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                                BRB No. 97-1270
                                        
JOHN O'KEEFE                            )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/09/1998     

                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME SERVICES             )
CORPORATION                             )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of  the Order of  Dismissal of  Ralph A. Romano, Administrative Law Judge, United
     States Department of Labor.

     Samuel A. Denburg (Baker, Garber, Duffy & Pederson, P.C.), Hoboken, New Jersey, for
     claimant.

     Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey City, New Jersey, for
     employer.

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

     PER CURIAM:

     Claimant appeals the Order of Dismissal (96-LHC-1353) of Administrative Law Judge Ralph A. Romano
denying 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).

     In 1981, claimant began working for employer as a heavy equipment operator, signalman, and parker
which exposed him to noise from various military and industrial equipment.  On March 24, 1992, Dr. Matthews
examined claimant and diagnosed a 21.5 percent binaural hearing impairment related to exposure to noise. 
Three days later, on March 27, 1992, claimant completed a claim form, EX 8,  and a retainer, EX 9, with a
compensation representative, John Gargano.  Nonetheless, claimant's claim for compensation under the Act
was not filed until June 26, 1995.   Employer raised a timeliness defense before the administrative law judge,
alleging that the claim is barred because claimant failed to file his claim within one year from his receipt of an
audiogram and accompanying  report as required by Section 8(c)(13)(D) of the Act, 33 U.S.C.
§908(c)(13)(D).

     In his Order of Dismissal, the administrative law  judge found that, based on claimant's signature on the
claim form, and circumstantial evidence, i.e., the claimant's experiencing hearing difficulties,
visiting an audiologist and three days later retaining a representative to pursue a work-related hearing loss, and
signing a claim form, that claimant was made aware of his work-related hearing loss through the contents of
Dr. Matthews's report and audiogram.  While noting claimant's testimony to the contrary, the administrative
law judge found further from claimant's awareness that he could inferentially establish that claimant received
the audiogram and report in accordance with Section 8(c)(13)(D).  The administrative law judge thus found that
employer rebutted the presumption of timeliness set forth in 33 U.S.C. §920(b), and therefore found the
claim time barred and dismissed it  without reaching the merits.

     On appeal, claimant contends that the administrative law judge erred by finding the claim time-barred. 
Specifically, claimant contends the administrative law judge erred in finding he received a copy of an audiogram
and medical report within the meaning of Section 8(c)(13)(D), and that employer presented sufficient evidence
to rebut the Section 20(b) presumption.  Employer responds, urging affirmance.

     Section 13(a) states that claimant has one year from the date of injury to file a claim for compensation
under the Act. See Vaughn v. Ingalls Shipbuilding, Inc., 28 BRBS 129 (1994)(Decision and Order
on Recon. en banc).  The time for filing a claim under Section 13 for a hearing loss does not
commence until the employee has received a copy of the audiogram with accompanying report.  33 U.S.C.
§908(c)(13)(D); 20 C.F. R. §702.221(b).  The Board has held that under Section 8(c)(13)(D),
claimant must have actual physical receipt of the audiogram and report before the statute of limitations starts
to run irrespective of claimant's awareness of a work-related hearing loss. Ranks v. Bath Irons Works
Corp., 22 BRBS 301 (1989).  Moreover, Section 20(b) of the Act, 33 U.S.C. §920(b), provides
a presumption that sufficient notice of a claim has been given, in the absence of  substantial evidence to the
contrary. Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989). 

     Although the administrative law judge's inference that claimant was aware of his work-related hearing
loss in 1992 is rational, this finding is not dispositive of the timeliness issue, inasmuch as mere awareness of
a hearing loss is clearly insufficient to establish claimant's actual physical  receipt of an audiogram and
accompanying medical report under Section 8(c)(13)(D). Ranks, 22 BRBS at 301.  In the instant
case, claimant testified that he never received Dr. Matthews's audiogram and medical report, and there is no
direct evidence of record to contradict claimant's testimony.  Indeed, Dr. Matthews testified he did not usually
discuss the results of the audiogram with the longshoreman, but that his usual practice was to send the report
and audiogram to the claimant's representative.  CX 6 at 17.  In the present case, the report is addressed to the
law firm of Marciano & Topazio.  The retainer form signed by claimant, however, lists John Gargano in the
space captioned "Attorney or Representative," and the record does not contain any evidence linking Mr.
Gargano to Marciano & Topazio.[1]   Mr. Gargano did not
testify in this proceeding, and  employer did not present any additional evidence that could establish claimant's
actual receipt of the audiogram and report.  Given the contrary testimony of claimant and Dr. Matthews, we
hold that the administrative law judge's conclusion that since  claimant was aware of his work-related hearing
loss, he must have physically received an audiogram and medical report within the meaning of Section
8(c)(13)(D) of the Act, is not supported by substantial evidence.  Moreover, there is simply no evidence to rebut
the Section 20(b) presumption.  Consequently, we reverse the administrative law judge's finding that the claim
is time-barred, and we remand this case for the administrative law judge to address the merits of claimant's
claim.

     Accordingly, the administrative law judge's Order of Dismissal is reversed, and the claim is remanded
for the administrative law judge to address the merits of  claimant's claim. 

     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)The United States Court of Appeals for the Ninth Circuit held in Jones Stevedoring Co. v. Director, OWCP [Taylor], 133 F.3d 683, 31 BRBS 178 (CRT)(9th Cir. 1997), that the one year statute of limitations for filing a claim for hearing loss commenced when claimant's attorney received a copy of the audiogram and accompanying report indicating the claimant had a work-related hearing loss, and that the time was not tolled because claimant had not personally received these documents. Contra Vaughn v. Ingalls Shipbuilding, Inc., 28 BRBS 129 (1994)(Decision and Order on Recon. en banc). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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