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                                  BRB Nos. 90-2181
JOSEPH I. HALL                          )
          Claimant-Respondent           )
     v.                                 )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   02/16/1995
INCORPORATED                            )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER
     Appeal of the Decision and Order Awarding Benefits of A.A. Simpson, Jr., 
     Administrative Law Judge, United States Department of Labor.

     John F. Dillon (Maples & Lomax, P.A.), Pascagoula, Mississippi, for the

     Paul M. Franke (Franke, Rainey & Salloum), Gulfport, Mississippi, for
     the self-insured employer.

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


     Employer appeals the Decision and Order Awarding Benefits (88-LHC-2647) of
Administrative Law Judge A.A. Simpson, Jr., 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 if they are rational,
supported by substantial evidence, and 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 worked for employer as a rust machine operator from 1962 until 1974,
where he was exposed to loud industrial noise. Subsequent to working for employer,
claimant worked for three other maritime employers; for Todd Shipyards Corporation
(Todd Shipyards) for approximately two months in 1974,  for Cardinal Construction
Company (Cardinal Construction), from 1974 through 1976, and for J.B. Kelly, where
he is currently employed, commencing in 1976.  An audiogram performed on November
7, 1987, was interpreted by Dr. James Wold as reflecting a 2.1 percent binaural
hearing loss. On November 25, 1987, claimant filed a claim under the Act for occupational hearing
loss based on the results of this audiogram and provided employer with notice of
his injury that same day.  Previously, on May 14, 1987, Assistant District
Director[1]  Robert H. Bergeron advised employer's
attorney that due to the unprecedented number of hearing loss claims filed in his
office against employer, employer was excused from filing notices, responses,
controversions and making payments in regard to these claims as required by Section
14(e) of the Act, 33 U.S.C. §914(e), until 28 days following service of a
claim by the district director's office.  On January 7, 1988, employer filed its
notice of controversion.  A second audiometric examination performed on October 10,
1989 was interpreted by Dr. J.R. Dickey as indicative of an 8.76 percent binaural
hearing loss. 

     A hearing was held on October 12, 1989, wherein the parties disputed
causation, the extent of disability, employer's liability for medical benefits, and
the Section 14(e) penalty. Employer additionally attempted to escape liability by
arguing that it was not the responsible employer because claimant received
subsequent noise exposure while employed in maritime employment prior to the date
of injury. 

     In his Decision and Order, the administrative law judge, after discussing
claimant's testimony regarding his exposure to noise at Todd Shipyards, Cardinal
Construction and J. B. Kelly, Inc.,  determined that employer was liable as the
responsible employer because it was the last maritime employer to expose claimant
to injurious noise levels. Accordingly, the administrative law judge concluded that
employer was liable for claimant's 5.43 percent binaural hearing loss based on the
average of the two audiograms of record pursuant to 33 U.S.C. §908(c)(13)(B). 
The administrative law judge further found that employer was liable for medical
benefits in connection with claimant's hearing loss and for payment of a Section
14(e) assessment.  On appeal, employer challenges the administrative law judge's
finding that it is the responsible employer and in addition contends that the
administrative law judge erred in holding it liable for a Section 14(e) assessment. 
 Claimant responds, urging affirmance of the administrative law judge's award of
a Section 14(e) assessment.[2]     

     In the instant case, the administrative law judge invoked the Section 20(a),
33 U.S.C. §920(a), presumption.  To rebut the presumption, employer must
present facts to show that exposure to injurious noise did not cause claimant's
hearing loss.  Employer also may escape liability by showing that claimant was
exposed to injurious stimuli while employed for a subsequent, covered employer.
Avondale Industries, Inc. v. Director, OWCP,  977  F.2d 186,  26 BRBS 111
(CRT)(5th Cir. 1992); Lins v. Ingalls Shipbuilding, Inc., 26 BRBS 62 (1992);
see also Susoeff v. San Francisco Stevedoring Co., 19 BRBS 149 (1986);
Swinton v.  J. Frank Kelly, Inc.,  554 F.2d 1075, 4 BRBS 466 (D.C. Cir.
1976), cert. denied 429 U.S. 820 (1976).  Herein, employer attempted to
avoid liability by establishing that claimant was exposed to injurious noise levels
while working at Todd Shipyards, at Cardinal Construction, and at J.B. Kelly, Inc.,
subsequent to the termination of his employment with employer in 1974.

