Petitioners,                                                      No. 98-70049
v.                                                                      BRB No. 97-0875
Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted
August 13, 1999--Seattle, Washington
Filed January 31, 2000
Before: William C. Canby, Jr., Melvin Brunetti, and
Diarmuid F. O'Scannlain, Circuit Judges.
Opinion by Judge O'Scannlain

Russell A. Metz (argued), Metz & Associates, Seattle, Wash-
ington, for the petitioners.
Marvin Krislov, Carol A. De Deo, Janet R. Dunlop, Laura J.
Stomski, Kristin Dadey (argued), United States Department of
Labor, Washington, D.C., for the respondents.
O'SCANNLAIN, Circuit Judge:
We must decide whether an employer is eligible for
second-injury reduction in liability for benefits payable for a
worker's permanent partial disability that may be substan-
tially and materially greater as a result of his preexisting med-
ical condition.
Marine Power & Equipment and Industrial Indemnity
Company ("Marine Power") hired Johnny Quan in 1978 as a
ship scaler, and on June 7, 1983, he injured his right shoulder

on the job. Prior to his work for Marine Power, Quan -- a
native of Guam -- served as an airplane mechanic for the
United States Navy from 1955 to 1970.
In 1968, he developed Bell's palsy, which resulted in the
partial paralysis of the right side of his face. Quan's palsy ren-
dered him unable to close his right eye completely and caused
him occasionally to drool. These symptoms, in turn, triggered
a depressive reaction and restricted Quan to jobs that involved
limited contact with the public because of his concern with his
facial paralysis. A report by a Navy adjudicator in 1970 noted
that Quan's condition had resulted in "a diminution of those
characteristics which make a desirable employee, such as
aggressiveness, desire to excel, or initiative, not to mention
the physical impairment which precludes his engaging in
many types of employment." In 1974, the Veterans Adminis-
tration awarded Quan a forty percent disability.
After he retired from the Navy in 1970, Quan worked for
the next several years in positions that did not require public
contact -- such as assembly line worker, housekeeper, custo-
dian, dishwasher, and delivery truck driver -- until he joined
Marine Power in 1978. After he injured his shoulder while
ship scaling at Marine Power in June 1983, he worked light
duty until he was laid off in August 1984. Quan underwent
surgery to repair his rotator cuff in May 1985, and by May 7,
1986, he had reached maximum medical improvement with
respect to the industrial injury. As a consequence of his shoul-
der injury, work as a ship scaler was thereafter beyond Quan's
physical capabilities. Quan was not able to secure work again
until February 14, 1988, when he obtained a part-time job as
a security guard on weekends.
On November 9, 1983, Quan filed a claim for compensa-
tion benefits under the Longshore and Harbor Workers Com-
pensation Act, 33 U.S.C. S 901 et seq., (the "Act") against
Marine Power. To establish that Quan was not totally disabled
following his 1983 shoulder injury, Marine Power submitted

two labor market surveys, one conducted in 1986, and the
other in 1991. Marine Power's vocational consultant, L. Kent
Shafer, completed the first labor market survey in December
1986, identifying six positions that were suitable for Quan
given his age, education, work history, and functional capaci-
ties. Quan's treating physician approved five of the six posi-
Shafer completed the second labor market survey in May
1991 in which he took into consideration additional medical
information related to Quan's preexisting Bell's palsy and
associated depressive condition that had been developed since
his first contact with Quan. In this survey, Shafer ruled out
two of the 1986 jobs as improbable and identified six other
job openings that were suitable. Shafer also noted that Quan
should avoid dusty or windy work environments because of
his inability to close his eye resulting, of course, from his
Bell's palsy. According to Shafer, Quan's work history sup-
ported the conclusion that this particular problem limited
Quan's work options and affected his ability to compete for
In his December 9, 1991 Decision and Order Awarding
Benefits, Administrative Law Judge ("ALJ") Steven E. Halp-
ern awarded Quan permanent partial disability ("PPD") com-
pensation beginning on February 14, 1988. Moreover, ALJ
Halpern concluded that Marine Power was entitled to second-
injury relief under 33 U.S.C. S 908(f) ("S 8(f)"), thus reducing
Marine Power's liability for payments due under Quan's PPD
award to 104 weeks. On appeal by the Director, the Benefits
Review Board vacated ALJ Halpern's grant of S 8(f) relief.
The Board held that the vocational evidence supported the
conclusion that Quan's Bell's palsy and depression limited
Quan's opportunities for suitable employment, but that ALJ
Halpern had not clearly delineated whether the ultimate PPD
was materially and substantially greater than it would have
been from his shoulder injury alone.

