirmatively establish three
elements. He defined those elements as follows:
First, "that the ultimate disability [was] not caused solely
by the work-related injury, but [was] also caused in part by
a pre-existing partial disability";
Second, "that the pre-existing disability was manifest to
the employer prior to the work-related injury"; and
Third, and of importance here, "that the ultimate perma-
nent 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"
(the "Contribution Element").
Carmines, 138 F.3d at 138-39 (citing Harcum I, 8 F.3d at 182-83).
An employer can satisfy this third element, the Contribution Ele-
ment, only if it can quantify the type and extent of disability the
employee would have suffered absent the pre-existing disability. Car-
mines, 138 F.3d at 139 ("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."). As Chief Judge Ervin observed in Harcum I, the
quantification aspect of the Contribution Element provides an ALJ
with "a basis on which to determine whether the ultimate permanent
partial disability is materially and substantially greater" than the dis-
ability the employee would have suffered from the second injury
alone. Harcum I, 8 F.3d at 185-86, cited in Carmines, 138 F.3d at
139. Importantly, in assessing whether the Contribution Element has
been met, an ALJ may not "merely credulously accept the assertions
of the parties or their representatives, but must examine the logic of
their conclusions and evaluate the evidence upon which their conclu-
sions are based." Carmines, 138 F.3d at 140.
In Harcum I, the BRB had determined that § 8(f) relief was avail-
able to an employer when an employee’s pre-existing disability and
8 NEWPORT NEWS SHIPBUILDING v. WARD
his subsequent injury combine "to cause a greater degree of impair-
ment than that caused by the second injury alone." Harcum I, 8 F.3d
at 183. We held that the ALJ and the BRB had applied an incorrect
standard for § 8(f) relief because they had failed to consider whether
Harcum’s ultimate disability was "substantially and materially
greater" than the disability he would have suffered from the second
injury alone. Therefore, in Harcum I, we remanded the § 8(f) claim
to the ALJ for further consideration regarding the Contribution Ele-
ment. Id. at 184-86.
On remand, Newport News presented evidence to the ALJ through
a vocational rehabilitation specialist. This evidence demonstrated that,
if Harcum had suffered his second injury absent his pre-existing dis-
ability, he would have been capable of earning $6.00 per hour. How-
ever, with both injuries, he was only capable of earning $3.80 per
hour, and he was not capable of performing several jobs for which he
would have been otherwise qualified. Thus, Newport News contended
that Harcum’s pre-existing disability caused his ultimate disability to
reduce Harcum’s wage earning capacity by $2.20 per hour, a thirty-
six percent decrease, and that it was thus entitled to § 8(f) relief. The
ALJ denied § 8(f) relief, primarily because Newport News did not
present any medical evidence. The BRB then affirmed the ALJ’s
decision.
In our review of the BRB’s decision after Harcum I’s remand, we
determined that Newport News was entitled to § 8(f) relief. Newport
News Shipbuilding & Dry Dock Co. v. Director, OWCP (Harcum II)
131 F.3d 1079, 1081 (4th Cir. 1997). In reaching this conclusion and
in reversing the BRB, we observed that medical evidence, although
often utilized, is not essential for an employer’s satisfaction of the
Contribution Element. We then decided that the vocational evidence
sufficiently quantified what Harcum’s injury would have been absent
the pre-existing injury. Id. In fact, in Harcum II, we observed that the
evidence presented by Newport News was of the type contemplated
by Harcum I in its discussion of the Contribution Element. Id. at
1083.
Then, in 1998, in Carmines, we again considered an employer’s
claim for § 8(f) relief. As in Harcum II, the issue in Carmines was
whether the evidence presented by Newport News had satisfied the
NEWPORT NEWS SHIPBUILDING v. WARD 9
quantification aspect of the Contribution Element. Carmines, 138
F.3d at 138. In Carmines, Callis Carmines had been diagnosed with
pulmonary asbestosis and was receiving disability benefits from New-
port News. Newport News sought § 8(f) relief, asserting that the
asbestosis was made substantially and materially greater by his pre-
existing condition. Newport News had presented evidence from Dr.
Hall, a Newport News physician, who determined that Carmines’s
ultimate disability was twenty-eight percent. He also opined that Car-
mines’s pre-existing condition resulted in a partial disability of eigh-
teen percent. Thus, by subtracting eighteen from twenty-eight, Dr.
