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                                   BRB No. 92-2149

EDGAR E. MILLER                         )    
                                        )
          Claimant                      )    
                                        )
     v.                                 )
                                        )
ALABAMA DRY DOCK AND                    )                          
SHIPBUILDING CORPORATION                )
                                        )
          Self-Insured                  )    DATE ISSUED:   02/28/1995
          Employer-Petitioner           )
                                        )
     and                                )
                                        )
TRAVELERS INSURANCE COMPANY             )
                                        )    
          Carrier-Respondent            )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT OF             )
LABOR                                   )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeal of the Order Dismissing Travelers Insurance Company and the
     Decision and Order Approving Settlement of Richard D. Mills,
     Administrative Law Judge, United States Department of Labor.

     Walter R. Meigs, Mobile, Alabama, for self-insured employer.

     Traci M. Castille (Franke, Rainey & Salloum), Gulfport, Mississippi, for
     carrier.

     Samuel J. Oshinsky, Counsel for Longshore (Thomas S. Williamson, Jr.,
     Solicitor of Labor; Carol DeDeo, Associate Solicitor), Washington, D.C.,
     for the Director, Office of Workers' Compensation Programs, United
     States Department of Labor.

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

     PER CURIAM:

     Employer appeals the Order Dismissing Travelers Insurance Company and the
Decision and Order Approving Settlement (89-LHC-3340) 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 worked as a pipefitter for employer from 1963 until he retired in the
late summer or fall of 1988, where he was exposed to loud workplace noise. On June
12, 1987, claimant filed a claim under the Act for a 16 percent binaural hearing
loss based on the results of a May 1, 1987, audiometric examination performed at
the University of South Alabama Speech and Hearing Center.  A subsequent
audiometric examination performed by Dr. McDill on August 30, 1989, revealed an
11.6 percent binaural hearing loss.  At the hearing before the administrative law
judge, the sole issue was whether Travelers Insurance Company (Travelers), which
provided insurance coverage to employer from May 24, 1988 to May 24, 1989, is
liable as the responsible carrier.  

     In his June 19, 1991, Order Dismissing Travelers, the administrative law judge
determined that employer is liable for claimant's benefits in its self-insured
capacity, thereby rejecting employer's argument that pursuant to Section
8(c)(13)(D) of the Act, 33 U.S.C. §908(c)(13)(D) (1988), claimant may not be
charged with awareness of his hearing loss until he personally receives a copy of
an audiogram and accompanying report. In so concluding, the administrative law
judge based his finding of awareness on claimant's constructive receipt of an
audiogram and accompanying report through his attorney who attached a copy of the
May 1, 1987, audiogram to the June 12, 1987, claim.  Analyzing the responsible
carrier issue under the standard set forth in Larson v. Jones Oregon Stevedoring
Co., 17 BRBS 205 (1985), the administrative law judge determined that, inasmuch
as claimant's May 1, 1987, date of awareness occurred prior to May 24, 1988, when
Travelers assumed coverage, employer is liable in its self-insured capacity and he
issued an Order on June 19, 1991, dismissing Travelers from the proceedings.

     Employer also argued that Travelers is liable for the hearing loss claim
pursuant to the terms of its insurance policy with employer and should be estopped
from denying responsibility based on its prior acceptance without reservation of
the claims in question on February 1, 1989.  The administrative law judge did not
address these arguments as he found that he lacked jurisdiction to rule on the
contractual rights of the parties.  

     On July 18, 1991, claimant and employer submitted a proposed settlement
agreement to the administrative law judge in which employer agreed to pay claimant
a lump sum of $3,000 plus $1,800 for his attorney's fee, and future medical
benefits, affixing copies of the May 1, 1987 and August 30, 1989, audiograms as
supporting documentation.[1]   The parties'
proposed settlement was approved by the administrative law judge in a Decision and
Order dated July 23, 1991.    

     On appeal, employer challenges the administrative law judge's finding that it
is liable for claimant's occupational hearing loss in its capacity as a self-insurer, reiterating the argument made below that claimant cannot be charged with
awareness of the hearing loss revealed on the May 1, 1987, audiogram until December
10, 1990 inasmuch as no accompanying report was prepared until that time.  In the
alternative, employer asks that the Board certify the insurance questions presented
in this case to the Alabama Supreme Court. Both Travelers and the Director, Office
of Workers' Compensation Programs (the Director), respond, urging that the
administrative law judge's Order dismissing Travelers as the responsible carrier
be affirmed and the request for certification to the Alabama Supreme Court denied.
Travelers specifically asserts that it is not liable for claimant's benefits
because the claim was filed for a hearing loss diagnosed prior to the time it
assumed the risk.  Citing Port of Portland v. Director, OWCP, 932 F.2d 836,
24 BRBS 137 (CRT)(9th Cir. 1991), Travelers avers that it cannot be held liable
because it is impossible for any exposure claimant may have sustained between May
and September 1988, during its period of coverage, to have contributed to the
hearing loss evidenced on the May 1, 1987, audiogram which formed the basis of the
claim. 

     It is well-established that the employer or carrier responsible for paying
benefits in an occupational hearing loss case is the last covered employer or
carrier to expose claimant to injurious stimuli prior to the date upon which
claimant becomes aware that he is suffering from an occupational disease arising
out of his employment. Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d
Cir. 1955), cert. denied, 350 U.S. 913 (1955).  In resolving the responsible
carrier issue in this case, the administrative law judge applied the standard set
forth in Larson, 17 BRBS at 205, which held that the time of awareness under
Sections 12 and 13, 33 U.S.C. §§912, 913, would be applied in determining
the date of awareness for purposes of ascertaining the responsible employer or
carrier under the Cardillo standard.  Thus, pursuant to Section 8(c)(13)(D),
which provides that the Sections 12 and 13 time limitations do not commence in
hearing loss cases until claimant receives an audiogram and accompanying report,
in Larson,  the Board held that the responsible carrier is the carrier 

providing coverage during claimant's last exposure to injurious stimuli prior to
his receipt of an audiogram and accompanying report.

