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                                   BRB No. 92-1555

WILLIE D. CARTER                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
I.T.O. CORPORATION                      )    DATE ISSUED:   04/25/1995
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Denying Benefits of C. Richard Avery,
     Administrative Law Judge, United States Department of Labor.

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

     Robert E. Thomas and John M. Sartin, Jr. (Cornelius, Sartin & Murphy),
     New Orleans, Louisiana, for self-insured employer.

     Before:  SMITH, DOLDER, and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits (91-LHC-1984) of
Administrative Law Judge C. Richard Avery 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 worked as a longshoreman for various stevedoring companies, including
employer, from 1967 to 1987.  On March 19, 1987, claimant filed a claim under the
Act for a 23.1 percent binaural noise-induced impairment against employer,[1]  based on the results of a February 6, 1987,[2]  audiometric examination administered at the
University of South Alabama Speech and Hearing Center.  A subsequent in-house
hearing evaluation at Ingalls Shipbuilding, Incorporated, on September 22, 1989, was interpreted by audiologist
Marianne Towell as indicative of a zero percent hearing loss.  Exs. 20-21.  A third
audiometric examination performed by Jim D. McDill, Ph.D., on March 22, 1991,
indicated a .3 percent binaural hearing loss.  Cx. 9.   

     In his Decision and Order, the administrative law judge initially noted that
in order for claimant to take advantage of the presumption under Section 20(a) of
the Act, 33 U.S.C. §920(a), he must establish that he was exposed to injurious
stimuli on two occasions in 1984 and 1986 when he worked for employer prior to the
February 6, 1987, date of injury.  The administrative law judge found that claimant
failed to introduce sufficient expert evidence to establish that noisy conditions
existed on those dates which could have caused harm to his hearing, and that
claimant's testimony alone was not sufficient to establish the level of noise to
which he may have been exposed. Therefore, the administrative law judge found the
evidence insufficient to invoke the Section 20(a) presumption, and denied the
claim. 

     Claimant appeals the denial of benefits, arguing that the administrative law
judge erred in failing to accord him the benefit of the Section 20(a) presumption
and in requiring that he affirmatively prove causation.  Specifically, claimant
asserts that the administrative law judge's finding that claimant offered
insufficient evidence to establish that conditions existed while he worked for
employer in 1984 and 1986 which could have caused harm to his hearing is contrary
to the undisputed facts in this case.  Claimant further asserts that in finding
that claimant was not entitled to the benefit of the Section 20(a) presumption, the
administrative law judge erred in focusing solely on the last two occasions he
worked rather than considering claimant's exposure to noise throughout the totality
of his employment.  Finally, claimant avers that inasmuch as he should have been
found entitled to the benefit of the Section 20(a) presumption, pursuant to
Suseoff v. The San Francisco Stevedoring Co., 19 BRBS 149 (1986), it is
employer's burden to establish that it is not the responsible employer, a burden
which it failed to meet in this case.  Employer responds, urging affirmance. 

     We agree with claimant that the administrative law judge's analysis of the
causation issue in this case is not in accordance with law.  In requiring that
claimant prove he was exposed to injurious noise on the last two days he worked for
employer prior to the date of injury in order to establish a prima facie
case for application of Section 20(a), the administrative law judge intermixed
and confused the concepts of causation and responsible employer.  As a result, he
erred in placing the burden of proof on claimant.

     The question of causation deals with whether claimant's injury is related to
his employment as a whole and not to employment with a specific employer.  The
responsible employer rule comes into play once causation is established and is a
judicially-created rule for allocating liability among successive employers in
cases where an occupational disease develops after prolonged exposure to injurious
conditions. Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 144-45 (2d
Cir. 1955), cert. denied, 350 U.S. 913 (1955).  It is well-established that
the employer responsible for paying benefits in an occupational disease case such
as hearing loss is the last covered employer to expose claimant to injurious
stimuli prior to the date he becomes aware that he is suffering from an
occupational disease arising out of his employment. See Todd Shipyards Corp. v.
Black, 717 F.2d 1280, 16 BRBS 13 (CRT)(9th Cir. 1983), cert. denied, 466
U.S. 937 (1984).  A distinct aggravation of an injury need not occur for an
employer to be held liable as the responsible employer; exposure to potentially
injurious stimuli is all that is required. See generally Good v. Ingalls
Shipbuilding, Inc., 26 BRBS 159, 163 n.2 (1992). 

     In establishing causation under the Act, claimant is aided by the Section
20(a) presumption.  In order to be entitled to the Section 20(a) presumption,
claimant bears the burden of establishing that he suffered an injury and that an
accident or working conditions existed that could have caused the harm. See
Everett v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 316 (1989). 
Contrary to the administrative law judge's determination in this case, however,
claimant is not required to introduce affirmative evidence establishing the
existence of injurious working conditions with a particular employer to invoke the
presumption. See, e.g., Sinclair v. United Food & Commercial Workers, 23
BRBS 148, 151-52 (1989).  Rather, claimant need only allege the existence of
working conditions during the course of his employment which could have
caused the harm. See Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140
(1991); Everett, 23 BRBS at 318.  Once claimant establishes these two
elements of his prima facie case, the Section 20(a) presumption operates to
link the harm or pain with claimant's employment. Brown v. I.T.T./Continental
Baking Co., 921 F.2d 289, 295-96, 24 BRBS 75, 80 (CRT)(D.C. Cir. 1990).