Hall concluded that Carmines’s disability would have been only ten
percent in the absence of his pre-existing condition. Newport News
thus asserted that, because Carmines’s ultimate disability was eigh-
teen percent higher than it would have been from his second injury
alone, it was entitled to § 8(f) relief. Id. at 143. The ALJ agreed that
Newport News was entitled to § 8(f) relief, and the BRB affirmed.
In our Carmines decision, however, we rejected this approach.
Instead, we ruled that it was not appropriate to simply subtract Car-
mines’s pre-existing disability from his ultimate disability to deter-
mine whether the ultimate disability was "materially and substantially
greater" than that caused by the second injury alone. Judge Murnag-
han reasoned that, even though Carmines’s pre-existing condition led
to an eighteen percent disability, Newport News had failed to estab-
lish that his second injury would have resulted in less than a twenty-
eight percent disability had it occurred alone. Id. at 142-43. As Judge
Murnaghan observed, Newport News was obliged, in order to satisfy
§ 8(f), to present evidence regarding the degree of disability that
would have resulted from the second injury alone. "Without such evi-
dence, the mere assertion by the employer’s in-house physician that
the . . . ultimate disability was made materially and substantially
worse by the pre-existing conditions is not sufficient to warrant"
§ 8(f) relief. Id. at 144. Thus, we reversed the BRB’s determination
that Newport News was entitled to § 8(f) relief. Id.
With these controlling principles in mind, we now turn to Ward’s
injuries and to whether the ALJ’s denial of the Newport News claim
for § 8(f) relief is supported by substantial evidence.
10 NEWPORT NEWS SHIPBUILDING v. WARD
B.
We begin our assessment of Newport News’s petition for review
by acknowledging that Newport News has satisfied the first two ele-
ments of the test for § 8(f) relief. The only remaining issue is whether
substantial evidence supports the ALJ’s decision that Newport News
failed to satisfy the Contribution Element of its § 8(f) claim.3
1.
In assessing whether the ALJ Decision is supported by substantial
evidence, we first look to the 1997 Reid Report. The ALJ concluded
that this Report failed to satisfy the Contribution Element of the § 8(f)
test because it did not sufficiently quantify the portion of Ward’s
1989 Injury that would have resulted in the absence of the 1987
Injury. ALJ Decision at 6. To the extent that the 1997 Reid Report
compared Ward’s 1989 Injury to the injury he would have suffered
had the 1987 Injury not occurred, the ALJ found that he was unable
to "examine the logic" and "evaluate the evidence" underlying those
comparisons. Id. Hence, the ALJ was unable to determine whether
Ward’s 1989 Injury was "materially and substantially greater" than
3
Newport News claims that the ALJ was obliged to accept its evi-
dence because neither the Director nor Ward offered any contradictory
evidence. However, as the ALJ and the BRB correctly noted, we held in
Carmines that it is "irrelevant" that evidence may be uncontradicted.
Carmines, 138 F.3d at 142. First, the burden of proof is on the employer
to establish by credible, sufficient, and reliable evidence that it is entitled
to § 8(f) relief. Second, in § 8(f) cases, the evidence supporting such
relief is frequently provided by company doctors, such as Dr. Reid.
"Human nature as it is, company doctors, however honest, are likely to
give close calls to those who pay their salaries." Newport News Shipbldg.
& Dry Dock Co. v. Pounders, No. 00-1321 (4th Cir. Apr. 14, 2003); see
also Newport News Shipbldg. & Dry Dock Co. v. Winn, No. 00-1815 (4th
Cir. Apr. 14, 2003) ("Additional difficulties result from the frequent
appearances of company doctors providing opinions for an employer
who has an incentive to try to get as many cases as possible dumped into
the special fund."). Finally, we have consistently recognized that "[a]
physician’s statement . . . is not conclusive of the ultimate fact in issue."
Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974).
NEWPORT NEWS SHIPBUILDING v. WARD 11
the disability Ward would have suffered in the absence of his 1987
Injury.
Newport News contends that the ALJ could have examined the
logic and evaluated the evidence underlying the 1997 Reid Report
such that its evidence satisfied the standards for § 8(f) relief, articu-
lated by Harcum I and Carmines. Thus, Newport News maintains that
had the ALJ performed a thorough examination of that Report and the
other available evidence, he would have found it sufficient to warrant
§ 8(f) relief.4 Having considered the record as a whole, we disagree
with Newport News: the ALJ Decision is supported by substantial
evidence.