On remand, ALJ Frederick D. Neusner reconsidered the
jobs in Shafer's 1986 and 1991 labor market surveys. Using
wage-rate comparisons to determine whether the element of
"materially and substantially greater" contribution had been
met, ALJ Neusner denied the S 8(f) relief, finding that Quan's
palsy did not affect his wage-earning capacity following his
shoulder injury. On appeal by Marine Power from this second
ruling by an ALJ, the Board affirmed the denial ofS 8(f)
relief on November 21, 1997, finding ALJ Neusner's decision
in accordance with the Board's remand instructions and sup-
ported by substantial evidence.
This petition for judicial review followed.
We review the Board's decision for substantial evidence
and errors of law. See Alcala v. Director, OWCP , 141 F.3d
942, 944 (9th Cir. 1998). The Board must accept the ALJ's
findings of fact unless they are contrary to law, irrational, or
unsupported by substantial evidence in the record considered
as a whole. See Kashuba v. Legion Ins. Co., 139 F.3d 1273,
1275 (9th Cir. 1998), cert. denied, 119 S. Ct. 866 (1999).
Thus, we must conduct an independent review of the adminis-
trative record to determine whether the Board adhered to its
standard of review. See Container Stevedoring Co. v. Direc-
tor, OWCP, 935 F.2d 1544, 1546 (9th Cir. 1991). A decision
is supported by substantial evidence if there exists "such rele-
vant evidence as a reasonable mind might accept as adequate
to support a conclusion." E.P. Paup Co. v. Director, OWCP,
999 F.2d 1341, 1353 (9th Cir. 1993) (quoting Lockheed Ship-
building v. Director, OWCP, 951 F.2d 1143, 1145 (9th Cir.
[1] Under the aggravation rule of the Longshore and Har-
bor Workers' Compensation Act, when an already partially

disabled worker suffers an employment injury, the employer
is liable for the worker's total resulting disability, including
any disability also caused by the previous condition.
[2] In S 8(f), however, the Act provides relief from this
       Compensation for disability shall be paid to the
      employee as follows:
       (f) Injury increasing disability:
       (1) . . . . In all other 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 in addition to com-
      pensation under subsections (b) and (e) of this sec-
      tion, compensation for one hundred and four weeks
33 U.S.C. S 908(f) (emphases added). To qualify for S 8(f)
relief, the employer bears the burden of establishing that
(1) the claimant had an existing permanent partial disability
prior to the employment injury, (2) the disability was manifest
to the employer prior to the employment injury, and (3) the
current disability is not due solely to the most recent injury.
See Director, OWCP v. Cargill, Inc., 709 F.2d 616, 619 (9th
Cir. 1983). That is, that the current disability must be materi-
ally and substantially greater because of the pre-existing
condition than it would be from the employment injury alone.
See 33 U.S.C. S 908(f). In this case, there is no dispute that
the first two elements are satisfied. The only issues before us
are whether Marine Power established that Quan's current
disability is materially and substantially greater because of his
Bell's palsy than it would have been as a result of the shoul-
der injury alone, and whether the ALJ who made that determi-

