UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1781



NEWPORT NEWS    SHIPBUILDING    AND   DRY   DOCK
COMPANY,

                                                           Petitioner,

           versus


STEVEN YOUNG; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                          Respondents.


On Petition for Review of an Order of the Benefits Review Board.
(04-842)


Argued:   May 24, 2006                  Decided:     September 8, 2006


Before WIDENER and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion. Judge Floyd wrote the majority
opinion, in which Judge Widener joined.   Judge Duncan wrote a
separate opinion dissenting in part.


ARGUED: James Melvin Mesnard, SEYFARTH & SHAW, L.L.P., Washington,
D.C., for Petitioner. Matthew Harley Kraft, RUTTER MILLS, L.L.P.,
Norfolk, Virginia; Peter Brule Silvain, Jr.,         UNITED STATES
DEPARTMENT OF LABOR, Office of the Solicitor, Washington, D.C., for
Respondents.   ON BRIEF: Howard M. Radzely, Solicitor of Labor,
Allen H. Feldman, Associate Solicitor, Mark A. Reinhalter, Counsel
for Longshore, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Respondent Director, Office of
Workers’ Compensation Programs.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
FLOYD, District Judge:

     This petition for review arises under a claim of benefits

under the Longshore and Harbor Workers’ Compensation Act (the Act).

33 U.S.C. § 901 et seq.   Newport News Shipbuilding and Dry Dock

Company (Newport News) files its petition asserting that: 1) the

Benefits Review Board (Board) erred in concluding that the award of

benefits to Claimant Steven Young (Young) for his thoracic outlet

syndrome (TOS) and herniated cervical disc injuries was proper; 2)

Young’s herniated cervical disc condition is not work-related; and

3) Young should be limited to his scheduled award.            In the

alternative, Newport News asserts that it is entitled to section

8(f) relief, pursuant to 33 U.S.C. § 908(f).     For the reasons set

forth below, we affirm the decision of the Board.



                                 I.

                                 A.

     This case arises from Young’s employment as a welder with

Newport News, which began on June 19, 1977.       (J.A. at 90.)    On

February 25, 1988, Young injured his right wrist when a piece of

company equipment fell on him.        (J.A. at 211.)   Young went to

Newport News’ medical clinic on March 2, 1988,    (J.A. at 230), and

selected Dr. Daryl Hodgkinson to treat his injury.      (J.A. at 98.)

Dr. Hodgkinson diagnosed a ganglion mass on Young’s right wrist,

(J.A. at 317) which he removed on April 4, 1988.       (J.A. at 320.)


                                 3
Dr. Hodgkinson subsequently certified that Young was able to return

to “light-duty” work.      (J.A. at 104-05.)        On May 9, 1988, Young was

cleared by Dr. Hodgkinson to take part in “full-duty” work with his

right hand.    (J.A. at 105.)      He still had restrictions, however, on

the use of his left hand.       (J.A. at 105.)          On March 25, 1988,

after the wrist injury but before the surgery, Young sustained a

left elbow contusion. (J.A. at 232.)

     On July 20, 1988, while still working for Newport News, Dr. J.

Paul Muizalaar diagnosed Young with TOS, a nerve damage syndrome

that affected Young in both arms. (J.A. at 344.)              Young ended his

employment with Newport News on May 1, 1989. (J.A. at 80.)

     On    January   16,   1990,    Dr.    E.W.    Winfrey   performed   a   rib

resection on Young to correct the TOS on his right side.             (J.A. at

376-80.)      Nevertheless, Young’s TOS symptoms did not improve

following the surgery. (J.A. at 385.)             Treatment continued and the

same symptoms became increasingly present on Young’s left side.

(J.A. at 385.)       On May 3, 1994, Young underwent a second rib

resection surgery for the TOS, this time on his left side.               (J.A.

at 111, 401-05.)     On September 19, 1996, Dr. F. Noel Parent wrote

a letter to the Workman’s Compensation Department stating that, in

his opinion, Young should be permanently restricted, including “no

overhead work, no lifting over 10 lbs, and no work with his arms

out straight.”       (J.A. at 418.)        In January 2000, Dr. Jonathan




                                       4
Partington performed surgery on Young to correct a herniated

cervical disc.    (J.A. at 484-86.)