     Subsequent to the administrative law judge's decision in the present case,
however, the Board overruled Larson and adopted the decision of the United
States Court of Appeals for the Ninth Circuit in Port of Portland v. Director,
OWCP, 932 F.2d 836, 24 BRBS 137 (CRT)(9th Cir. 1991). Good v. Ingalls
Shipbuilding, Inc., 26 BRBS 159 (1992).  In Port of Portland, the court
held that receipt of the audiogram and accompanying report has no significance
outside the procedural requirements of Sections 12 and 13 of the Act, and that the
responsible employer or carrier is the one on the risk at the time of the most
recent exposure related to the disability evidenced on the audiogram determinative
of the disability.[2]    See Good, 26 BRBS
at 163; see also Barnes v. Alabama Dry Dock & Shipbuilding Corp., 27 BRBS
188 (1993). 

     In light of the change in the standard resulting from the Board's holding in
Good, we vacate the administrative law judge's finding that self-insured
employer is liable for the benefits owed to claimant and we remand the case for the
administrative law judge to reconsider the responsible carrier issue consistent
with Port of Portland and Good.[3] 
 On remand, the administrative law judge must discuss the audiograms of record and
ascertain which is determinative of claimant's hearing loss. See Port of
Portland, 932 F.2d at 841, 24 BRBS at 143 (CRT); Barnes, 27 BRBS at
191; Good, 26 BRBS at 163. If he finds that the 1989 audiogram is
determinative of claimant's disability, then Travelers is the carrier responsible for paying claimant's benefits.[4]  
If, however, he determines that the May 1, 1987, audiogram is determinative of
claimant's disability, then employer is liable in its self-insured capacity for the
payment of claimant's benefits. See Barnes, 27 BRBS at 191; Good, 26
BRBS at 161-163.

     Employer also argues that Travelers is liable for claimant's benefits pursuant
to the terms of the insurance policy, and that Travelers waived its right to
contest liability by virtue of its February 1, 1989 letter to employer, accepting
liability without reservation.  These arguments were previously addressed and
rejected by the Board in Barnes, 27 BRBS at 191-192.  Accordingly, for the
reasons stated therein, employer's contentions are rejected.[5]   Id. 

      Accordingly, the administrative law judge's Order Dismissing Travelers
Insurance Company is vacated, and the case is remanded for further consideration
of the responsible carrier issue consistent with this decision.

     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)Claimant and the employer had completed their settlement negotiations prior to the time that the hearing was held concerning Travelers' potential liability. Although Travelers was not a party to this agreement, it acknowledged its acceptance of the proposed settlement amounts as reasonable in the event that it was determined to be the responsible carrier. At the hearing, claimant and the employer indicated that the $3,000 settlement amount was somewhat less than the $3,429.38 in disability compensation claimant would have been entitled to based on the average of the two audiograms but noted that employer had also agreed to pay attorney's fees and costs. Tr. at 5, Back to Text
2)We need not address the specific arguments raised by the parties with regard to claimant's date of awareness because the arguments made were based on application of Larson. We note, however, that the Board has held that the receipt of an audiogram by counsel is not constructive receipt by the employee and that pursuant to Section 8(c)(13)(D), the statute of limitations period for filing a claim for hearing loss under the Act commences only upon the physical receipt by claimant of an audiogram, with its accompanying report, which indicates that claimant has suffered a loss of hearing. Vaughn v. Ingalls Shipbuilding, Inc., 26 BRBS 27 (1992), aff'd on recon. en banc, 28 BRBS 129 (1994). Back to Text
3)In its response brief, Travelers also asserts that it cannot be held liable as the responsible carrier as there is no proof claimant was exposed to noise at employer's facility after it assumed the risk on May 24, 1988. Claimant testified, however, that he was exposed to noise at employer's facility even after earplugs were issued because the hearing protection provided did not block out all of the noise and he would remove the earplugs often during the normal course of a day's work. See Traveler's Ex. 10, pp. 35-36. Moreover, the record reflects that the parties stipulated to noise exposure. See Joint Ex. 1; Order at 2. As Travelers bears the burden of showing the absence of injurious exposure during its period of coverage, we reject this contention. See Lins v. Ingalls Shipbuilding, Inc. 26 BRBS 62, 63 (1992); Suseoff v. San Francisco Stevedoring Co., 19 BRBS 149 (1986). Back to Text
4)Travelers contends that even if claimant was subsequently exposed to noise during its period of coverage it cannot be held liable as the responsible carrier because the noise was not injurious as evidenced by the fact that claimant's hearing loss did not deteriorate after it assumed the risk of coverage. We reject this argument. A distinct aggravation of an injury need not occur for an employer or carrier to be held liable; all that is required is evidence of exposure to potentially injurious stimuli. Good v. Ingalls Shipbuilding, Inc., 26 BRBS 159, 163-164 n. 2 (1992); Lustig v. Todd Pacific Shipyards Corp., 20 BRBS 207 (1988), aff'd in pertinent part sub nom. Lustig v. U.S. Dept. of Labor, 881 F.2d 593, 22 BRBS 159 (CRT) (9th Cir. 1989). Back to Text
5)Employer's motion for certification of the insurance questions to the Alabama Supreme Court is denied, as there is no authority under the Act for the Board to take such action. See Barnes v. Alabama Dry Dock & Shipbuilding, Co. 27 BRBS 188, 191 n.2. (1993). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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