BRB No. 01-0729
RICHARD NUNNALLY )
)
Claimant-Respondent )
)
v. )
)
VIRGINIA INTERNATIONAL ) DATE ISSUED: 06/10/2002
TERMINALS )
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Self-Insured )
Employer-Petitioner ) DECISION AND ORDER
Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative
Law Judge, United States Department of Labor.
Gregory E. Camden (Montagna, Breit, Klein, Camden, L.L.P.), for
claimant.
R. John Barrett and Brian L. Sykes (Vandeventer Black, L.L.P.), for
self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (2000-LHC-1651) of Administrative Law
Judge Daniel A. Sarno, Jr., 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 has worked as a checker at employer's Newport News Marine Terminal
for eighteen years. He underwent audiometric testing on November 3, 1999,
conducted by Dr. Queen, which revealed a 2.5 percent binaural noise-induced hearing
loss. Cl. Ex. 2. Claimant also underwent audiometric testing by Dr. Hecker, an
audiologist, on May 19, 2000, which revealed a bilateral, symmetrical, high
frequency hearing loss pattern that was typical for noise-induced hearing loss, but
did not reach a ratable impairment. Cl. Ex. 1. Both Drs. Queen and Hecker
recommended that claimant undergo annual hearing examinations, use protective
devices while working with noise levels above 85 dB, and use hearing aids for the
remainder of his life. Cl. Exs. 1, 2. Claimant sought benefits under the Act.
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 found that the audiogram
administered by Dr. Queen is entitled to greater weight than that administered by
Dr. Hecker. Thus, the administrative law judge found that claimant is entitled to
benefits pursuant to Section 8(c)(13), 33 U.S.C. §908(c)(13), for a 2.5
percent binaural impairment. The administrative law judge also awarded claimant
medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907.
On appeal, employer challenges the administrative law judge's finding of
causation with regard to claimant's hearing impairment. In addition, employer
contends that the administrative law judge erred in according Dr. Queen's opinion
determinative weight and in awarding medical benefits. Claimant responds, urging
affirmance.
In the instant case, it is uncontested that claimant suffered a "harm,"
i.e., a hearing impairment. In his decision, the administrative law judge
found that claimant credibly testified that his work environment is extremely
noisy. Claimant testified that containers weighing between four and thirty tons are
repeatedly stacked onto one another, or dropped onto the blacktop about fifteen
feet from claimant. H. Tr. at 13-14, 22. He also testified that noisy machinery,
powered by diesel engines, constantly surround him at work. H. Tr. at 24, 33. As
claimant's testimony of exposure to injurious noise is sufficient to establish a
prima facie case that working conditions existed that could have caused the
hearing loss, we affirm the administrative law judge's finding that the Section
20(a) presumption that claimant's hearing loss is work-related is invoked. See
Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT) (9th Cir. 1998); Jones Stevedoring
Co. v. Director, OWCP [Taylor], 133 F.3d 683, 31 BRBS 178(CRT) (9th Cir. 1997); Damiano v. Global
Terminal & Container Service, 32 BRBS 261 (1998).
Once the Section 20(a) presumption is invoked, the burden shifts to employer
to rebut the presumption with substantial evidence that claimant's condition was
not caused, contributed to or aggravated by his employment. See Universal Maritime
Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); Davison v. Bender Shipbuilding
& Repair Co., Inc., 30 BRBS 45, 46-47 (1996). We reject
employer's contention that the administrative law judge erred in finding that
employer failed to produce substantial evidence that claimant's hearing loss was
not caused by his employment. In support of its contention, employer offered the
testimony and report of Thomas Bragg, an acoustical consultant, who performed a
noise survey at employer's terminal in the summer of 2000. Emp. Exs. 2, 3; Cl. Ex.
6. Mr. Bragg concluded that claimant's position as a checker did not violate the
noise exposure standards mandated by the Occupational Health and Safety
Administration (OSHA). Emp. Exs. 2, 3. The administrative law judge found that
this noise survey was irrelevant for the purpose of determining the extent of
claimant's exposure to noise throughout his career at employer's terminal.
Moreover, the administrative law judge found that Mr. Bragg admitted that
compliance with the OSHA regulations will not protect a worker from hearing loss.
We affirm the administrative law judge's finding that conformance at the
terminal in the summer of 2000 with noise level standards established by OSHA is
insufficient to rebut the Section 20(a) presumption in this case, as such evidence
cannot demonstrate the absence of a work-related injury incurred over the entire
course of claimant's employment. See Everson v. Stevedoring Services of
America, 33 BRBS 149 (1999); Damiano, 32 BRBS 261. Moreover, as the
administrative law judge correctly found, employer's mere assertions that
claimant's hearing loss could have been caused by his age or diabetic condition are
not sufficient to establish rebuttal, and the two physicians of record testified
that claimant's hearing loss has a pattern that is typically seen as noise-induced,
rather than the result of advancing age or diabetes. See Williams v. Chevron
U.S.A., Inc., 12 BRBS 95 (1980). Consequently, we affirm the administrative
law judge's finding that employer failed to present substantial evidence that
claimant's hearing loss is not work-related as it is supported by substantial
evidence, and we thus affirm the administrative law judge's finding that claimant's
hearing loss is work-related.[1] See Everson, 33
BRBS 149.