                                   B.

     Young filed claims for his right wrist and left elbow injury

in 1988, (J.A. at 210-13, 217-18.), for which Newport News agreed

to pay ten percent for permanent partial disability.          (J.A. at

220.)   Young brought a claim against Newport News on the non-

payment of bills related to his TOS and herniated cervical disc

injuries and, on August 11, 2000, the Administrative Law Judge

(ALJ) assigned to the case conducted a formal hearing on the suit.

(J.A. at 9.)

     By order dated February 12, 2001, the ALJ awarded Young

compensation for all of his injuries, including the February 25,

1988, wrist injury, the March 25, 1988, elbow injury, the TOS, and

the herniated cervical disc.     (J.A. at 8-24.)   In so doing, the ALJ

found that the TOS and herniated cervical disc were both work-

related. (J.A. at 19.)   The ALJ also found Young to have permanent,

partial disability. (J.A. at 23.)       On February 26, 2001, Newport

News filed a Motion to Reconsider, (J.A. at 26), which the ALJ

denied on March 9, 2001. (J.A. at 27.)

     Young appealed and Newport News cross-appealed the ALJ’s order

to the Board.    (J.A. at 29.)   Young contended that the ALJ erred in

not granting temporary total disability from February 23, 1998, to


                                    5
July 27, 2000. (J.A. at 30.)        Newport News, on the other hand,

asserted that the TOS and herniated cervical disc were not work-

related injuries.   (J.A. at 30.)       In the alternative, Newport News

argued that if the Board affirmed the ALJ’s finding that the

injuries were work-related, Newport News should be entitled to

section 8(f) (J.A. at 30.)

     The Board modified the ALJ’s order to reflect that Young was

entitled to temporary total disability from January 18, 2000, to

July 27, 2000, vacated the ALJ’s holding on the issue of whether

Newport News had established availability of suitable alternate

employment prior to July 27, 2000, and remanded the issue for

further consideration by the ALJ. (J.A. at 36.) The Board affirmed

the ALJ’s holding on all other issues. (J.A. at 36.)

     On remand, the ALJ held that Newport News had failed to

satisfy its burden of establishing suitable alternate employment

for Young between 1992 and 1998.        Therefore, the ALJ ordered that

although Newport News was entitled to a credit for benefits paid to

Young between March 21, 1996, and September 19, 1996, it was not

entitled to additional credits for benefits paid to Young between

1992 and 1998.   (J.A. at 45.)

     Newport News again appealed to the Board.        In its October 31,

2003, order, the Board remanded the case to the ALJ solely for a

determination of the suitability of certain positions for Young.




                                    6
(J.A. at 56.)     The Board affirmed the ALJ’s decision is all other

respects.     (J.A. at 56.)

     On remand, the ALJ held that Newport News had failed to

establish that a range of suitable jobs existed prior to Young’s

January 2000 surgery and, thus, that it was not entitled to credits

for benefits paid to Young between 1992 and 1998. (J.A. at 60.)

     Once more, Newport News appealed the ALJ’s holding to the

Board, and on June 30, 2005, the Board affirmed the ALJ’s decision.

(J.A. at 64-65.)    Newport News now petitions this Court for review

of the Board’s holding.



                                  II.

     In reviewing an issue decided by the Board, this Court’s

consideration is limited to whether the correct legal standards

were properly applied in making the decision, whether the decision

was supported by substantial evidence, and whether the decision was

rational.     Zapata Haynie Corp. v. Barnard, 

, 258 (4th

Cir. 1991).    “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.

Substantial evidence is more than a scintilla but less than a

preponderance.”     Elliott v. Administrator, Animal & Plant Health
Inspection Serv., 

, 144 (4th Cir. 1993) (internal

quotation marks and citations omitted).



                                 III.

                                   7
      Newport News first contends that Young is not entitled to

compensation for his TOS or herniated cervical disc injuries

because a formal claim was never filed.                   Nevertheless, the ALJ

found, and the Board affirmed, “that the record clearly shows that

[Newport News], through the various physicians to whom it referred

[Young], subsumed under either of the 1988 claims all treatments

and   surgeries    related     to    [Young’s]      TOS     and   cervical       spine

condition.”     (J.A. at 31.)       We agree.

