decided as amended september 7 1979.: June 18, 1979.
ON PETITIONS FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD United States Department of Labor BRB No. 76-338
Before Gibbons and Higginbotham, Circuit Judges, and Markey, Chief Judge, United States Court of Customs and Patent Appeals.*fn*
In February 1975 Leo McCabe applied to the United States Department of Labor for disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (the Act). His former employer, Sun Shipbuilding and Dry Dock Company (Sun Shipbuilding) resisted an award of benefits asserting that McCabe did not have an injury that was the result of his employment with Sun Shipbuilding and therefore was not eligible for benefits. McCabe's claim was denied initially and he was unsuccessful in overturning the denial in an appeal before the Benefits Review Board of the Department of Labor (BRB). McCabe asks this court to reverse the decision of the BRB and find him eligible for benefits on the ground that he is totally or partially disabled within the meaning of the Act. We uphold the finding of the BRB that McCabe is not eligible for total disability benefits and find that McCabe may be eligible for partial disability benefits. However, we are unable to resolve the issue of partial disability benefits because of some irreconcilable inconsistencies in the record below. We therefore will remand this case to the administrative agency for a second consideration of this issue.
Leo McCabe, who was sixty years old when he made his application for disability benefits, was employed from 1931 to 1974 at Sun Shipbuilding. During that more than 40-year period of employment he worked in a variety of positions primarily as a chipper and caulker. In these positions he was exposed to metal dust particles, welding fumes, and asbestos particles. Decision and Order No. 76-LHCA-427 of the Administrative Law Judge at 8, June 16, 1976, Joint Appendix at 250. (All subsequent citations to the Decision will refer only to the Joint Appendix).
In November 1974, while at work McCabe experienced considerable pain in his upper chest and reported to Sun Shipbuilding's dispensary for medical assistance. An x-ray of his chest revealed the possibility of some lung damage and the company's doctor, Dr. Vincent Kownacki, told McCabe that it would not be wise for him to continue on his job as a metal chipper, and suggested that McCabe seek further medical assistance to clarify the diagnosis and, if necessary, to receive treatment. Appendix at 230-33. McCabe went to a specialist in pulmonary diseases, Dr. George Strother, who concluded that McCabe may have had some form of pneumoconiosis and interstitial lung disease.*fn1 Dr. Strother suggested that a lung biopsy would be necessary for a more accurate diagnosis and told McCabe that "it would probably not be wise (for him to) continue on his job as a metal chipper." Id. McCabe chose to cease his employment and applied for and was granted early retirement benefits from Sun Shipbuilding in January 1975.
In February 1975 he filed for disability benefits alleging that he was permanently disabled because he suffered from histoplasmosis, interstitial lung disease and pneumoconiosis.*fn2 Appendix at 202. His application was resisted by Sun Shipbuilding which asserted, Inter alia, that McCabe did not have a disabling injury that resulted from his employment.
An administrative hearing was conducted at which both McCabe and Sun Shipbuilding called medical experts to testify about the condition of McCabe's lungs. The major difference which arose among these witnesses concerned the significance of interstitial markings which were revealed in the x-rays of McCabe's lungs. The administrative law judge, after reviewing the evidence, denied McCabe's claim and found:
1. Claimant Leo McCabe has been employed as a shipfitter and chipper . . .
2. During that time he has been exposed to metal dust particles, as well as welding fumes, and asbestos particles during the course of his employment . . .
5. Claimant should not continue to work in a confined area where he might inhale welding fumes, asbestos particles, or metal particles, or any other foreign substance which ...