In the 1997 Reid Report, Dr. Reid asserted that "[n]either the 1987
injury, nor the 1989 injury, alone would have disabled Mr. Ward from
performing light duty Shipyard work." Dr. Reid also maintained that
"[i]f he [had] a normal back when he suffered the 1989 injury, he . . .
would have been able to return to light duty Shipyard work. However,
the . . . cumulative effect [of the injuries] have disabled Mr. Ward
from even light duty Shipyard work." Like Dr. Reid’s opinions in
Newport News Shipbuilding & Dry Dock Co. v. Cherry, No. 00-1279
(4th Cir. Apr. 14, 2003), his assessments of Ward’s injuries constitute
the type of evidence that Harcum I and Carmines deemed relevant to
the quantification aspect of the Contribution Element. See Cherry,
No. 00-1279 (concluding that similar statement by Dr. Reid was cor-
rect type of evidence for satisfying quantification aspect).5
4
Newport News maintains that the ALJ misapplied Carmines. Specifi-
cally, Newport News contends that the ALJ cannot, consistent with Car-
mines, reject a "straightforward logical opinion" of a treating physician.
As we have made clear, however, an ALJ is not to blindly accept the
mere assertions of the parties, but must "examine the logic" and "evalu-
ate the evidence" underlying those assertions.
5
In addition to this decision in Ward, today we also decide three other
LHWCA cases regarding the limitation on employer liability contained
in § 8(f). Newport News Shipbldg. & Dry Dock Co. v. Cherry, No. 00-
1279 (4th Cir. Apr. 14, 2003); Newport News Shipbldg. & Dry Dock Co.
v. Pounders, No. 00-1321 (4th Cir. Apr. 14, 2003); Newport News Ship-
bldg. & Dry Dock Co. v. Winn, No. 00-1815 (4th Cir. Apr. 14, 2003).
12 NEWPORT NEWS SHIPBUILDING v. WARD
Unfortunately for Newport News, however, Dr. Reid’s assertions
are generalized and his overall conclusion lacks any supporting expla-
nation. In particular, his statement that Ward would have been able
to "return to light duty Shipyard work" if he had suffered only one of
his back injuries, is conclusory and lacks evidentiary support. Indeed,
Dr. Reid’s statements are far different from the "objective quantifica-
tion" and clear descriptions that were present in Harcum II. 131 F.3d
at 1082. As the ALJ found, Dr. Reid "does not refer to any evidence
justifying [his] conclusion, nor does he explain how he arrived at it."
ALJ Decision at 7.6
In attempting to explain Dr. Reid’s assertions, Newport News
points to Dr. Reid’s conclusion in the 1997 Reid Report that Ward’s
1987 Injury and surgery "rates a minimum 5% permanent disability
rating" under the "AMA Guides."7 However, both the BRB and the
ALJ concluded that, although Dr. Reid believed that Ward suffered
a five percent disability following his 1987 Injury, Dr. Reid failed to
assess the level of Ward’s disability that would have resulted from the
1989 Injury alone. We agree that Dr. Reid’s assessment of Ward’s
disability rating does not properly quantify the type and extent of dis-
ability Ward would have suffered absent the pre-existing disability,
and that Dr. Reid’s assessment thus does not support the conclusions
made in the 1997 Reid Report.8 Under these circumstances, the ALJ
6
The exhibits in the 1997 Reid Report also fail to support Dr. Reid’s
assertion on this point. Specifically, Dr. Reid’s three work restriction
records do not describe or compare the two injuries. Likewise, the three
records of Dr. Garner contained in the 1997 Reid Report fail to make the
appropriate quantification. The first, dated April 7, 1988, is a letter from
Dr. Garner to Dr. Reid, and relates to Ward’s initial back injury in 1987.
The second, an office memorandum dated June 23, 1989, concerns
Ward’s 1989 Injury and summarizes the symptoms that Ward initially
presented. The third, dated August 17, 1989, is also an office memoran-
dum and documents Ward’s post-operative recovery after his 1989
Injury. Although each of these records discusses either the 1987 Injury
or the 1989 Injury, they do not attempt to assess the disability Ward
would have suffered from the 1989 Injury if the 1987 Injury had not
occurred.