We also reject employer's contention that the administrative law judge erred
in relying on the audiometric test performed by Dr. Queen to establish the extent
of claimant's hearing impairment. In adjudicating a claim, it is well-established
that an administrative law judge is entitled to evaluate the credibility of all
witnesses, including doctors, and is not bound to accept the opinion or theory of
any particular medical examiner; rather, the administrative law judge may draw his
own inferences and conclusions from the evidence. See Calbeck v. Strachan Shipping Co.,
306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300
F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961). Moreover, the
administrative law judge need not credit the lowest audiometric result. See Norwood v. Ingalls Shipbuilding, 26
BRBS 66 (1992)(Stage, C.J., dissenting on other grounds). The administrative law judge credited the results of the test
administered by Dr. Queen, as he is a licensed medical doctor. While stating that Dr. Hecker is a thoroughly qualified
doctor of audiology, the administrative law judge noted that the two exams were consistent in that they revealed a noise-induced hearing loss in the high frequency range, and the results are within a range of statistical similarity. Contrary to
employer's contention on appeal, Dr. Queen did not testify that Dr. Hecker's results as a whole are more reliable, but rather
that Dr. Hecker's equipment was better suited for testing claimant's hearing in the 125 and 250 frequencies, which
accounted for the discrepancy in results at that range. Cl. Ex. 4 at 31-32. Those frequencies, however, are not used in
calculating claimant's hearing loss under the American Medical Association Guides to the Evaluation of Permanent
Impairment. See Guides at p. 225 (4th ed. 1995). Moreover, Dr. Queen stated that his equipment is "perfectly
adequate" to provide an assessment on this case. Cl. Ex. 4 at 32. As employer has raised no reversible error on appeal,[2] and as the administrative law judge's finding is supported by substantial evidence,
we affirm the administrative law judge's finding that claimant is entitled to benefits for a 2.5 percent binaural impairment.
Lastly, we reject employer's contention that claimant has no ratable hearing loss and thus is not entitled to an award
of medical benefits, as we affirm the administrative law judge's finding that claimant has a 2.5 percent binaural impairment.
Moreover, it is well-settled that a claimant is eligible for medical benefits under Section 7
where he has a hearing loss even though it results in no measurable impairment
under the American Medical Association Guides to the Evaluation of Permanent
Impairment.[3] Ingalls Shipbuilding, Inc.
v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993);
Davison, 30 BRBS 45. As employer does not otherwise challenge the award
of medical benefits, we affirm the administrative law judge's finding that claimant
is entitled to necessary medical treatment for his work-related hearing loss.
Accordingly, the decision of the administrative law judge awarding permanent
partial disability benefits pursuant to Section 8(c)(13)(B), 33 U.S.C.
§908(c)(13)(B), and medical benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) 1As we affirm the administrative law judge's finding that
employer did not establish rebuttal of the Section 20(a) presumption, we need not
address employer's contentions regarding weighing the evidence as a whole.
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2) 2The administrative law judge also relied on the results
of the audiogram administered by Dr. Queen because Dr. Queen is claimant's treating
physician. This finding is not borne out by the record, which reveals that Dr.
Queen only saw claimant one time for evaluation purposes. See Cl. Exs. 2,
4. Any error is harmless, however, as the administrative law judge provided valid
reasons for crediting Dr. Queen's opinion.
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3) 3Moreover, even if claimant had no ratable impairment,
employer's reliance on Metro-North Commuter R.R. v. Buckley, 521 U.S. 424
(1997), is misplaced. In Buckley, a railroad employee who had been exposed
to asbestos sought to recover, under the Federal Employers' Liability Act, 45
U.S.C. §51 et seq. (FELA), medical monitoring costs he may incur as a
result of his exposure. Because he had not been diagnosed with any asbestos-related disease and was not experiencing any symptoms, the Supreme Court held that
he was not entitled to medical monitoring. Buckley, 521 U.S. at 427, 444.
First, Buckley arose under the FELA and not under the Longshore Act.
Moreover, Dr. Hecker, whose audiogram measured an unratable impairment, stated
claimant needs hearing aids and annual hearing examinations. Thus, Buckley
is inapposite.
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NOTE: This is an UNPUBLISHED LHCA Document.
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