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                                  BRB No. 98-853

FAIRL R. MORRELL                        )
          Claimant-Petitioner           )
       v.                               )
                                        )    DATE ISSUED:   02/24/1999
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Richard D. Mills, Administrative Law
     Judge, United States Department of Labor.

     Henry B. Zuber III (Parlin & Murphy), Ocean Springs, Mississippi, for

     Traci M. Castille (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
     Mississippi, for self-insured employer.

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


     Claimant appeals the Decision and Order (96-LHC-2084) 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 administrative law judge's
findings of fact and conclusions of law if they are supported by substantial
evidence, are rational, and are in accordance with law.  33 U.S.C. §921(b)(3);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     Claimant last worked for employer as a fitter and welder in May 1973.  Emp.
Brief at exh. D-E.  In February 1992, he underwent an audiometric evaluation with
Dr. Spires which revealed a sensorineural hearing loss consistent with noise
exposure.  However, under the American Medical Association Guides to Evaluation
of Permanent Impairment, claimant's impairment was assessed at zero percent. 
In a 1995 letter regarding the 1992 evaluation, Dr. Spires explained the audiogram
and stated that claimant is not a candidate for hearing amplification.  Emp. Brief
at exh. C.  Claimant underwent a second evaluation in June 1994.  Dr. Stanfield
determined that claimant's evaluation revealed a bilateral sensorineural hearing
loss of 8.13 percent.  He recommended that claimant receive annual evaluations and
hearing aids for this loss.  Emp. Brief at exh. B.  Based on the second audiometric
evaluation, claimant filed a claim for benefits under the Act.  In response,
employer filed a motion for summary judgment.

     In his decision, the administrative law judge set forth the applicable law
regarding claimant's burden of proof in establishing a prima facie case
under Section 20(a), 33 U.S.C. §920(a).  He also discussed the results of both
audiograms, and he concluded that claimant failed to establish that he has a work-related hearing loss, as he considered the 1992 audiogram valid and most
representative of any hearing loss claimant may have sustained  while working for
employer for 20 years previously. Decision & Order at 1-2.  Consequently, the
administrative law judge granted employer's motion for summary judgment and denied
claimant benefits. Id. at 3.  Claimant appeals the decision, and employer
responds, urging affirmance.

     Claimant contends that the administrative law judge erred in granting employer
summary judgment, as he asserts there remain genuine issues of material fact
regarding the issues of responsible employer, causation, disability and medical
benefits.  Claimant seeks remand for further discovery or for further findings of
fact by the administrative law judge.  We hold that the administrative law judge's
decision is affirmable on the merits, and thus we need not address the propriety
of the administrative law judge's grant of summary judgment.

     In this case, claimant last worked for employer in 1973.  The first
audiometric evaluation he underwent subsequent to this maritime employment was in
1992 -- nearly 20 years later.  The evaluation, which the administrative law judge
credited, was determined to be valid by Dr. Spires.   Dr. Spires stated that this
audiogram  revealed a zero percent impairment, and that claimant had no need for
treatment such as hearing amplification.   Thus, this audiogram constitutes
substantial evidence supporting the administrative law judge's denial of disability
and medical benefits, regardless of the contrary results of an evaluation conducted
two years later. See Cox v. Brady-Hamilton Stevedore Co., 25 BRBS 203 (1991)
(administrative law judge may credit audiogram taken closest to last injurious
exposure to noise); Bruce v. Bath Iron Works Corp., 25 BRBS 157 (1991)
(administrative law judge acted within his discretion by making inferences from the
medical evidence and refusing to project a hearing loss back 15 years); see also
Ingalls Shipbuilding, Inc.  v.  Director, OWCP [Baker], 991 F.2d 163, 27 BRBS
14 (CRT) (5th Cir.  1993) (there must be an evidentiary basis for an award of
medical benefits).  As the administrative law judge's decision is rational and is
supported by substantial evidence, we affirm the denial of disability and medical

     Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C.  McGRANERY
                         Administrative Appeals Judge

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1)Both audiograms of record revealed a work-related hearing loss. Thus, the administrative law judge erred in determining that claimant failed to establish a prima facie case relating his hearing loss to his employment. This error, however, is harmless, as the evidence credited by the administrative law judge establishes there is no measurable impairment for which compensation is due. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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