7
The AMA Guides referred to by Dr. Reid are the American Medical
Association’s Guides for the Evaluation of Permanent Impairment.
8
In addition to the finding that Dr. Reid’s rating of Ward’s disability
was not the proper quantification, the ALJ also found that the rating was
NEWPORT NEWS SHIPBUILDING v. WARD 13
was entitled to conclude, as he did, that Dr. Reid’s assertions in the
1997 Reid Report fell short of satisfying the quantification aspect of
the Contribution Element.
2.
Newport News, in its effort to justify its claim for § 8(f) relief, also
presented the ALJ with evidence from Dr. Garner, Ward’s treating
neurosurgeon. First, it relied on Dr. Garner’s agreement with the 1997
Reid Report, as reflected in the Transmittal Letter of January 7, 1999.
The Transmittal Letter was authored and sent to Dr. Garner by a
Newport News lawyer, who urged Dr. Garner to sign and return the
statement: "I agree with Dr. Reid’s opinion as expressed in his May
1, 1997 Report concerning Mr. Ward." The ALJ gave "no probative
weight" to Dr. Garner’s adoption of this statement, however, because
"[t]here is no explanation whatsoever from Dr. Garner why he agrees
with Dr. Reid." ALJ Decision at 6. The ALJ noted that "[a] statement
that a doctor agrees with another doctor, if it includes no supporting
evidence and no explanation of why and how the doctor arrived at his
conclusion, is legally insufficient under Carmines." Id. at 6 n.3.
Because Dr. Garner neither authored nor explained the basis for his
adoption of the Transmittal Letter, the ALJ was entitled to discount
its evidentiary value. See Cherry, No. 00-1279 (approving ALJ’s
skepticism regarding treating physician’s adoption of similar state-
ment in transmittal letter).
Second, Newport News sought support for its § 8(f) claim from the
November 7, 1990 memorandum prepared by Dr. Garner on Ward’s
1989 Injury. The ALJ, however, was well within his discretion in
deciding that this document did not explain Dr. Reid’s assessments in
the 1997 Reid Report or Dr. Garner’s agreement to the Report. ALJ
Decision at 6. In his memorandum of November 7, 1990, Dr. Garner
concluded that Ward had reached maximum medical improvement
not credible because, at the time of the 1997 Reid Report, when Dr. Reid
asserted that Ward had a five percent permanent partial disability,
Ward’s medical records indicated that Dr. Reid had not placed Ward
under any permanent work restrictions. ALJ Decision at 7. This finding
further bolsters the ALJ Decision.
14 NEWPORT NEWS SHIPBUILDING v. WARD
and that he was entitled to a seventeen percent permanent partial dis-
ability ratio following his 1989 Injury. However, that memorandum
merely discussed the degree of permanent partial disability resulting
from Ward’s second injury in 1989, and it failed to provide an assess-
ment of the degree of disability which would have resulted from the
1989 Injury alone, i.e., absent Ward’s 1987 Injury. As we have
pointed out, an employer seeking § 8(f) relief must provide a credible
quantification of the type and extent of disability that would have
ensued from the second injury alone. Carmines, 138 F.3d at 144("Such evidence is necessary before the ALJ can compare that degree
of disability that would have resulted solely from the [second injury]
to the degree of disability ultimately produced by the combination of
the [second injury] and the supposed pre-existing condition[ ].").
3.
Finally, we observe that there is nothing before us to indicate that
Drs. Garner and Reid are other than qualified physicians. And it is
likewise true that, taken together, their opinions could have entitled
Newport News to § 8(f) relief, if those opinions had been credited by
the ALJ. The simple fact, however, is that the ALJ found the evidence
insufficient to warrant § 8(f) relief. Although other inferences could
have been drawn from the evidence, it is not for a reviewing court to
draw such other inferences if the record contains substantial evidence
supporting the ALJ Decision. See Tann, 841 F.2d at 543. Therefore,
because substantial evidence supports the ALJ Decision denying the
claim of Newport News for § 8(f) relief, we must deny the petition
for review.
IV.
Pursuant to the foregoing, Newport News’s petition for review of
the BRB Decision is denied.
PETITION FOR REVIEW DENIED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
NEWPORT NEWS SHIPBUILDING v. WARD 15
I.
