| FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARINE POWER & EQUIPMENT;
INDUSTRIAL INDEMNITY COMPANY,
Petitioners,
No. 98-70049
v.
BRB No. 97-0875
DEPARTMENT OF LABOR; BENEFITS
OPINION
REVIEW BOARD; JOHNNY QUAN,
Respondents.
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
_________________________________________________________________
COUNSEL
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.
_________________________________________________________________
OPINION
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.
I
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
925
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
926
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-
tions.
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
jobs.
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.
927
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.
II
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.
1991)).
III
[1] Under the aggravation rule of the Longshore
and Har-
bor Workers' Compensation Act, when an already
partially
928
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
rule:
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
only.
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-
929
nation should have considered more than just
the possible
wages that Quan was able to obtain after
his injury.
IV
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,
930
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
future.
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-
931
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.
V
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-
932
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-
933
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-
dence.
[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.
VI
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-
934
stantially and materially greater as a result
of his preexisting
palsy.
AFFIRMED.
935
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