BRB No. 00-0951
ELLIS ADAMS )
)
Claimant-Petitioner )
)
v. )
)
AVONDALE INDUSTRIES, ) DATE ISSUED: 06/20/2001
INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order-Denying Benefits of Richard D. Mills,
Administrative Law Judge, United States Department of Labor.
Frank A. Bruno, New Orleans, Louisiana, for claimant.
William C. Cruse (Blue Williams, L.L.P.), Metairie, Louisiana, for
employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Claimant appeals the Decision and Order-Denying Benefits (98-LHC-2811) of
Administrative Law Judge Richard D. Mills 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 worked as a tool clerk for employer in 1945. Following a period of
military service, claimant returned to work for employer as a clerk in the accounts
payable department in 1952-1953, for a period of six to eight months. He left the
shipyard at that time and has not worked in any other covered employment. Claimant
underwent audiometric testing by Mr. Bode in January 1997, which revealed a 21.9
percent binaural impairment. Mr. Bode opined that this impairment is noise-induced. Following this examination, claimant sought benefits under the Act.
Claimant also underwent testing by Dr. Seidemann on November 9, 1998, which
revealed a 31.3 percent binaural impairment. Dr. Seidemann opined that claimant's
hearing loss is not noise-induced.[1]
In his decision, the administrative law judge found that claimant worked for
employer for only two weeks in 1945 in covered employment, and that the period of
time claimant worked as a clerk in 1952-1953 did not constitute covered employment.
In addition, the administrative law judge found that the evidence is sufficient to
invoke the Section 20(a), 33 U.S.C. §920(a), presumption that claimant's
hearing loss is related to his employment at the shipyard, but that employer
established rebuttal of the presumption. Then, based on the evidence as a whole,
the administrative law judge found that claimant's hearing loss is not work-related. Therefore, the administrative law judge denied benefits.
Claimant contends on appeal that the administrative law judge erred in finding
that claimant's work in 1952-1953 is not covered under the Act. Claimant further
contends that the administrative law judge erred in finding that his hearing loss
is not work-related based on the opinion of Dr. Seidemann. Employer responds,
urging affirmance of the administrative law judge's decision.
We first address the causation issue, as it is potentially dispositive of the
claim for compensation. Claimant contends the administrative law judge erred in
finding that the evidence is insufficient to establish that his hearing loss is
causally related to his work with employer. Once, as here, the Section 20(a)
presumption is invoked, employer may rebut it by producing substantial evidence
that claimant's employment did not cause, accelerate, aggravate or contribute to
his injury. 33 U.S.C. §920(a). Conoco, Inc. v. Director, OWCP
[Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); American Grain
Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999),
cert. denied, 120 S.Ct. 1239 (2000); Swinton v. J. Frank Kelly, Inc.,
554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).
If such evidence is produced, the presumption no longer applies, and the
administrative law judge must weigh the competing evidence as a whole, with
claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256,
31 BRBS 119(CRT) (4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28
BRBS 43(CRT) (1994). In the present case, the administrative law judge found that
Dr. Seidemann's opinion is sufficient to establish rebuttal of the Section 20(a)
presumption, and claimant does not challenge this finding.
The administrative law judge found that the evidence, weighed as a whole, does
not establish that claimant's hearing loss is work-related. The administrative law
judge found that Dr. Seidemann's opinion is more persuasive than the opinion of
Mr. Bode. Dr. Seidemann stated that claimant's hearing loss is not noise-induced.
Tr. at 127. He gave several reasons for this opinion. He testified that noise-induced hearing loss results in a pattern on a audiogram that has a notching shape,
sometimes described as a backwards checkmark. Id. at 129. That pattern was
not on either of claimant's valid audiograms. Id. Dr. Seidemann also opined
that claimant's hearing loss is too great in the higher frequencies for the loss
to be noise-induced. Id. at 129-130. Lastly, Dr. Seidemann opined that
claimant's hearing loss is not noise-induced given the lack of symmetry of loss
between the two ears. Id. at 160. In rendering his opinion that claimant's
hearing loss is not noise-induced, Dr. Seidemann emphasized that no source of noise
occupational, recreational or military is the cause of claimant's hearing
loss. Id. at 134, 159.
In giving less weight to Mr. Bode's opinion that claimant's hearing loss is
noise-induced, the administrative law judge found that Mr. Bode did not adequately
explain the fact that the pattern on the audiograms did not match one expected from
noise-induced hearing loss, nor was he persuaded by Mr. Bode's statement that very
brief, intense, exposure could cause hearing damage in view of Dr. Seidemann's
opinion to the contrary. As claimant has identified no errors in the administrative
law judge's weighing of the medical evidence, and as Dr. Seidemann's opinion
supports the administrative law judge's finding that claimant's hearing loss is not
work-related, we affirm the denial of benefits as it is rational and supported by
substantial evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th
Cir. 1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961).
In view of our affirmance of the administrative law judge's finding that
claimant's hearing loss is not work-related, we need not address claimant's
contentions of error regarding his employment with employer in 1952-1953. As Dr.
Seidemann stated that no source of noise caused claimant's hearing loss, an
additional six to eight months of covered employment, assuming, arguendo,
error on the administrative law judge's part,[2]
would not change the result herein.
Accordingly, the administrative law judge's Decision and Order-Denying
Benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) 1Claimant also was tested at a Beltone hearing aid center
by Mr. Stinson. Cl. Ex. 2. The parties agreed that this hearing test was not
valid under the Act's regulations. Tr. at 8-10.
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2) 2We express no opinion on the propriety of the
administrative law judge's findings in this regard.
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NOTE: This is an UNPUBLISHED LHCA Document.
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