nation should have considered more than just the possible
wages that Quan was able to obtain after his injury.
Marine Power asserts that ALJ Neusner and the Board
erred in refusing to consider Quan's inability to compete in
the open market due to his Bell's palsy. Marine Power argues
that Quan's pre-existing Bell's palsy combined with his shoul-
der injury foreclosed Quan from some types of employment
that he could otherwise perform had he suffered only the
shoulder injury, even though it may not have affected the
wages he could earn at the jobs that have been identified as
appropriate for him. Thus, concludes Marine Power, Quan's
ultimate PPD is materially and substantially greater in the
economic sense due to the palsy, and Marine Power is entitled
to second-injury relief.
[3] We disagree. The Act itself requires a comparison of
wage rates if actual earnings fairly represent the worker's
earning capacity. The contribution requirement, therefore,
dictates that the ALJ determine the employer's current com-
pensation liability, though in appropriate cases there may be
some value in looking at the range of jobs available to the dis-
abled worker. Under this analysis, we conclude that Marine
Power has not met its burden of showing that Quan was pre-
cluded by his Bell's palsy from employment that would not
also have been precluded by his shoulder injury.
[4] Section 8(h) states:
       The wage-earning capacity of an injured employee
      in cases of partial disability . . . shall be determined
      by his actual earnings if such actual earnings fairly
      and reasonably represent his wage-earning capacity:
      Provided, however, That if the employee has no
      actual earnings or his actual earnings do not fairly
      and reasonably represent his wage-earning capacity,

      the deputy commissioner may, in the interest of jus-
      tice, fix such wage-earning capacity as shall be rea-
      sonable, having due regard to the nature of his
      injury, the degree of physical impairment, his usual
      employment, and any other factors or circumstances
      in the case which may affect his capacity to earn
      wages in his disabled condition, including the effect
      of disability as it may naturally extend into the
33 U.S.C. S 908(h). Wages alone may not always represent a
worker's actual wage-earning capacity. An ALJ may thus
need to consider alternative factors when, for instance, a dis-
abled worker is spared demanding physical exertion by the
kindness of his employer or coworkers in shielding him from
such work on the job, see LaFaille v. Benefits Review Board,
U.S. Dept. of Labor, 884 F.2d 54, 62 (2d Cir. 1989); or if a
worker must spend greater time and effort to achieve his pre-
injury production, or medical or other circumstances indicate
probable future wage loss due to injury, see Container Steve-
doring Co., 935 F.2d at 1550. In each of these situations, the
fact that a worker earns as much or more after his injury does
not accurately reflect his reduction in wage-earning capacity
in the current or probable future labor market. Marine Power
has not suggested that Quan's condition will deteriorate in the
future, that he has a sympathetic employer and coworkers
who enable him to work when otherwise he would not be able
to, or that any other factor affecting his current wage-earning
capacity would not be valid in the future.
[5] Marine Power relies on Randall v. Comfort Control,
Inc., 725 F.2d 791, 799 (D.C. Cir. 1984), for its assertion that
limited opportunities for employment should be considered in
determining Quan's wage-earning capacity. The D.C. Circuit
held in Randall that a limit on employment opportunities
"justifies an inference that [the worker] is likely to spend
more time unemployed than he would if he were not injured."
Id. While we agree that we are not always restricted to consid-

ering only the wages that Quan could obtain after his injury,
this case is not governed by such extraneous considerations.
Randall is distinguishable. In Randall, the injured worker had
held a highly skilled job in the sheet metal trade as an air bal-
ancing specialist. See id. at 793. In that skilled position, the
worker was not required to do any actual sheet metal work,
which would have involved heavy lifting beyond his physical
capacities. See id. There were only fifteen such positions in
only two companies in the worker's area that did not require
actual heavy sheet metal work, and one of those two compa-
nies had already stated that it would not hire the worker. See
id. Thus, the worker in Randall was limited to eight potential
positions, while prior to his injury he could compete for any
sheet metal job in the area. Here, there was no such showing.
Quan has no highly specialized skill. On the contrary, he was
qualified only for unskilled work both before his shoulder
injury and afterward. Marine Power has not shown that there
is a limited number of unskilled positions in Quan's area for
which he is qualified. Furthermore, Marine Power has not
substantiated that any limit on employment opportunities
caused by Quan's pre-existing Bell's palsy would measurably
affect the number of jobs available to him in such a way as
to make it probable that he would spend more time unem-
ployed as a result. Here, therefore, the Board properly
required the ALJ to use wage rates to determine whether the
contribution element was met.
As for determining contribution, the Board properly articu-
lated the Ninth Circuit's standard, set out in Sproull v. Direc-
tor, OWCP, 86 F.3d 895, 900 (9th Cir. 1996), that the
contribution be material and substantial. Marine Power offers
no legal argument to support its assertion that the standard
must be precisely defined to be properly applied, and no such
precision is required.
[6] Contrary to Marine Power's assertion that it met the
contribution requirement, both Quan's most recent psycholog-

