BRB No. 01-0826
NICHOLAS CALISE )
)
Claimant-Petitioner )
)
v. )
)
UNIVERSAL MARITIME SERVICE ) DATE ISSUED: 07/17/2002
CORPORATION )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order and Order of Denial of Motion for
Reconsideration of Ralph A. Romano, United States Department of Labor.
James R. Campbell, Middle Island, New York, for claimant.
Christopher J. Field (Field, Womack & Kawczynski, LLC), South Amboy, New
Jersey, for self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and
GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order and Order of Denial of Motion for
Reconsideration (99-LHC-2636) of Administrative Law Judge Ralph A. Romano rendered
on a claim filed pursuant to the provisions of the Longshore and Harbor Workers'
Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We
must affirm the findings of fact and conclusions of law of the administrative law
judge which are rational, supported by substantial evidence, and in accordance with
law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965); 33 U.S.C. §921(b)(3).
Claimant, a voluntary retiree, sought benefits under the Act for a noise-induced hearing loss allegedly sustained during the course of his employment with
employer, based on an audiogram dated October 15, 1997, which revealed a 17.3
percent binaural hearing loss. Claimant began working as a longshoreman in 1960
and retired on December 31, 1989. Throughout his years on the waterfront, claimant
testified he worked in a noisy environment, performing various functions,
including that of a holdman and a hustler driver. Tr. at 36, 37.
The record contains five audiograms. The first, administered on May 24,
1967, revealed normal hearing in the right ear and a high frequency left hearing
loss, essentially rated as zero percent. CX 5 at 10-11; see also EX 11 at
23-24. The second, administered on June 3, 1985, showed a right ear high frequency
hearing loss and progression of the high frequency loss in the left ear. CX 5 at
11. The third, administered on November 12, 1996, by Dr. Kantu, showed a 6.875
percent binaural hearing loss. EX 7, 11 at 28. The fourth, administered on October
15, 1997, by Dr. Matthews, showed a work-related 17.3 percent binaural hearing
loss. CX 2. The fifth, administered by Dr. Katz on March 16, 1999, showed a 10.3
percent binaural impairment. EX 3.
In his Decision and Order, the administrative law judge found that claimant
was entitled to invocation of the presumption at Section 20(a) of the Act, 33
U.S.C. §920(a), as claimant testified to his exposure to loud noise with
employer, and Dr. Matthews stated that some of claimant's hearing loss is due to
work-related exposure to noise. CX 2. The administrative law judge then
determined that employer established rebuttal of the Section 20(a) presumption,
based on the opinion of Dr. Katz that claimant's hearing loss is not caused by work
exposure to noise, due to the asymmetric loss shown on the audiograms and the
progression of the hearing loss following claimant's retirement. On weighing the
evidence of record as a whole, the administrative law judge credited the opinion
of Dr. Katz over that of Dr. Matthews, and accordingly denied benefits. The
administrative law judge summarily denied claimant's for reconsideration. On
appeal, claimant challenges the administrative law judge's denial of benefits, and
employer responds, urging affirmance.
Where, as in the instant case, it is uncontested that claimant has established
his prima facie case for invocation of the Section 20(a) presumption, the
burden shifts to employer to rebut it with substantial countervailing evidence that
claimant's hearing loss was not caused, contributed to or aggravated by his
employment. See generally Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th
Cir.1998); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C.Cir.), cert. denied, 429 U.S. 820 (1976); Davison v. Bender
Shipbuilding & Repair Co., 30 BRBS 45 (1996). If the administrative law judge
finds that the Section 20(a) presumption is rebutted, then all relevant evidence
must be weighed to determine if a causal relationship has been established, with
claimant bearing the burden of persuasion. See, e.g., Universal Maritime
Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); Meehan Serv.
Seaway Co. v. Director, OWCP, 125 F.3d 1163, 31 BRBS 114(CRT) (8th Cir. 1997),
cert. denied, 118 S.Ct. 1301 (1998); see also Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
Claimant contends the administrative law judge erred in relying on Dr. Katz's
opinion to rebut the Section 20(a) presumption, because it is based on claimant's
"self-diagnosis" of worsening hearing in the years following claimant's retirement.
Moreover, claimant contends that Dr. Katz's reasoning is faulty as it fails to
account for the worsening in claimant's hearing between the 1967 and 1985
audiograms, administered while claimant was still working. Contrary to claimant's
contention, Dr. Katz's opinion is not based solely on claimant's "self-diagnosis"
of increased hearing loss. The progression of claimant's hearing loss is evident
from the reported results of the various audiometric tests, and Dr. Katz discussed
this progression in his deposition. EX 11. Dr. Katz also stated that the hearing
loss demonstrated on the 1985 audiogram is not work-related because of the
asymmetry of the loss and because the loss is a conductive type loss which is not
noise-related unless it is due to an explosion. Id. at 24-27. Thus, the
fact that a greater loss was demonstrated on the 1985 audiogram than on the 1967
audiogram does not demonstrate error in Dr. Katz's reliance on the post-retirement
progression of claimant's hearing loss, nor does the mere fact of a demonstrated
hearing loss in 1985 establish the work-relatedness of that loss. With regard to
the progression of claimant's hearing loss after 1985, Dr. Katz stated it was not
work-related, again because of the asymmetric results and because of claimant's
age. Id. at 30-32. Finally, Dr. Katz's opinion, that claimant's hearing loss
is "probably" due to age, is not too equivocal to rebut the Section 20(a)
presumption, as he also stated that claimant's hearing loss is not due to work
exposure to noise. See O'Kelley v. Dept. of the Army/NAF, 34 BRBS 39
(2000). As claimant has not demonstrated any reversible error in the administrative
law judge's finding that employer rebutted the Section 20(a) presumption, we affirm
this finding. Coffey v. Marine Terminals Corp., 34 BRBS 85 (2000).
We also affirm the administrative law judge's crediting of Dr. Katz's opinion
over that of Dr. Matthews, based on the record as a whole, as the administrative
law judge is entitled to determine the relative weight to be accorded the
physicians' opinions. See generally Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 372 U.S. 954 (1963). The administrative law judge rationally accorded
greater weight to Dr. Katz's opinion as he accounted for the post-retirement
progression of claimant's hearing loss, whereas Dr. Matthews did not. See
generally Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 26 BRBS 151(CRT) (1993). The
administrative law judge's finding that claimant failed to establish the work-relatedness of his hearing loss
therefore is affirmed.[1] Coffey, 34 BRBS 85.
Accordingly, the administrative law judge's Decision and Order and Order of
Denial of Motion for Reconsideration are affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)Claimant's argument regarding the responsible employer is
misplaced. No issue was presented as to whether employer was the potentially
responsible employer.
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NOTE: This is an UNPUBLISHED LHCA Document.
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