I disassociate myself from the remarks made in the majority deci-
sion concerning the weight of the evidence from two physicians
involved in this case, Drs. Reid and Garner. The attempt by the
majority at the conclusion of its opinion, to resurrect those physicians,
indeed emphasizes the correctness of their opinions. Dr. Garner, a
neurosurgeon who had twice operated on Ward, for example, obvi-
ously knew as much or more than anyone in the world about Ward’s
back. The failure to credit his report, and that of Dr. Reid, a treating
physician, is simply not realistic. Neither, in my opinion, is it good
law.
II.
In the most general terms, I think our court is making a huge mis-
take in not recognizing that the Longshore and Harbor Workers Com-
pensation Act is simply a federal substitute for ordinary Workers
Compensation laws which are very nearly universal in this country
except under the federal or similar statutes I have just mentioned.
Those cases, as every practicing lawyer knows, are decided almost
wholly upon forms and written reports completed by physicians and
like experts, affidavits from those engaged in the occupation of the
injured employee, and such evidence. Little oral testimony is taken,
either before administrative law judges or the courts. Deciding these
cases on the hyper-technical rules set out in Carmines and Harcum I
and II, which I suggest are not fully understood by anyone, would do
credit to a full-fledged case complete with judge, jury, discovery, and
pre-trial, the entire legal process, instead of the administrative process
which initially, I am sure, was calculated to see that injured employ-
ees receive prompt compensation and that employers remain able to
assert their statutory rights without the requirement of extended litiga-
tion. If we want to impose some kind of a rule that each or all of these
successive injuries, which always must be present for 8(f) relief, must
be quantified under the AMA Guidelines to the Evaluation of Perma-
nent Impairment, we should just say so, rely on addition and subtrac-
tion, and be done with it, instead of relying on the highly technical
and little understood Carmines and Harcum rules which have used as
their shelters here a failure to credit two perfectly reliable physicians
who were the source of all the medical and related evidence which the
16 NEWPORT NEWS SHIPBUILDING v. WARD
record shows could have been gathered about these injuries. With
respect to the downgrading of a physician’s written report because it
comes from a "company doctor," no more reason exists to downgrade
that report than was our "close scrutiny of the record" justified by
findings of fact prepared by an attorney for one of the parties, which
the Court forbade in Anderson v. City of Bessemer City, 470 U.S. 564,
571-73 (1985).
III.
To get to the case at hand. That Newport News met the first two
elements required for § 8(f) relief is undisputed in this court.
At issue here is whether Newport News met the third, or contribu-
tion, element.1 In its petition for § 8(f) relief, Newport News submit-
ted the opinions of two physicians as evidence that Ward’s 1987
injury and surgery made his ultimate disability materially and sub-
stantially greater than it otherwise would have been. First, the
employer submitted the May 1, 1997 letter report of Dr. Reid, a New-
port News staff physician who was an examining and treating physi-
cian with respect to each of the injuries involved here. Dr. Reid’s
report speaks to the contribution element of Newport News’ claim for
8(f) relief as follows:
May 1, 1997
Re: Larry D. Ward; [SSN omitted on the account of
privacy concerns]
1
The ALJ also found Newport News ineligible for relief on alternate
grounds, rejecting as not supported by substantial evidence the stipula-
tion that Ward had reached maximum medical improvement on or before
November 13, 1995. Because the ALJ rejected this stipulation, the ALJ
found that Ward’s condition was not permanent, a finding that made
Newport News ineligible for § 8(f) relief. The Board reversed the ALJ’s
finding that the permanency of Ward’s disability had not been estab-
lished as of November 13, 1995, and concluded that the employer there-
fore would have been eligible for relief had it proved the contribution
element. The Director accepts the Board’s conclusion that Newport
News had established the permanency of Ward’s disability.
NEWPORT NEWS SHIPBUILDING v. WARD 17
Dear Ms. Massenberg:
At your request, I have reviewed Mr. Ward’s clinic
records, as well as his outside medical records which are
contained in his clinic chart. In addition, I have treated Mr.
Ward for his injury. I can provide the following medical his-
tory and opinions, stated with a reasonable degree of medi-
cal certainty.
1. Mr. Ward had injured his back on December 11,
1987 and he had an aggravation injury on June 16, 1989.
