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                                 BRB No. 97-0769

  
CLAUDINE M. BARNES                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
MASTER MARINE,                          )    DATE ISSUED:   01/21/1998

INCORPORATED                            )
                                        )
     and                                )
                                        )
LIBERTY MUTUAL INSURANCE                )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

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

     Mitchell G. Lattof, Sr. (Lattof & Lattof, P.C.), Mobile, Alabama, for claimant.

     Thomas E. Vaughn (Allen, Vaughn, Cobb & Hood, P.A.), Gulfport, Mississippi, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order - Denying Benefits (95-LHC-1788) 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 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 was exposed to workplace noise while working as a carpenter at Alabama Dry Dock from 1944
to 1946, and thereafter for thirty years between 1949 and 1979 while working for employer.  Based on the
results of an audiogram performed on November 12, 1994, fifteen years after his retirement,[1]  claimant sought compensation under the Act for a 34.1 percent noise-induced binaural hearing loss pursuant to Section 8(c)(13), 33 U.S.C. §908(c)(13). In his Decision
and Order, the administrative law judge found that claimant's hearing loss was not due to work-related noise
exposure, and denied the claim accordingly.  Claimant appeals the administrative  law  judge's finding that his
hearing loss is not work-related.  Employer responds, urging affirmance.

     Section 20(a) of the Act, 33 U.S.C. §920(a), provides claimant with a presumption that his condition
is causally related to his employment if he shows that he suffered a harm and that employment conditions
existed or a work accident occurred which could have caused, aggravated, or accelerated the condition.
See Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991); Gencarelle v. General
Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS 13 (CRT) (2d Cir. 1989).  Once
claimant has invoked the presumption, the burden shifts to employer to rebut the presumption with substantial
countervailing evidence. Merrill, 25 BRBS at 144.  If the presumption is rebutted, the administrative law
judge must weigh all the evidence and render a decision supported by substantial evidence. See Del
Vecchio v. Bowers, 296 U.S. 280 (1935).

     After consideration of the Decision and Order in light of the record evidence, we affirm the administrative
law judge's denial of benefits because his finding that claimant's hearing loss is not causally related to
workplace noise is rational, supported by substantial evidence, and in accord with applicable law. See
O'Keeffe, 380 U.S. at 359. Contrary to claimant's initial argument on appeal, the administrative law judge
did not determine that claimant was not exposed to injurious noise levels during the more than 30 years he
worked in the shipyard industry.  Rather, based on claimant's history of working in a noisy environment for
approximately thirty years and the opinion of claimant's audiologist, Mr. Holston, that exposure to loud
workplace noise could have contributed to claimant's hearing loss,  he specifically found that claimant was
entitled to invocation of the Section 20(a) presumption.  He then concluded, however, that employer established
rebuttal based on Dr. Seidemann's testimony that the pattern on claimant's audiogram, which demonstrated
the highest degree of loss at 8,000 hertz levels rather than at the 3,000, 4,000 and 6,000 hertz levels, was not
indicative of a noise-induced loss.[2]   Thereafter, upon weighing the
evidence as a whole, the administrative law judge found Dr. Seidemann's unequivocal opinion more persuasive
than Mr. Holston's testimony that noise could have been a contributing factor in claimant's hearing loss
and determined accordingly that claimant  failed to carry his burden of proof on the causation issue. 

     Claimant also argues on appeal that the administrative law judge erred in finding that Dr. Seidemann's
opinion provided substantial evidence to rebut the Section 20(a) presumption, characterizing it as speculative
in that it was based on the general assumption that carpenters and insulators working in the shipyards would
not receive the  90 decibel 8 hour time-weighted exposure necessary to produce a hearing loss under the
Occupational Safety and Health Administration standards. Inasmuch, however,  as  Dr. Seidemann specifically
testified that regardless of whether claimant's exposure was 90,95, 100, 87, or 85 decibels, the pattern of 
hearing loss he exhibited was not that of someone who has a noise-induced loss, Tr. at 71, claimant's argument
is rejected.  Moreover, although claimant appears to argue that the pattern on his audiogram can be explained
by the fact that he suffers from presbycusis or other unknown factors in addition to a noise-induced loss, the
administrative law judge properly relied upon Dr. Seidemann's  testimony that noise exposure did not contribute
in any way to claimant's hearing loss.  Tr. at 71.  Inasmuch as claimant has failed to establish that the
administrative law judge's decision to credit Dr. Seidemann's testimony is either inherently incredible or patently
unreasonable, and his  opinion provides substantial evidence sufficient  to sever the presumed causal nexus
and establish the absence of causation on the record as a whole, both the administrative law judge's  finding
of rebuttal and his ultimate determination that claimant's hearing loss is not noise-related based on this
testimony are affirmed.[3]   See Cordero v. Triple A Machine Shop,
580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); Holmes v. Universal
Maritime Service Corp., 29 BRBS 18, 21 (1995). 
     Accordingly, the administrative law judge's Decision and Order - Denying Benefits is affirmed.

     SO ORDERED.


                                                                         
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                         
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                         
                         NANCY S. DOLDER
                         Administrative Appeals Judge  



                                   

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Footnotes.


1)This is the only audiogram of record. Back to Text
2)Dr. Seidemann also opined that the fact that claimant reported a progressively decreased hearing sensitivity after leaving his shipyard work, and the extreme severity of his hearing loss were incompatible with hearing loss due to noise exposure. Tr. at 47, 52, 59. Back to Text
3)Although claimant also argues that Dr. Seidemann's lack of credibility is a matter of record and cites three Decisions and Orders by three different administrative law judges in support of this argument, credibility determinations are solely within the purview of the trier-of-fact who presides over the particular case. See generally Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 156, modifying on recon., 28 BRBS 27 (1994). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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