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                                 BRB No. 98-1283


JOSEPH WASHINGTON                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
McDERMOTT, INCORPORATED                 )    DATE ISSUED:   05/28/1999    
                                             
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order Awarding Benefits of Larry W. Price,
     Administrative Law Judge, United States Department of Labor.

     Dennis R. Stevens (Gibbens, Blackwell & Stevens), New Iberia, Louisiana,
     for employer.

     Before:  SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order Awarding Benefits (97-LHC-1963 ) of
Administrative Law Judge Larry W. Price 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 for employer in various positions from the early 1960's until
he was laid off on August 7, 1986.   He underwent audiometric testing on July 3,
1996, which revealed a 75.6 percent binaural impairment, consistent with noise-induced hearing loss.  Claimant filed a claim for benefits on July 12, 1996, based
on this exam, and employer controverted the claim on July 31, 1996.
     The administrative law judge found that the evidence establishes that claimant
has a 75.6 percent binaural, noise-induced hearing loss.  He found that claimant
was first given a report and accompanying audiogram regarding his noise-induced
hearing loss on July 3, 1996, and thus his claim was timely filed.  The
administrative law judge also found that as it is not disputed that claimant spent
approximately five percent of his work time performing "load-outs" on barges, an
indisputably maritime activity, he is a covered employee under the Act.  33 U.S.C.
§902(3).  The administrative law judge also invoked the Section 20(a), 33
U.S.C. §920(a), presumption that claimant's hearing loss was caused, at least
in part, by noise exposure during the performance of his maritime work, and found
that there was insufficient rebuttal evidence.  Therefore, the administrative law
judge concluded that claimant's hearing loss is work-related.  Finally, the
administrative law judge awarded claimant interest accruing as of March 8, 1980,
as this was the first date employer knew through in-house audiometric testing that
claimant had a noise-induced hearing loss.

     On appeal, employer contends that the administrative law judge erred in
finding that the claim was timely filed, as there is evidence that claimant had
previous knowledge of his noise-induced hearing loss.  In addition, employer
contends that the administrative law judge erred in finding that claimant was a
covered employee under the Act as his maritime activities were sporadic and
intermittent.  Employer further contends that the amount of time claimant spent in
the load-out process, as well as the amount of actual noise exposure during the
load-out process itself, was insufficient to cause claimant's hearing loss. 
Employer lastly contends that the administrative law judge erred in awarding
interest from March 8, 1980, as the parties stipulated that employer was not
notified of the claim until August 27, 1996.  Claimant has not responded to this
appeal. 

     Initially, employer contends that claimant had previous knowledge of a noise-induced hearing loss, as well as received reports and audiograms of previous
hearing tests.  Thus, employer contends that the claim filed in 1996 was not
timely.  The statue of limitations periods in hearing loss cases do not begin to
run until the employee is given a copy of the audiogram and the accompanying
report.  33 U.S.C. §908(c)(13)(D); Vaughn v. Ingalls Shipbuilding,
Inc., 28 BRBS 129 (1994)(en banc).

     In the instant case, the administrative law judge reviewed the evidence and
found that the claim was timely filed.  He noted that while claimant testified that
he received two hearing tests while employed by Cabot Corporation, subsequent to
his employment with McDermott, Incorporated, and that he was given a "diagram,"
neither the audiogram nor any accompanying report was offered at the hearing. H.
Tr. at 102.  Thus, the administrative law judge concluded he could not determine
whether the tests met the guidelines, the qualifications of the hearing test
administrator, what the "diagram" showed, what the accompanying report, if any,
showed, or exactly what claimant received.   Decision and Order at 5.  Therefore,
based on the evidence in the record, the administrative law judge concluded that
claimant did not receive an audiogram with the accompanying report prior to July
3, 1996, and he thereafter filed a timely claim.  We  affirm the administrative law
judge's finding that the instant claim was timely filed. See Vaughn, 28 BRBS
at 131. 