2. Mr. Ward first injured his back on December ll,
1987. Mr. Ward missed three weeks of work and then
required work restrictions (Exhibit 1). Mr. Ward ultimately
in March, 1988 required a laminectomy for a herniated disc
(Exhibit 2). Such an injury and surgery leaves the back per-
manently weakened and thus significantly more susceptible
to further injury, and with the resultant disability being sub-
stantially greater. For this reason, such an injury and surgery
under the AMA Guides rates a minimum 5% permanent dis-
ability rating. Indeed, Mr. Ward missed six more months of
work, and required work restrictions (Exhibit 3). Mr. Ward
in late 1988 and 1989 missed 6 more months of work, and
returned to work on work restrictions (Exhibit 4). Mr. Ward
reinjured his back no approximately June 16, 1989 while
pulling on heavy welding lines (Exhibit 5). Mr. Ward had
a second herniated disc injury and required a second surgery
(Exhibit 6).
3. Mr. Ward reached maximum medical improvement
from his back injury on or before November 20, 1992 when
he was permanently passed out of the Shipyard due to his
back disability.
4. Mr. Ward’s pre-existing condition of chronic back
disability was permanent and serious. A cautions employer
would not hire a worker for heavy manual labor, such as at
the Shipyard, if he had the back injury and surgery he had
in 1987-1988.
18 NEWPORT NEWS SHIPBUILDING v. WARD
5. Mr. Ward’s pre-existing condition of chronic back
disability was manifest to the Shipyard based on its own
records.
6. Mr. Ward’s disability is not caused by his December
11, 1987 back injury alone, but rather his disability is mate-
rially contributed to, and made materially and substantially
worse by his aggravation injury, on June 16, 1989. Mr.
Ward originally injured his back on December 11, 1987. Mr.
Ward required disc surgery and his back was left in a per-
manently weakened condition. Nevertheless, he was able to
perform light duty Shipyard work. The June 16, 1989 injury
permanently and substantially aggravated and worsened his
weakened defective back structure, been able to return to
light duty Shipyard work. However, the combination of the
two injuries and two surgeries, and their cumulative effect,
have disabled Mr. Ward from even light duty Shipyard
work.
If I may provide you any further information, please do
not hesitate to call me.
Sincerely,
/s/ James W. Reid, M.D.
James Reid, M.D.
Enclosures
(Exhibits 1-6)
Thus, Dr. Reid states that Ward’s 1987 injury helped cause his 1989
injury and that, without Ward’s 1987 injury, his 1989 injury and sur-
gery would have left Ward able to perform light duty at the shipyard,
just as Ward had returned to light duty after the 1987 injury.
The employer also submitted reports from Dr. Garner, Ward’s
treating neurosurgeon, who signed, in addition, a one-line statement,
without explanation, stating, "I agree with Dr. Reid’s opinion as
NEWPORT NEWS SHIPBUILDING v. WARD 19
expressed in his May 1, 1997 report concerning Mr. Ward." More
importantly, Dr. Reid’s report includes, in addition, a letter and three
office memos from Dr. Garner which were never mentioned by the
Board and the substance of which was not considered by the ALJ.
The Director did not present to the ALJ any evidence relating to
the contribution element of Newport News’ § 8(f) claim.
The Board, following the ALJ, found that Newport News failed to
prove the contribution element of the claim "because it did not quan-
tify disability due to the June 1989 injury alone." In reaching its con-
clusion, the Board found the ALJ could not "examine the logic" and
"evaluate the evidence" under Carmines. The ALJ also disregarded as
carrying no probative weight Dr. Garner’s letter agreeing with Dr.
Reid. The Board agreed and affirmed.
At bottom, the decision of the Board is based on the fact that both
the ALJ and the Board either did not believe the two physicians
whose reports are a part of the record, or they discounted those
reports, or both. It is my opinion that they arrived at their conclusions
without any careful examination of those reports.
Dr. Reid was a 1963 graduate of the School of Medicine of Tulane
University. He had served as a resident in internal medicine at the
National Naval Medical Center and at the Naval Hospital. Addition-
ally, he had served at the Naval Hospital in what the American Medi-
cal Association refers to as a flexible or transitional year. His major
professional activity is that of full time staff at a hospital.
