BRB No. 97-1397

DAVID HAYSLETT                          )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   07/06/1998 

                                        )
     v.                                 )
                                        )
NORFOLK SHIPBUILDING AND                )    
DRYDOCK CORPORATION                     )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order Granting Permanent Partial Disability
     Benefits of Richard K. Malamphy, Administrative Law Judge, United States
     Department of Labor.

     Gregory E. Camden and Matthew H. Kraft (Rutter & Montagna, L.L.P.),
     Norfolk, Virginia, for claimant.

     Bradford C. Jacob (Taylor & Walker, P.C.), Norfolk, Virginia, for self-
     insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order Granting Permanent Partial Disability
Benefits (96-LHC-1235) of Administrative Law Judge Richard K. Malamphy 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 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 has worked for employer for over 45 years as a machinist and sought
benefits under the Act for a work-related hearing loss.   In his
Decision and Order, the administrative law judge, after crediting claimant's
testimony that he has been exposed to loud noise during the course of his
employment with employer, found invocation of the Section 20(a), 33 U.S.C.
§920(a), presumption established, and then determined that employer failed to
rebut that presumption.  Relying on the most recent audiogram of record, the
administrative law judge thereafter awarded claimant permanent partial disability
compensation for a 4.1 percent binaural hearing impairment pursuant to Section
8(c)(13)(B) of the Act, 33 U.S.C. §908(c)(13)(B).

     On appeal, employer challenges the administrative law judge's findings with
respect to causation, as well as to the nature and extent of claimant's hearing
impairment.  Claimant responds, urging affirmance of the administrative law judge's
decision; specifically, claimant argues that employer failed to raise the issues
of the nature and extent of claimant's disability before the administrative law
judge, and therefore, it cannot raise these issues for the first time on appeal.

     Employer initially challenges the administrative law judge's finding that
claimant's hearing loss is related to his employment with employer.  Employer
specifically argues that claimant failed to establish his prima facie case;
alternatively, employer asserts that it has met its burden of establishing the lack
of a causal nexus between claimant's hearing loss and his employment with employer. 
We disagree.

       In order to be entitled to the benefit of the Section 20(a) presumption,
claimant must establish a prima facie case by showing that he suffered a
harm and that either a work-related accident occurred or that working conditions
existed which could have caused or aggravated the harm. See Stevens v. Tacoma
Boatbuilding Co., 23 BRBS 191 (1990); Perry v. Carolina Shipping Co.,
20 BRBS 90 (1987).  Once claimant establishes his prima facie case, he is
entitled to invocation of the Section 20(a) presumption linking his harm to his
employment. See Stevens, 23 BRBS at 191.  Upon invocation of the
presumption, the burden shifts to employer to rebut the presumption with
substantial evidence that claimant's condition was not caused or aggravated by his
employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir.), cert. denied, 429 U.S. 820 (1976).  It is employer's burden on
rebuttal to present specific and comprehensive evidence sufficient to sever the
causal connection between the injury and the employment; the unequivocal testimony
of a physician that no relationship exists between the injury and a claimant's
employment is sufficient to rebut the presumption. See Phillips v. Newport News
Shipbuilding & Dry Dock Co., 22 BRBS 94 (1988).  If employer establishes
rebuttal of the presumption, the administrative law judge must weigh all of the
evidence contained in the record and resolve the causation issue based on the
record as a whole. See Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985);
see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43
(CRT)(1994).

     In the instant case, Dr. Shroyer opined that claimant suffers from hearing
loss secondary to noise exposure as well as the aging process. See Cl. Ex.
2.  Moreover, the record contains audiograms which show the percentage of
claimant's hearing loss. See Cl. Ex. 4; Emp. Ex. 3.  Thus, claimant has
established the existence of a harm, specifically a documented hearing loss.  The
administrative law judge credited claimant's testimony, which was uncontradicted,
that he has been exposed to loud noise while working in employer's machine shop.
See Tr. at 16-17, 24. 38.  This testimony is sufficient to establish that
the noise to which claimant was exposed was sufficient to constitute injurious
exposure.   See generally Meadry v. International Paper Co., 30 BRBS 160
(1996).  Accordingly, as claimant has established the two elements of his prima
facie case, we affirm the administrative law judge's determination that the
Section 20(a) presumption applies to link claimant's loss of hearing to his
employment. See Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981).

     Next, the administrative law judge found that employer submitted no evidence
sufficient to rebut the Section 20(a) presumption; in rendering this finding, the
administrative law judge rejected employer's theories that claimant's hearing loss
may be the result of his exposure to noise during his years of military service or
while hunting. We reject employer's contention that the administrative law judge's
finding in this regard is in error, as the Section 20(a) presumption is not
rebutted by mere hypothetical possibilities, or by suggesting an alternate way that
claimant's injury might have occurred.  See Sinclair v. United Food & Commercial
Workers, 23 BRBS 148 (1989).  In the instant case, employer has presented no
medical evidence that claimant's hearing loss is unrelated to his employment; we
therefore affirm the administrative law judge's finding that claimant's hearing
loss is causally related to his employment. See Manship v. Norfolk & Western
Railway Co., 30 BRBS 175 (1996); Bass v. Broadway Maintenance, 28 BRBS
11 (1994); see generally ITO Corp. v. Director, OWCP, 883 F.2d 422, 22 BRBS
126 (CRT)(5th Cir. 1989).

     Employer next challenges the administrative law judge's findings regarding the
nature and extent of claimant's hearing loss.  Specifically, employer asserts that
claimant's condition is not permanent since claimant has not reached maximum
medical improvement; moreover, employer argues that since the audiological test
results credited by the administrative law judge were not based on Occupational
Safety and Health Administration (OSHA) age correction tables, the administrative
law judge's impairment finding must be reversed.  As claimant correctly asserts in
his response brief, however, these issues were not raised before the administrative
law judge and thus cannot be raised for the first time on appeal. See Boyd v.
Ceres Terminals, 30 BRBS 218 (1997); Maples v. Texports Stevedores Co.,
23 BRBS 303 (1990), aff'd sub nom. Texports Stevedores Co. v. Director,
OWCP, 931 F.2d 331, 28 BRBS 1 (CRT)(5th Cir. 1991).  We note, however, that
these contentions are without merit.  In the instant case, the record contains
audiograms which show the percentage of claimant's hearing impairment; as the date
a physician assesses claimant with a disability rating will suffice to determine
the date of permanency, we reject employer's argument to the contrary. See
Sketoe v. Dolphin Titan Int'l, 28 BRBS 212 (1994)(Smith, J., dissenting on
other grounds).  Moreover, while all hearing loss determinations must be either
initially rendered or later converted under the standards set forth in the American
Medical Association Guides to the Evaluation of Permanent Impairment, see
Fucci v. General Dynamics Corp., 23 BRBS 161 (1990)(Brown, J., dissenting on
other grounds), there is no requirement that a hearing loss determination be based
on OSHA age correction tables.  Accordingly, employer's contention in this regard
is also rejected.  Therefore, the administrative law judge's award to claimant of
permanent partial disability compensation for a 4.1 percent binaural hearing
impairment pursuant to Section 8(c)(13)(B) is affirmed.

     Accordingly, the Decision and Order Granting Permanent Partial Disability
Benefits of the administrative law judge is affirmed.

     SO ORDERED.  



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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