BRB No. 97-1431
LUIS HERNANDEZ )
)
Claimant-Respondent ) DATE ISSUED: 07/09/1998
)
v. )
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UNIVERSAL MARITIME SERVICE )
CORPORATION )
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and )
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SIGNAL MUTUAL INDEMNITY )
ASSOCIATION )
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Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order of Paul H. Teitler, Administrative Law
Judge, United States Department of Labor.
Samuel A. Denberg (Baker, Garber, Duffy & Pedersen), Hoboken, New
Jersey, for claimant.
Christopher J. Field (Gallagher & Field), Jersey City, New Jersey, for
employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (95-LHC-2455) of Administrative Law
Judge Paul H. Teitler awarding benefits 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 top-loader operator who worked exclusively for employer from
December 15, 1991, until his retirement on October 11, 1994, sought benefits under
the Act for a noise-induced hearing loss based on an audiogram administered on
October 11, 1994, by Dr. Matthews, which revealed a 42 percent binaural impairment.
Claimant underwent a subsequent hearing evaluation by Dr. Katz on July 31, 1995,
which revealed a 30.3 percent binaural impairment.
In his Decision and Order, the administrative law judge initially determined
that claimant was entitled to invocation of the Section 20(a), 33 U.S.C.
§920(a), presumption and that employer could not establish rebuttal thereof.
The administrative law judge therefore concluded that claimant's hearing impairment
is work-related. The administrative law judge then averaged the results of the two
audiograms of record, and determined that claimant is entitled to benefits pursuant
to Section 8(c)(13), 33 U.S.C. §908(c)(13), based on his 36.15 percent hearing
impairment. Lastly, the administrative law judge denied employer's request for
Section 8(f), 33 U.S.C. §908(f), relief.
On appeal, employer challenges the administrative law judge's causation
finding and subsequent calculation of the percent of hearing impairment sustained
by claimant. Claimant responds, urging affirmance of the administrative law
judge's decision.
Where claimant has established his prima facie case, i.e., shown
that he has sustained a harm and that an accident occurred or working conditions
existed which could have caused the harm, claimant is entitled to the Section 20(a)
presumption linking that harm to his employment. See, e.g., Quinones v. H.B.
Zachery, Inc., 32 BRBS 6 (1998). Once the Section 20(a) presumption is
invoked, the burden shifts to employer to rebut the presumption with substantial
countervailing evidence that claimant's condition was not caused or aggravated by
his employment. Bridier v. Alabama Dry Dock & Shipbuilding Co., 29 BRBS 84
(1995). 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. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir.), cert. denied, 429 U.S. 820 (1976); see generally Holmes v.
Universal Maritime Service Corp., 29 BRBS 18 (1995) (Decision on Recon.).
Employer argues that the administrative law judge erred in determining that
it has not established rebuttal of the Section 20(a) presumption. Employer first
asserts that the administrative law judge erred by not assessing its rebuttal
evidence in an independent manner. Specifically, employer argues that the
administrative law judge prematurely weighed the entirety of the relevant evidence
regarding causation without first determining whether employer's evidence is, in
and of itself, sufficient to establish rebuttal of the Section 20(a) presumption.
Employer additionally avers that the administrative law judge held it to an
excessively high burden by requiring that it produce overly specific evidence to
rebut the Section 20(a) presumption.
In the instant case, employer submitted the noise surveys and testimony of its
noise engineer, Thomas Bragg, the medical report and testimony of Dr. Alvin Katz,
and the testimony of Carmine Pizzariello, employer's general manager, in an effort
to rebut the Section 20(a) presumption. Contrary to employer's contentions, the
administrative law judge independently analyzed employer's evidence under the
appropriate rebuttal standard. See Decision and Order at 6-7.
Consequently, the administrative law judge did not weigh the entirety of the
medical evidence regarding causation, but rather determined that employer's
specific evidence is insufficient to establish rebuttal of the Section 20(a)
presumption.
In particular, the administrative law judge found that the noise survey which,
according to Mr. Bragg, demonstrates that claimant was exposed to noise levels of
less than 90 decibels per eight hour day, is insufficient to meet employer's burden
because it is only indicative of the level of claimant's noise exposure during the
six month period preceding the date of the study, November 9, 1992, and thus, does
not address the extent of claimant's exposure during the entire period of his
employment, from December 15, 1991 through October 11, 1994. Additionally, the
administrative law judge found that Mr. Bragg's underlying data is flawed since he
could not state with certainty that his test included the specific top-loader used
by claimant, which the administrative law judge found is significant because of Mr.
Bragg's further testimony that the noise emissions from two identical machines can
vary and that the condition of a top-loader, and thus, the noise emissions, could
change from day to day.
The administrative law judge next determined that the testimony of Dr. Katz
is likewise insufficient to rebut the Section 20(a) presumption, since his opinion
that claimant's audiogram was consistent with hearing loss caused by aging, and
not due to noise exposure, EX 9 at 47-50, is predominantly based on the
noise surveys, EX 9 at 60-62. This finding is rational. See Hampton v.
Bethlehem Steel Corp., 24 BRBS 141 (1990)(presumption not rebutted by opinion
that lacks a proper foundation). Lastly, the administrative law judge rationally
determined that Mr. Pizzariello's statements that a top-loader operator can use the
Citizen Band radio while the engine is running but that the engine must be shut off
in order to speak to someone on the ground are not persuasive in showing that
claimant was not exposed to deleterious noise while operating his top-loader.
Accordingly, as the administrative law judge properly found that employer did not
rebut the Section 20(a) presumption, we affirm his finding that claimant's hearing
impairment therefore is work-related.
Employer also argues that the administrative law judge's "Solomon-like"
averaging of the two audiograms of record to arrive at the percent of impairment
to be awarded is in error. Employer maintains that the audiogram administered by
Dr. Katz should determine the percentage of claimant's hearing impairment as it
was a more complete test.
As the administrative law judge correctly noted, the record contains two
audiograms. The first, administered by Dr. Matthews on October 11, 1994, reveals
a 42 percent hearing impairment, while the second administered by Dr. Katz on July
31, 1995, reveals a 30.3 percent hearing impairment. The administrative law judge
noted that both audiograms were administered by a Board-certified audiologist and
analyzed by a physician. Noting that there are subjective elements to both
audiograms that prevent either from being completely accurate, the administrative
law judge found that they are entitled to equal weight, and thus, rationally
determined claimant's binaural impairment of 36.15 percent by averaging the results
of these audiograms. As employer has failed to establish that the administrative
law judge's decision to average the results of the two audiograms of record is
irrational based on his finding that they are equally credible, it is affirmed.[1] See generally Norwood v. Ingalls Shipbuilding,
Inc., 26 BRBS 66 (1992)(Stage, C.J., dissenting on other grounds).
Accordingly, the administrative law judge's Decision and Order awarding
benefits 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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Footnotes.
1)Employer argues that the audiogram administered by Dr. Matthews is less reliable than that
administered by Dr. Katz, as Dr. Matthews did not perform a speech discrimination test. Nonetheless Dr. Matthews
specifically stated that the audiogram administered at his office is reliable, Dep. at 12, and the administrative law judge was
not required to credit Dr. Katz's opinion to the contrary. EX 9 at 39-41.
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NOTE: This is an UNPUBLISHED LHCA Document.
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