     In the present case, as employer does not dispute that claimant sustained an
injury, a hearing loss evidenced on audiograms of record, and claimant testified
that he was exposed to loud noise throughout his years of longshore employment,[3]  we conclude that claimant is entitled to
invocation of the Section 20(a) presumption as a matter of law. Kelaita v.
Triple A Machine Shop, 13 BRBS 326 (1981).  Accordingly, we reverse the
administrative law judge's finding to the contrary. See Peterson v. General
Dynamics Corp.  25 BRBS 71, 78 (1991), aff'd sub nom. Insurance Company of
North America v. U.S. Dept. of Labor, 969 F.2d 1400, 26  BRBS 14 (CRT)(2d Cir.
1992), cert. denied, 113 S.Ct. 1253 (1993).

     Once the Section 20(a) presumption is invoked, employer may rebut it by
producing evidence to show that claimant's employment did not cause, aggravate, or
contribute to his injury. See Peterson, 25 BRBS at 78.  As the
administrative law judge did not evaluate the relevant evidence in terms of
rebuttal, we must remand the case to allow him to do so.  If, on remand, the
administrative law judge finds that employer introduced evidence sufficient to
establish that claimant's hearing loss was not caused or aggravated by noise
exposure, Section 20(a) is rebutted and the administrative law judge must weigh the
relevant evidence as a whole to determine whether claimant's hearing loss is noise-related. Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985).    

     Furthermore, on remand, if the administrative law judge determines that
claimant's hearing loss is related to noise exposure, the last employer to expose
claimant to potentially injurious stimuli is liable as the responsible employer;
an actual causal relationship between the hearing loss and work on the last day
claimant worked for employer is not necessary. See Lustig v. Todd Pacific
Shipyards Corp., 20 BRBS 207 (1988), aff'd in pert. part and rev'd in part
sub nom. Lustig v. U.S. Dept. of Labor, 881 F.3d 593, 22 BRBS 159 (CRT) (9th
Cir. 1989).  In Suseoff, 19 BRBS at 149, the Board addressed the employer's
burden of proof with regard to the issues of causation and the determination of the
responsible employer.  In Suseoff, the Board held that once Section 20(a)
is invoked, employer can rebut it by showing that exposure to injurious stimuli did
not cause the harm alleged, i.e., that claimant's hearing loss is not due
to noise exposure in any employment, but is due to other causes.  Employer may also
escape liability by establishing that it is not the responsible employer; employer
bears the burden of demonstrating that it is not the last covered employer to
expose claimant to injurious noise.   Id., 19 BRBS at 151. Accord
Avondale Industries, Inc. v. Director, OWCP, 977 F.2d 186, 26 BRBS 111
(CRT)(5th Cir. 1992); General Ship Service v. Director, OWCP, 938 F.2d 960,
25 BRBS 22 (CRT)(9th Cir. 1991). See also Lins v. Ingalls Shipbuilding,
Inc., 26 BRBS 62 (1992).

     In the present case, employer stipulated that it was claimant's last maritime
employer; thus, pursuant to Suseoff, if claimant's hearing loss is noise-related it can avoid liability as the responsible employer only by showing that it
did not expose claimant to injurious noise at its facility.  Although the
administrative law judge in the present case found that claimant was not exposed
to injurious noise levels on the last two days he worked for employer based on his
crediting of Dr. Seidman's survey and his assessment of claimant's testimony, in
so concluding he erroneously assumed that claimant bore the burden of establishing
injurious exposure. Accordingly, on remand, if the claimant's hearing loss is found
to be noise-related,  the administrative law judge must then consider the
responsible employer issue in light of the relevant evidence, placing the burden
of proof on the employer consistent with Avondale Industries and
Suseoff. See Lins, 26 BRBS at 65.[4] 

     Accordingly, the administrative law judge's Decision and Order Denying
Benefits is vacated, and the case is remanded for reconsideration consistent with
this opinion.

     SO ORDERED.


     
                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge


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Footnotes.


1)Employer stipulated that it was the last maritime employer. Jx 1. Back to Text
2)The parties stipulated that this February 6, 1987 date was the date of injury. Jx. 1. Back to Text
3)Claimant informed Dr. Daniel E. Sellers of the University of Southern Alabama Speech and Hearing Center that he was exposed to loud noises during his approximately twenty years as a longshore worker. Cx. 8. Back to Text
4)We note that although Dr. Seidman did opine that as a gouger working in the hold of a ship, claimant would only have received noise exposure of between 74 to 84 decibels, claimant testified that he would sometimes perform other types of work such as carpentry work. In addition, Dr. Seidman recorded noise levels in a variety of jobs on the dock above the 87 decibel level which he considered to be the threshold capable of producing hearing loss. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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