Dr. Garner was a 1967 graduate of the Medical School of the Uni-
versity of Virginia. His residency included the University of Virginia
Medical Center in neurological surgery, University of Virginia in neu-
rology, and the University of Virginia Medical Center in general sur-
gery. He is Board certified by the American Board of Neurological
Surgery.
No one can suggest anyone in the world who was more familiar
with Ward’s back than Dr. Reid and Dr. Garner. Dr. Reid was and
had been one of Ward’s examining and treating physicians on account
20 NEWPORT NEWS SHIPBUILDING v. WARD
of both injuries involved in this case while Ward worked for Newport
News. Additionally, Dr. Garner had operated on Ward’s back twice
for the very injuries at issue here, performing a laminectomy for exci-
sion of a herniated disc at L4-L5 in March 1988, and another laminec-
tomy for another herniated next lower disc at L5-S1 in August 1989.
Both surgeries included post-operative examinations by Dr. Garner,
so, absent an examination or operation on Ward’s back by some
unknown physician whom I am sure the Director would have pro-
duced, it is safe to say that Dr. Garner knew more about Ward’s back
than anyone in the world. I add that it is not possible to say that Dr.
Garner was not professionally qualified to make the reports which he
did. Also, Dr. Garner was perfectly capable of reading the letter report
of Dr. Reid which appears earlier in this opinion and expressing his
opinion with respect to that letter.
In Director, OWCP v. Newport News Shipbuilding, 8 F.3d 175 (4th
Cir. 1993) (Harcum I), in a similar fact situation involving an initial
permanent partial disability followed by a second injury causing addi-
tional permanent partial disability, we held that the ultimate perma-
nent partial disability must materially and substantially exceed the
disability as would have resulted from the subsequent work-related
injury alone. To show this, we held that "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." Harcum I, 8 F.3d at 185. We continued "[o]nce 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." Harcum I, 8 F.3d at
185-186. We repeated that direction in Newport News Shipbuilding v.
Director, OWCP, 131 F.3d 1079, 1081, 1082 (4th Cir. 1997) (Harcum
II), and in neither of those decisions did we require that which is cal-
led quantification be limited to the disability percentages such as
appear in the American Medical Association Guidelines to the Evalu-
ation of Permanent Impairment or like medical guidelines.
The record at hand includes a stipulation that Ward injured his
back in his employment on December 11, 1987 and that he had back
surgery and returned to light duty work. It was also stipulated that
Ward reinjured his back June 16, 1989 in the course of his employ-
NEWPORT NEWS SHIPBUILDING v. WARD 21
ment, that the "1989 injury aggravat[ed] his pre-existing weakened
back, required a second back surgery and . . . [Ward] has been unable
to return to shipyard work since then." Dr. Reid’s report of May 1,
1997 reports that Ward missed three weeks of work on account of his
first injury and then required work restrictions of no vertical ladders,
no lifting over 30 pounds, no work in tight spaces, and no stooping.
One of the restrictions was to expire after 14 days and the others 19
days after January 4th, and Ward was to return to the clinic on Janu-
ary 21, 198[8] for an evaluation.
Dr. Reid’s report continues that Ward required a laminectomy for
that herniated disc which was performed by Dr. Garner, whose reports
appear in the record. That report notes that Ward was discharged on
the 4th post-op day and notes relief of the leg pain. He was instructed
regarding care of the low back and told to return to Dr. Garner in
three weeks after April 7, 1988. Dr. Reid’s description of this injury
is that:
Such an injury and surgery leaves the back permanently
weakened and thus significantly more susceptible to further
injury and with the resultant disability substantially greater.
Dr. Reid’s letter continues that under the American Medical Associa-
tion Guidelines the injury and surgery described would rate a mini-
mum 5% permanent disability rating. It continues that Ward missed
six months of work and required work restrictions which are corrobo-
rated by the medical report from Dr. Reid dated September 15, 1988
showing that Ward was convalescing and continuing the restrictions
of not lifting objects heavier than 30 pounds, no repeated bending or
twisting or working in tight or cramped spaces, and no vertical lad-
ders.
