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                                 BRB No. 97-1332

CARLO LATERZA                           )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/24/1998    
 
                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME SERVICE              )
CORPORATION                             )
                                        )    
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

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

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

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

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

     PER CURIAM:

     Claimant appeals the Decision and Order (96-LHC-1716) of Administrative Law
Judge Ralph A. Romano 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, who worked as a deckman and crane operator for employer from 1971
until he retired in 1987, sought benefits under the Act for noise-induced
occupational hearing loss.  Based on an audiogram performed on March 15, 1995, Dr.
Matthews, an otolaryngologist, opined that claimant had a 30 percent hearing loss in the
right ear,  a 34.5 percent hearing loss in the left ear, or a binaural hearing loss
of 30.8 percent due to occupational noise exposure.  CX-2.  A June 13, 1996,
audiogram performed by Dr. Katz, a Board-certified otolaryngologist, revealed a
16.9 percent hearing loss in the left ear, a 26.25 percent loss in the right, or
a binaural hearing loss uncorrected for age of 18.4 percent.  Noting that
claimant's loss of hearing had progressed as he approached the age of 73, and that
he had admitted experiencing a deterioration in his hearing with age, Dr. Katz
opined that, corrected for age, claimant had 0 percent impairment in his left ear,
an 8.6 percent loss in the right ear, or a binaural hearing loss of 1.4 percent,
none of which was due to noise exposure. EX-3; EX-7 at 68.

     In his Decision and Order, after initially finding that claimant was entitled
to invocation of the presumption at Section 20(a), 33 U.S.C. §920(a), the
administrative law judge found that employer produced substantial evidence to rebut it.  Next, after
considering the totality of the evidence, the administrative law judge concluded that claimant's hearing loss was not
causally related to his work-related noise exposure, and accordingly denied claimant benefits under the Act.
     
     On appeal, claimant contends that the administrative law judge erred in
finding that none of his hearing loss is occupationally related.  Claimant
specifically avers that the administrative law judge erred in finding that the
medical opinion of Dr. Katz provided substantial evidence to rebut the Section
20(a) presumption, in light of its speculative nature.  In addition, claimant
asserts that the record as a whole does not support the administrative law judge's
ultimate conclusion regarding the cause of his hearing loss.  Employer responds,
urging affirmance. 

     In the instant case, the administrative law judge properly invoked the Section
20(a) presumption, as he found that claimant suffered a harm, a loss of hearing,
and that working conditions existed which could have caused that harm. See
generally  Manship v. Norfolk & Western Railway Co., 30 BRBS 175 (1996). Accordingly, the burden shifted
to employer to present specific and comprehensive evidence sufficient to sever the causal connection between claimant's
hearing loss and his employment with substantial evidence that claimant's condition was not caused or aggravated by his
employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert.
denied, 429 U.S. 820 (1976); Davison v. Bender Shipbuilding & Repair Co., Inc., 30 BRBS 45, 46-47
(1996).  In the present case, after considering the record evidence, the
administrative law judge determined that employer established rebuttal of the
Section 20(a) presumption based on the opinion of its medical expert, Dr. Katz. 
Dr. Katz attributed  claimant's hearing loss to aging, past ear infections, and the
effects of  cardiovascular disease and stated unequivocally in his deposition
testimony that claimant's 38 years of noise exposure was not responsible for any
portion, however slight, of claimant's hearing loss.  EX-7 at 68. 
     In challenging the administrative law judge's findings regarding causation, claimant initially argues that
the administrative law judge erred in finding the Section 20(a) presumption
rebutted based on Dr. Katz's testimony.  Claimant asserts  that because Dr. Katz
admitted  that he could not tell what portion of claimant's hearing loss was
attributable to age and what portion was due to noise exposure by looking at an
audiogram alone, EX-7 at 63, his opinion regarding the cause of claimant's hearing
loss is speculative, and thus does not constitute specific and comprehensive
evidence sufficient to sever the presumed causal connection.  In addition, claimant
argues that Dr. Katz's opinion attributing claimant's hearing loss to age and other
physiological factors is based on unsubstantiated medical theories because he
inferred that claimant was suffering from cardiovascular disease based only on his
medical history and the fact that he was wearing a nitroglycerine patch for chest
pain without reviewing any medical records.

     We reject claimant's assertion that the administrative law judge erred in
finding rebuttal established based on Dr. Katz's testimony.  While Dr. Katz did
state  that he could not  determine the cause of claimant's hearing loss based
solely on claimant's audiogram, he also specifically testified that he was able to
make this determination based on the application of age correction tables, the
pattern  and progression of claimant's hearing loss, and  claimant's medical and
work history.  EX-7 at 30, 61-62, 65.  Accordingly, there is no merit to claimant's
characterization of this testimony as speculative.  Moreover, the fact that Dr.
Katz inferred that claimant had cardiovascular disease from claimant's physical
examination and medical history without having reviewed his medical records also
does not, contrary to claimant's assertions, establish that this opinion was
premised on unsubstantiated medical theories.  Inasmuch as Dr. Katz's opinion
provides substantial evidence to support the administrative law judge's finding of
rebuttal and claimant has failed to raise any reversible error, we affirm this
determination. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 373 U.S. 954 (1963); Davison, 30 BRBS at 45.[1]  

     Claimant also argues that the evidence as a whole does not support the
administrative law judge's ultimate determination that claimant's hearing loss is
not noise-related.  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. 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).  In the present case, after weighing the evidence as
a whole, the administrative law judge found Dr. Katz's opinion that none of
claimant's hearing loss was noise-related more persuasive than Dr. Matthew's
contrary opinion, reasoning that while Dr. Katz's opinion was substantiated by the
continued deterioration in claimant's hearing loss after he stopped working, Dr.
Matthews had not  accounted for this factor in rendering his opinion.  Claimant
asserts that while the evidence demonstrates that claimant's hearing loss
deteriorated marginally after he stopped working, it also reflects that he was
experiencing whistling in his ears while still employed.  In assessing the cause
of claimant's hearing loss, however, the administrative law judge recognized that
claimant had some hearing problems while working, but nonetheless rationally found
based on his crediting of Dr. Katz's testimony that the progression of claimant's
hearing loss after he stopped working pointed to age, rather than noise exposure,
as the cause of  his disability.  Inasmuch as Dr. Katz's testimony provides
substantial evidence sufficient to establish the absence of a causal connection
between claimant's hearing loss and his employment, and claimant has failed to
establish error in the administrative law judge's decision to credit Dr. Katz's
opinion over that of  Dr. Matthews, we affirm his determination on the record as
a whole that claimant's hearing loss is not work-related.

     Accordingly, the Decision and Order of the administrative law judge is
affirmed.

     SO ORDERED.

                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



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Footnotes.


1)We note that that Dr. Katz specifically testified that he did not rely on the noise surveys performed by Mr. Bragg at employer's facility in reaching his opinion that workplace noise was not responsible for any portion of claimant's hearing loss. EX-7 at 66-67. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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