ical evaluation and his own testimony indicated that neither
his palsy nor his depression would impair his ability to find
a job. In fact, immediately after his separation from the Navy,
Quan worked serving customers at a steam table and drove a
truck delivering meals despite his facial paralysis. Further, it
is irrelevant that Quan was forty percent disabled when he
started work at Marine Power. The issue is whether the palsy
and related depression contributed to his ultimate disability
after his shoulder injury. As we have already noted, it does
not appear that any limit on Quan's wage-earning capacity
resulting from his palsy was substantially and materially
greater than the limit resulting from his shoulder injury.
Marine Power also contends that it satisfied the contribu-
tion element by identifying three jobs that Quan would be
able to perform with only his shoulder injury, but that he
could not perform because of his Bell's palsy. The ALJ
explicitly rejected Shafer's expert testimony on this element,
however, stating that it
      is offset . . . by the credible testimony of
      Ms. Bertino, Claimant's vocational counselor, who
      stated (1) that Claimant was in the lower ten percent
      of the population in general aptitude, eye/hand coor-
      dination and form perception and (2) that the Claim-
      ant was below average in spatial perception and
      manual dexterity. After carefully weighing
      Ms. Bertino's testimony, I doubt that the Claimant
      was able to perform the driver or parking attendant
      positions after suffering his shoulder injury, which
      materially impaired his eye/hand coordination and
      manual dexterity.
       Based on this evidence of record, Claimant's inca-
      pacity to perform the work of a delivery driver and
      parking attendant had resulted in part from both his
      pre-existing impairments and the disability caused
      by his shoulder injury. For these reasons the Claim-

      ant cannot be found to have suffered any further loss
      of earning potential . . . solely as a consequence of
      his pre-existing . . . Bell's palsy and depression.
The ALJ's finding was clearly supported by substantial evi-
[7] Marine Power's witness testified that he did not actually
test Quan in 1986 or 1991 for dexterity, but that General Apti-
tude Test Battery ("GATB") scores indicating low manual
dexterity and eye/hand coordination were known to be very
unreliable, and Quan had successfully demonstrated sufficient
manual dexterity in his jobs as a dishwasher, aircraft
mechanic, and ship scaler to support Shafer's contention that
Quan could perform these three jobs. Ms. Bertino, on the
other hand, worked directly with Quan from his referral in
April 1987 approximately until his discharge from outpatient
services on January 1, 1988 and participated extensively in his
pain and vocational rehabilitation. Her involvement with him
included GATB testing and referral to a pain clinic, psycho-
logical counseling, physical therapy, occupational therapy,
and vocational assistance. She directly administered the test-
ing and supervised the entire progress of his case. She
reported detailed findings and interpretations of his GATB
test and related them to Quan's personal and individual abili-
ties. The ALJ was perfectly justified in giving weight to both
experts' testimony and finding that the jobs were not suitable
due to both conditions. The Board, therefore, did not err in
accepting the ALJ's conclusion that the three jobs were
unsuitable, but not substantially and materially due to his
palsy alone.
For the foregoing reasons, we conclude that substantial evi-
dence supports ALJ Neusner's conclusion, and the Board's
subsequent affirmance, that Marine Power does not qualify
for S 8(f) relief because Quan's current disability is not sub-

stantially and materially greater as a result of his preexisting