     Employer next contends that the administrative law judge erred in finding that
claimant is  a covered employee under the Act, as his activities loading barges
were sporadic, incidental, and intermittent in nature, and thus insufficient to
establish status under the Act.  33 U.S.C. §902(3).  Generally, an employee
satisfies the "status" requirement if he is engaged in work which is integral to
the loading, unloading, building, or repairing of vessels.  See 33 U.S.C.
§902(3); Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96
(CRT)(1989).  To satisfy this requirement, he must "spend at least some of his time
in indisputably longshoring operations." Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 6 BRBS 150 (1977).  The load-out process is an
indisputably longshoring operation, and a claimant's regular participation in load-out operations on an as-needed basis is sufficient to confer status under the Act.
Zeringue v. McDermott, Inc., 32 BRBS 275 (1998); Thornton v. Brown &
Root, Inc., 23 BRBS 75 (1989).  Although an employee is covered if some portion
of his activities constitutes covered employment, those activities must be more
than episodic, momentary, or incidental to non-maritime work. Boudloche v.
Howard Trucking Co., 632 F.3d 1346, 12 BRBS 732 (5th Cir. 1980), cert.
denied, 452 U.S. 915 (1981); Coleman v. Atlantic Container Service,
Inc., 22 BRBS 309 (1989), aff'd, 904 F.2d 611, 23 BRBS 101 (CRT)(11th
Cir. 1990).  The United States Court of Appeals for the First Circuit has held that
work, to be considered "episodic," must be "discretionary or extraordinary" as
opposed to that which is a "regular portion of the overall tasks to which
[claimant] could have been assigned." Levins v. Benefits Review Board, 724
F.2d 4, 8, 16 BRBS 24, 33 (CRT)(1st Cir. 1984).

     In Zeringue, the Board affirmed the administrative law judge's finding
that claimant met the status requirement,  where the evidence established that the
claimant spent approximately 6.84 percent of his time performing load-out
operations, even though he did not participate in every load-out and the load-outs
occurred infrequently, because claimant's participation in the load-outs was more
than episodic, momentary, or incidental to non-maritime work. See Zeringue,
32 BRBS at 277.  It is undisputed in the instant case that claimant spent 5.1
percent of his time between the years 1974 and 1986 performing load-out functions
in the west yard.  For the reasons stated in Zeringue, we affirm the
administrative law judge's finding that claimant is a covered employee under the
Act.[1] 
     Next, employer contends that the administrative law judge erred in finding
that claimant's hearing loss was work-related as the amount of time claimant spent
in the load-out process, as well as the noise exposure during the load-out process
itself, was insufficient to cause claimant's hearing loss.  We disagree.  Section
20(a) provides claimant with a presumption that his disabling condition is causally
related to his employment. See Kubin v. Pro-Football, Inc., 29 BRBS 117
(1995).  The administrative law judge credited claimant's testimony that while
performing load-outs, he was exposed to noise from side booms, cranes, welding
machines and drag lines and it is undisputed that claimant's hearing loss is
characteristic of noise-induced hearing loss.  In addition, the administrative law
judge found that employer offered no evidence of the actual noise level on the
barges during load-out functions.  Thus, we hold that the administrative law judge
properly found that the Section 20(a) presumption was invoked.  See generally
Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 12 BRBS 975 (5th Cir.),
cert. denied, 454 U.S. 1080 (1981);[2]
Meardry v. International Paper Co., 30 BRBS 160, 163 (1996).

     Once the Section 20(a) presumption is invoked, the burden shifts to employer
to rebut it with substantial evidence that claimant's condition was not caused or
aggravated by the employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d
1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).   When
employer produces such substantial evidence, the presumption drops out of the case,
and the administrative law judge must weigh all of the evidence relevant to the
causation issue, and render a decision supported by the record. Universal
Maritime Corp. v Moore, 126 F.3d 256, 31 BRBS 119 (CRT)(4th Cir. 1997);
MacDonald v. Trailer Marine Transport Corp., 18 BRBS 259 (1986), aff'd
mem. sub nom. Trailer Marine Transport Corp. v. Benefits Review Board, 819 F.2d
1148 (11th Cir. 1987).