      Pursuant to 33 U.S.C. § 913(a), a claimant must timely file a

claim with the deputy commissioner in the compensation district in

which the injury occurred.           U.S Industries/Federal Sheet Metal,

Inc. v. Director, OWCP , 

, 613 (1982).                     Although the

content of the claim is not specified in section 913(a), section

912(b) mandates that the claimant give the deputy commissioner and

his employer notice of his injury and requires that “[s]uch notice

. . . shall contain . . . a statement of the time, place, nature,

and cause of the injury.”1          

               The

claim “serves the purposes of notifying the adverse party of the

allegations     and     of   confining       the   issues    to   be     tried     and

adjudicated.”     

must be more than a mere declaration that
the employee has received an injury or is suffering from an illness
that is related to his employment; it must contain enough details
about the nature and extent of the injury or disease to allow the
employer to conduct a prompt and complete investigation of the
claim so that no prejudice will ensue.’” 

(quoting 1A
E. Jhraid, A. Sann, N. Golden, & B. Chase, Benedict on Admiralty §
71, 4-5 (7th ed. 1981)).
                                         8
        Citing to 3 A. Larson, The Law of Workmen's Compensation §

78.10, 15-2 (1976), with approval, the U.S. Industries Court

further noted the following:

     Professor Larson writes that an informal substitute for
     a claim may be acceptable if it identifies the claimant,
     indicates that a compensable injury has occurred, and
     conveys the idea that compensation is expected; that
     considerable liberality is usually shown in allowing
     amendment of pleadings to correct     defects unless the
     effect is one of undue surprise or prejudice to the
     opposing party; and that wide latitude is allowed as to
     variance between pleading and proof, but if the variance
     is so great that the defendant is prejudiced by having to
     deal at the hearing with an injury entirely different
     from the one pleaded, the variance may be held 

n.7. (citations, alterations and quotation marks

omitted).

     Turning now to the facts of this case, we observe that, on

June 6, 1984, medical records from Newport News’s physician state

Young’s diagnosis as a “Contusion Anterior Chest Wall.” (J.A. at

226.)    The cause of the chest wall injury is noted in the medical

report as occurring while Young was carrying a thirty-pound load up

a ladder. (J.A. at 226.)   Another report submitted to Newport News

on September 1, 1987, states as the diagnosis “Cervical Strain by

history.” (J.A. at 229.)   The cause of the cervical strain is noted

in the report as occurring when Young “was taking a welding machine

off a unit. [T]he machine started to fall, I jerked my shoulder

[and] neck when I tried to keep it from falling.”    (J.A. at 229.)

Moreover, on Young’s March 25, 1988, claim form, he states that he

had a “pinched nerve on [his] left elbow.”   (J.A. at 218.)   Viewed

in the aggregate, these medical reports alone demonstrate that


                                  9
Newport News was on notice of Young’s TOS and cervical disc

injuries.

     In addition, the record is replete with other substantial

evidence that supports the decision below.               For instance, and as

already observed, the ALJ found that the diagnosis of Young’s TOS

and herniated cervical disc, which were diagnosed while Young was
being treated for the wrist and elbow injury, actually subsumed the

claims.    (J.A. at 31.)       Furthermore, the ALJ found that,

     [t]he record does not reflect that any of the physicians,
     including   the    [Newport   News]   physicians,    ever
     specifically told [Young] that the subsequent operations
     for [TOS] and cervical spine problems were not related to
     the two 1988 injuries for which he had filed claims. Nor
     does the record reflect that any physician specifically
     suggested to [Young] that these conditions may be
     independently work related and, as such, require separate
     claims for compensation.