Ward returned to light work and reinjured his back on June 16,
1989. This June 1989 injury was another herniated disc injury for a
different disc, L5-S1, and required a second surgery. The second sur-
gery was also performed by Dr. Garner and three of Dr. Garner’s
office memos appear in the record with respect to that injury and
operation. In Dr. Garner’s opinion, Ward was left with an AMA 17%
permanent partial disability rating on account of the back problem
with permanent restrictions which include no lifting heavier than 40
22 NEWPORT NEWS SHIPBUILDING v. WARD
pounds, no overhead work, no working in a kneeling or squatting
position, no repeated or continued bending or twisting and no work-
ing in tight spaces. It shows that he returned to work with these
restrictions on April 16, 1990, but no job could be found in the ship-
yard with those restrictions. As noted, he is not totally and perma-
nently disabled for all purposes, however, because he is employable
at $102 per week.
Dr. Reid’s letter report includes the following statements by him-
self as an examining and treating physician, which certainly qualify
as "medical evidence or otherwise," Harcum II, 131 F.3d at 1082(italics in original), which Dr. Garner was certainly qualified to exam-
ine and upon which express an opinion. Additionally, this evidence
is certainly evidence with respect to which the ALJ could "examine
the logic" and "evaluate." Carmines, 139 F.3d at 140. The fact that
neither the Board nor the ALJ did examine the logic nor evaluate the
evidence is no fault of Newport News.
Mr. Ward ultimately, in March 1988, required a laminec-
tomy for a herniated disc (Exhibit 2).
Such an injury and surgery leaves the back permanently
weakened and thus significantly more susceptible to further
injury and with the resultant disability being substantially
greater.
Mr. Ward had a second herniated disc injury and required
a second surgery.
Mr. Ward’s disability is not caused by his December 11,
1987 back injury alone, but rather his disability is materially
contributed to and made materially and substantially worse
by his aggravation injury on June 16, 1989.
Mr. Ward originally injured his back on December 11, 1987.
Mr. Ward required disc surgery and his back was left in a
permanently weakened condition. Nevertheless, he was able
to perform light duty shipyard work.
NEWPORT NEWS SHIPBUILDING v. WARD 23
The June 16, 1989 injury permanently and substantially
aggravated and worsened his weakened defective back
structure, resulting in another herniated disc, the need for a
second surgery, and his current disability.
Neither the 1987 injury, nor the 1989 injury, alone would
have disabled Mr. Ward from performing light duty ship-
yard work.
He performed such work after the 1987 injury. If he had had
a normal back when he suffered the 1989 injury, he likewise
would have been able to return to light duty shipyard work.
As I have pointed out, both the opinions of Dr. Reid and Dr. Garner
were documented with contemporaneous written records which are
nowhere contradicted, and no justification appears in the record for
the failure of both the Board and the ALJ to "examine the logic" and
"evaluate" those records. Neither the evidence of Dr. Reid nor Dr.
Garner was testimony of a "non-examining, non-treating physician"
which "should be discounted and is not substantial evidence." Car-
mines, 138 F.3d at 140, n.5.
The combination of the two injuries and two surgeries and the
cumulative effect disabled Mr. Ward from even light duty shipyard
work. Taken together or one at a time, the above items from Dr.
Reid’s report which are agreed to by Dr. Garner fit within the require-
ment of quantification that has been imposed on Newport News.
Newport News has shown "evidence of the type and extent of dis-
ability that the claimant would suffer if not previously disabled when
injured by the same work-related injury." Harcum II, 131 F.3d 1081,
1082. "Neither the 1987 injury, nor the 1989 injury, alone would have
disabled Mr. Ward from performing light duty shipyard work. He per-
formed such work after the 1987 injury. If he had had a normal back
when he suffered the 1989 injury, he likewise would have been able
to return to light duty shipyard work." J.A. 11 (italics added). And it
is admitted that he is now completely disabled from shipyard work.
24 NEWPORT NEWS SHIPBUILDING v. WARD
Thus, complete disability for shipyard work is certainly materially
and substantially greater than a light duty disability for shipyard work.2
Accordingly, I would grant the petition for review of Newport
News and require the Board to see that relief is awarded to Newport
News under 33 U.S.C. § 908(f)(1).
2
Newport News does not take the 5% AMA disability mentioned by
Dr. Reid, J.A. 19, and subtract it from the 17% AMA disability men-
tioned by Dr. Garner, J.A. 27, to arrive at its sought for result. Carmines,
138 F.3d at 143, precludes this method. But how this law of the circuit
fits our insistence on quantification is nowhere explained.