      The administrative law judge found that employer did not offer evidence of
the actual noise level on the barges during load-out functions, and concluded that
employer has not provided substantial evidence to rebut the Section 20(a)
presumption.  The administrative law judge also found that if the presumption had
been rebutted, claimant's testimony regarding exposure to side booms, cranes,
welding machines and drag lines during load-outs is credible and entitled to
determinative weight.  He found that these noises were sufficient to constitute
injurious exposure. See generally Casey v. Georgetown University Medical
Center, 31 BRBS 147 (1997).  We affirm the administrative law judge's finding
that claimant's hearing loss is causally related to his longshore employment as
supported by substantial evidence. See generally John W. McGrath Corp v.
Hughes, 289 F.2d 403 (2d Cir. 1961).

     Lastly, employer contends that the administrative law judge erred in awarding
interest from March 8, 1980, as the parties stipulated that the date of the injury
was July 3, 1996.  The United States Court of Appeals for the Fifth Circuit has
held that pre-judgment interest accrues from the date benefits are due under
Section 14, 33 U.S.C. §914, and not from the date of injury. See
Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150 (CRT)(5th
Cir. 1997); see also Renfroe v. Ingalls Shipbuilding, Inc., 30 BRBS 101, 104
(1996)(en banc).  An employee's compensation becomes due, if the claim is
not controverted, fourteen days after employer receives notice of the injury or
otherwise has knowledge of it, even absent an award.  33 U.S.C. §914(a), (b);
see also Mowl v. Ingalls Shipbuilding, Inc., 32 BRBS 51 (1998)( knowledge
of injury' in Section 14(b) means knowledge of the cumulative compensable hearing
loss).

     In the instant case, the administrative law judge awarded interest as of March
8, 1980, as employer was aware that claimant had a "major" hearing loss that was
noise-induced as of that date, based on in-house audiometric testing.  However,
since at that time the full extent of claimant's cumulative hearing loss was
unknown, and thus, benefits were not yet due under Section 14(b), see Mowl,
32 BRBS at 54, interest cannot accrue from March 8, 1980.  Moreover, the evidence
indicates that the earliest date that employer had notice of the hearing loss
claimed was July 31, 1996, the date of its notice of controversion.[3]   Mowl, 32 BRBS at 54.   Thus, we vacate
the administrative law judge's award of interest and modify the award to reflect
accrual of interest from August 14, 1996, fourteen days after the date of
controversion. Wilkerson, 125 F.3d at 907, 31 BRBS at 153 (CRT). 
     Accordingly, the administrative law judge's Decision and Order awarding
interest from March 8, 1980, is vacated and the decision is modified to reflect the
accrual of interest from August 14, 1996.  The decision is affirmed in all other
respects.

     SO ORDERED.



                                                                           
              
                              ROY P. SMITH
                              Administrative Appeals Judge



                                                                           
              
                              JAMES F. BROWN
                              Administrative Appeals Judge



                                                                           
              
                              MALCOLM D. NELSON, Acting
                              Administrative Appeals Judge

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Footnotes.


1) 1Employer also contends that the situs requirement was not met in the instant case based on Mills v. Director, OWCP, 877 F.2d 356, 22 BRBS 97 (CRT)(5th Cir. 1989)(en banc), wherein the court held that employer's fabrication shop in Amelia, Louisiana, at one of the same yards here, is not a covered situs under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.§1331 et seq., an extension of the Act. For the reasons stated in Zeringue, we reject this contention. Zeringue, 32 BRBS at 276. Back to Text
2) 2In Fulks, the Fifth Circuit held that the fact that a claimant is exposed to injurious stimuli in both covered and uncovered employment cannot defeat the compensability of the entire claim as the relative contribution of each employment is not apportioned. Thus, we reject employer's contention that claimant's arguably greater exposure to noise in uncovered employment limits its liability for claimant's hearing loss to the percentage due to noise exposure in covered employment. Back to Text
3) 3Although employer must have known of the injury prior to July 31, 1996, in order to file a notice of controversion on that date, the record is devoid of evidence of the date employer received the actual claim and the parties stipulated that employer was not formally advised of the hearing loss until August 27, 1996. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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