(J.A. at 11 n.6.)           “Moreover, the [ALJ] found that [Young] was

unaware at the time that his treatment, including the surgeries,

was not related to the two injuries for which he filed formal

claims.”      (J.A. at 31.)      Additionally, “it is clear that [Young]

sought benefits for his pain, which merely originated with the

wrist   and    elbow   injuries     claimed   and     which   subsequently   was

diagnosed     as    other    conditions.      Thus,    the    [ALJ]   rationally

determined that [Newport News] was aware of claims for these

conditions.”       (J.A. at 32.)    In fact, Young’s TOS and cervical disc

injuries were covered under the paperwork of his wrist and elbow

injuries; and “the claims before [the ALJ] encompassed all of

[Young’s] claims.”          (J.A. at 31.)   Consequently, finding that the


                                       10
Board properly employed the correct legal principles, that its

decision    is   supported   by   substantial   evidence,   and   that   the

decision is rational, we affirm the Board’s conclusion that Young

met the claim requirement for his TOS and cervical disc injuries,

as set forth in the Act.



                                     IV.

     Newport News next argues that the awarding of benefits based

on Young’s cervical disc condition was improper because there is no
evidence in the record that the injury was work-related.2           We are

unconvinced.

     Section 920(a) provides in pertinent part, “In any proceeding

for the enforcement of a claim for compensation under this chapter

it shall be presumed, in the absence of substantial evidence to the

contrary . . . [t]hat the claim comes within the provisions of this

chapter.”    33 U.S.C. 920(a).     Therefore, after Young came forward

with substantial evidence that his TOS and cervical disc injuries

were work-related, and absent substantial evidence from Newport

News to the contrary, the presumption remains that Young’s claim

“comes within the provisions of [the Act].”           Universal Maritime
Corp. v. Moore, 

, 262 (4th Cir. 1997).




     2
      In Petitioner’s Brief, Newport News contends that, “As early
as September 4, 1991, Dr. Muizelaar indicated that [Young’s]
bilateral thoracic outlet syndrome is not work-related.” (Pet.’s
Bf. 16 (citing J.A. at 355).) Petitioner misreads Dr. Muizelaar’s
report.   In the report, Dr. Muizelaar states nothing regarding
whether Young’s TOS is work-related.

                                     11
     In the hearing before the ALJ, Newport News rested on the

argument that neither Young’s TOS nor his herniated cervical disc

were related to the claimed elbow or wrist injury.         (J.A. at 19.)

Nevertheless, Newport News failed to provide substantial evidence

to overcome the presumption that the injuries were work-related.

Accordingly, we conclude that the Board did not err in holding that
the cervical disc injury was work-related.



                                    V.

     Newport    News   also    contends   that   Young’s   injuries   are

permanent, that he is not totally disabled, and that he is limited

to his scheduled award.       As noted above, however, and as found by

the Board in its March 18, 2002, decision, Young’s TOS and cervical

spine conditions are work-related and therefore compensable. (J.A.

at 33.)     Moreover, Young’s conditions are not covered by the

schedule.   Consequently, we find that the Board did not err on

these points.




                                    VI.

     Finally, as an alternative argument, Newport News asserts that

if we determine that Young is entitled to the benefits detailed

above, then Newport News should be allowed to seek section 8(f)

relief.   We disagree.

     When an employer demonstrates an entitlement to section 8(f)

relief, then the Special Fund, administered by the Director of the

                                    12
Office of Workers’ Compensation Programs, United States Department

of Labor, assumes the responsibility to pay the claimant’s weekly

disability benefits after the employer pays the first 104 weeks of

permanent disability compensation.         33 U.S.C. §§ 908(f)(1) and

2(A), 944.     To qualify for the relief here, Newport News must

establish three elements: (1) Young had a pre-existing permanent

partial disability; (2) this disability was evident to Newport News

prior to the subsequent work-related injury; and (3) Young’s

subsequent work-related injury alone would not have caused the

ultimate extent of his disability. Newport News Shipbuilding & Dry

Dock v. Director, OWCP (Harcum), 

, 182-83 (4th Cir.

1993).   In cases of permanent partial disability, there is a more

substantial burden on the employer to establish that the ultimate

permanent    partial   disability   is   materially   and   substantially

greater than the disability from the subsequent work-related injury

alone.   

Court described the employer’s burden to

establish contribution in a permanent partial disability case as a
quantification requirement.     

essence, 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.”          

Newport News failed to set forth the requisite quantification to

compare impairment.