     The rule for determining the responsible employer in an occupational hearing
loss case is set forth in Travelers Insurance Co. v. Cardillo, 225 F.2d 137
(2d Cir. 1955), cert. denied, 350 U.S. 913 (1955).  Under the Act, the
employer responsible for a claimant's disability benefits is the last covered
employer to expose the claimant to injurious stimuli prior to the date on which the
claimant became aware of the fact that he was suffering from an occupational
disease. Id., 225 F.2d at 137; Lins, 26 BRBS at 62; Susoeff,
19 BRBS at 149.  Employer asserts that it is not the responsible employer
because it is undisputed that claimant's work for Todd Shipyards and Cardinal
Construction was maritime employment, and claimant testified that he was exposed
to at least some degree of noise while working for these subsequent employers.[3]    

     At his deposition, claimant underwent extensive questioning by employer's
counsel regarding his exposure to noise while working at Todd Shipyards and
Cardinal Construction. Claimant testified that when he was working for Todd
Shipyards he was working in the main office picking up trash which was located
approximately one-quarter of a mile away from the chippers and other workers in the
shipyard. Depo. at 28. He further testified that when he was working for Cardinal
Construction, a company which was in the business of building offshore modules for
drilling rigs, he was exposed to minimal noise.  Depo at 50. Claimant explained
that while Cardinal Construction did employ welders and grinders, he was not
exposed to noise created by these craftsman because, as a burner, he worked inside
a building away from them.  Depo. at 35-36.  By contrast, claimant testified that
while working for employer he was exposed to noise from chipping guns, grinders,
scale guns, and rust machine and burr motors from 8 to 12 hours a day, five days
or more per week.  Depo. at 48-49.  

     After setting forth claimant's testimony, the administrative law judge
concluded that claimant was last exposed to injurious levels of industrial noise
while working for employer and that his hearing loss thus arose in the course and
scope of that employment.  Decision and Order at 2.  It is well-established that
all adjudicative and fact-finding functions reside in the administrative law judge.
See Cotton v. Newport News Shipbuilding and Dry Dock Co., 23 BRBS 380
(1990).  Thus, an administrative law judge is entitled to evaluate the credibility
of all witnesses and to draw his own inferences from the evidence. See Thompson
v. Northwest Enviro Services, Inc., 26 BRBS 53 (1992).  The administrative law
judge's finding, based upon claimant's testimony, that claimant was last exposed
to high levels of industrial noise while employed by employer is rational and supported by substantial evidence. 
Employer here did not meet its burden of proving that claimant was exposed to
injurious levels of noise in his subsequent maritime employment with Todd Shipyards
and Cardinal Construction.   See Avondale Shipyards, 977 F.2d at 191-192,
26 BRBS at 114-115 (CRT).  Accordingly, the administrative law judge's finding that
employer is the responsible employer is affirmed.

     Turning to employer's appeal of the administrative law judge's determination
that it is liable for a Section 14(e) assessment, employer specifically asserts
that the administrative law judge erred in finding that the "excuse" granted by the
district director is invalid.  Employer further contends that the instant case is
distinguishable from Ingalls Shipbuilding, Inc. v. Director, OWCP, 898 F.2d
1088, 23 BRBS 61 (CRT) (5th Cir. 1990), aff'g in pert. part Fairley v. Ingalls
Shipbuilding, Inc., 22 BRBS 184 (1989)(en banc), because the excuse was
granted prior to the date claimant notified employer of his injury rather than
retroactively.  Additionally, employer contends that even if it had not been
excused, the concept of "replacement income" is not applicable in this case, so the
Section 14(e) penalty should not apply.

     The precise arguments raised by employer regarding the excuse granted by the
district director, the inapplicability of Fairley, supra, and the concept
of "replacement income" have been rejected by both the Board and the United States
Court of Appeals for the Fifth Circuit, in whose jurisdiction the present case
arises. See Ingalls Shipbuilding, Inc. v. Director, OWCP, 976 F.2d 934 (5th
Cir. 1992), aff'g Benn v. Ingalls Shipbuilding, Inc., 25 BRBS 37 (1991);
see also Ingalls Shipbuilding, Inc., 898 F.2d at 1095, 23 BRBS at 67 (CRT). 
We therefore reject these specific allegations of error raised by employer.  The
administrative law judge's finding that employer is liable for a Section 14(e)
penalty is accordingly affirmed.  

     Accordingly, the administrative law judge's Decision and Order awarding
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)Pursuant to Section 702.105 of the regulations, 20 C.F.R. §702.105 the term "district director" has replaced the term "deputy commissioner" used in the statute. Back to Text
2)Claimant's motion to strike portions of employer's brief relating to the award of the Section 14(e), 33 U.S.C. §914(e), assessment is denied; the arguments made therein, however, will be considered as his response to employer's appeal. Back to Text
3)On appeal, employer does not challenge the administrative law judge's finding that claimant was not exposed to injurious noise levels while working for J.B. Kelly, Inc. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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