     Specifically, Newport News’s physician, Dr. James Reid, failed

to quantify the type and extent of disability that Young would have

                                    13
suffered from his TOS alone.     (J.A. at 35.)     Moreover, nowhere in

the record nor in the proceedings before the ALJ or the Board does

Newport News tangibly quantify Young’s injuries from which a basis

for pre-existing disability could be set.              We agree with the

Board’s decision that, in the absence of such evidence, Dr. Reid’s

opinion   is   legally   insufficient   to   satisfy    the   contribution

requirement and, thus, that the granting section 8(f) relief to

Newport News would be inappropriate.         Furthermore, to the extent

that Newport News contends that it should be allowed to reargue its
position on remand, we find that such argument would serve no

useful purpose.




                                 VII.

     Accordingly, for the foregoing reasons, the judgment below is

affirmed.

                                                                  AFFIRMED




                                  14
DUNCAN, Circuit Judge, dissenting in part:

     Because Young failed to file either a formal or informal claim

for LHWCA benefits for his thoracic outlet syndrome (“TOS”) or

cervical spine problems, I must respectfully dissent from Part III

of the majority’s opinion.

     Under the LHWCA, an employee must file a claim to preserve his

right to compensation.     See 33 U.S.C. § 913(a).      The claim “serves

the purposes of notifying the adverse party of the allegations and

of confining the issues to be tried and adjudicated.”                   U.S.

Indus./Federal Sheet Metal Inc. v. Director, OWCP, 

,

613 (1982).     The claim “must contain enough details about the

nature and extent of the injury . . . to allow the employer to

conduct a prompt and complete investigation of the claim so that no

prejudice will ensue.”     Meehan Seaway Serv. Co. v. Director, OWCP,

, 1167 (8th Cir. 1997).

     Here,    Young   sought   benefits   for   TOS   and   cervical   spine

problems, but he never filed a formal claim for either injury.

Young did file formal claims for a wrist and elbow injury, neither

of which were related to his TOS or cervical spine problems.           J.A.

209, 216, 504, 515, 570.       Moreover, Young never attempted to amend

his formal claims to add TOS or cervical spine problems.

     Young’s failure to file formal claims for TOS or cervical

spine problems is not necessarily fatal to recovery because “wide

latitude is allowed as to variance between pleading and proof” in


                                     15
LHWCA actions.   U.S. Indus./Federal Sheet Metal 

, n.7 (quotations omitted).      However, “if the variance is so

great that the defendant is prejudiced by having to deal at the

hearing with an injury entirely different from the one pleaded, the

variance may be held fatal.”      

variance exists

here.   The injuries listed on Young’s claims were different from

and unrelated to those for which he ultimately sought compensation.

Given this complete disconnection between the pleadings and the

proof, even a liberal pleading standard cannot save Young’s claims.

     Certainly, the Supreme Court has suggested that “an informal

substitute for a claim may be acceptable if it ‘identi[fies] the

claimant, indicate[s] that a compensable injury has occurred, and

convey[s] the idea that compensation is expected.”    

Larson, The Law of Workmen’s Compensation § 78.11, p. 15-9

(1976)) (alterations in original). Such an informal claim turns on

whether an employer receives sufficient notice of the claim to

offset any prejudice.   See 

to conclude

that Newport News received sufficient notice of Young’s injuries

from his doctors to support such a claim.     I must disagree.

     While it is true that Young’s doctors notified Newport News of

the course of his treatment and his diagnoses, such notice alone is

insufficient to state an informal LHWCA claim.     The employer must

receive notice that the employee intends to seek compensation for

the injury.   

evinces no effort on Young’s


                                  16
part to notify Newport News that he expected compensation for his

TOS or cervical spine problems.    Instead, the record demonstrates

that Young only sought compensation for two unrelated injuries.

Although Newport News undoubtedly knew of the fact of Young’s TOS

and cervical spine problems, it had no notice that Young sought

compensation therefor.

     I do not believe, and find no support for the proposition,

that the mere fact that “Newport News was on notice of Young’s TOS

and cervical disc injuries” [Maj. Op. at 10] alone constitutes a

claim–-even an informal one.




                                  17