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                                   BRB No. 92-2418

ISRAEL BANKS                            )
          Claimant-Petitioner           )
     v.                                 )
MURRAY STEVEDORING COMPANY,             )    DATE ISSUED:   05/11/1995
INCORPORATED                            )
     and                                )
ASSOCIATION                             )
          Employer/Carrier-             )
          Respondents                   )    DECISION AND ORDER

     Appeal of the Decision and Order of A.A. Simpson, Jr., Administrative
     Law Judge, United States Department of Labor.

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

     Joseph R. Sullivan (Miller, Hamilton, Snider & Odom), Mobile, Alabama,
     for employer/carrier.

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


     Claimant appeals the Decision and Order (90-LHC-2248) of Administrative Law
Judge A.A. Simpson, Jr., denying benefits 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
this employer, during the years 1925 to 1972, inclusive.  The administrative law
judge found that claimant was exposed to noise at the Alabama State Docks General
Cargo Facilities, and that Murray Stevedoring (employer), for whom claimant performed most of his work
in the last quarter of 1972, last exposed claimant to injurious stimuli.  Claimant
retired in 1972.

     On November 14, 1986, claimant underwent an audiometric evaluation which
revealed a .9 percent binaural hearing impairment; claimant thereafter sought
benefits from employer for a work-related hearing loss on March 25, 1987.  Employer
was notified of the claim on March 25, 1987, and filed a notice of controversion
on June 13, 1990.  Claimant also underwent audiometric testing on February 1, 1991,
which indicated that claimant suffers a 6.85 percent binaural hearing loss.

     In his Decision and Order, the administrative law judge found that claimant
retired in 1972, and thus, if claimant's hearing loss is compensable, employer
would not be liable for the deterioration in claimant's hearing indicated by the
difference in hearing loss revealed by the 1986 and 1991 audiometric exams.  The
administrative law judge found employer's liability would be limited by the .9
percent loss exhibited on the 1986 test.  The administrative law judge further
found that a .9 percent binaural impairment translates to a zero percent "whole
man" impairment under the American Medical Association Guides to the Evaluation of
Permanent Impairment, and thus, if claimant demonstrated a measurable work-related
impairment, he would not be entitled to benefits under Section 8(c)(23) of the Act,
33 U.S.C. §908(c)(23).  Citing Bruce v. Bath Iron Works Corp., 25 BRBS
157 (1991), the administrative law judge concluded based on the foregoing that
claimant did not establish the existence of a measurable hearing impairment at the
time he retired in 1972, and is thus not entitled to disability or medical
benefits.[1]   Decision and Order at 3.

     On appeal, claimant contends that the administrative law judge erred in
denying benefits based on the finding that claimant did not establish the existence
of a measurable impairment at the time he retired.  In addition, claimant contends
that the administrative law judge erred in determining that his award should be
calculated pursuant to Section 8(c)(23) rather than Section 8(c)(13).  Employer
responds, urging affirmance of the administrative law judge's Decision and Order.

     Initially, claimant contends that the administrative law judge erred by
failing to award benefits for claimant's hearing loss as evidenced by the audiogram
results from 1986.  We agree.  The administrative law judge in this case erred in
relying on Bruce, 25 BRBS at 157 to deny benefits, as it is factually
dissimilar.  In Bruce, and three earlier cases, Labbe v. Bath Iron Works
Corp., 24 BRBS 159 (1991), Dubar v. Bath Iron Works Corp., 25 BRBS 5
(1991), and Brown v. Bath Iron Works Corp., 22 BRBS 384 (1989), the Board
was faced with the issue of the calculation of benefits for claimants who were
exposed to noise in covered employment and then worked in non-covered employment. 
In Brown, the Board held that the aggravation of a covered injury occurring
after claimant's longshore employment has terminated is non-compensable, citing
Leach v. Thompson's Dairy, Inc., 13 BRBS 231 (1981).  The Board vacated the
award of benefits based on a 1983 audiogram, and remanded the case for the
administrative law judge to determine if claimant had a hearing loss prior to his
leaving covered employment, based on earlier audiograms of record. Brown,
22 BRBS at 388.

     Thereafter, in Labbe v. Bath Iron Works Corp., 24 BRBS 159 (1991), the
Board reconsidered its holding in Brown, 22 BRBS at 388, and stated that
Leach, 13 BRBS at 231, has not been applied to retiree occupational disease
cases. Labbe, 24 BRBS at 161-162; see also Dubar v. Bath Iron
Works Corp., 25 BRBS 5 (1991) (restating this proposition with regard to a non-retiree case).  The Board stated that in occupational disease cases the last
covered employer or carrier is liable for the totality of claimant's disability
resulting from an occupational disease even if the disability is aggravated by
subsequent non-covered employment.  Labbe, 24 BRBS at 162.  The Board held
in Labbe that the holdings in Brown and Leach do not
necessarily require claimants to recreate the precise extent of their hearing loss
at the date covered employment ended and that, in the absence of credible evidence
regarding the extent of hearing loss at the end of covered employment, the
administrative law judge may rely on the most credible evidence of record in
determining the extent of claimant's work-related hearing loss. Labbe, 24
BRBS at 161-162; see also Dubar, 25 BRBS at 8.

     Contrary to the administrative law judge's reasoning in this case, the Board
did not require in Bruce, 25 BRBS at 157, that the results from later tests
be projected back to determine whether claimant sustained a compensable hearing
loss at the time he left covered employment.  The earliest audiogram of record in
that case was administered to the claimant fourteen and one-half years after he
left covered employment, and reflected either a zero or a 6.5 percent hearing loss
depending on the calibration of the equipment.  The administrative law judge found
that this audiogram was the most reliable evidence of the claimant's hearing loss
as it was performed closest to the time the claimant left covered employment. 
Consequently, based upon the record, the Board affirmed the administrative law
judge's finding that the claimant did not sustain his burden of establishing the
existence of a measurable hearing impairment. Bruce, 25 BRBS at 160.

     The instant case is distinguishable from the forgoing, as claimant herein
retired from all employment in 1972, and was not exposed to noise in subsequent
non-covered employment.[2]   Claimant, therefore,
is entitled to benefits for the totality of his occupational hearing loss based on
the most credible evidence of record. See Ronne v. Jones Oregon Stevedoring
Co., 22 BRBS 344 (1989), aff'd in pert. part sub nom. Port of Portland v.
Director, OWCP, 932 F.2d 836, 24 BRBS 137 (CRT) (9th Cir. 1991).  The
administrative law judge found the 1986 audiogram to be the better indicator of
claimant's work-related hearing loss.  Moreover, Dr. Sellers noted that claimant
had been exposed to loud noises in his employment as a longshoreman, and concluded
that claimant's loss in the high frequencies indicate that noise exposure was a
possible contributor to his hearing problem.  Cl. Ex. 4.  Therefore, inasmuch as
the audiogram which the administrative law judge found to be the most reliable
shows a hearing impairment which could have been caused by work-related noise
exposure, we reverse the administrative law judge's denial of benefits.

     In addition, we agree with claimant that, as a retiree, he is entitled to be
compensated under Section 8(c)(13) rather than Section 8(c)(23) for his
occupational hearing loss.  The United States Supreme Court has held that because
occupational hearing loss results in immediate disability, claimants must be
compensated under the schedule pursuant to Section 8(c)(13), regardless of whether
they are retirees. Bath Iron Works Corp. v. Director, OWCP, ___ U.S. ___,
113 S.Ct. 692, 26 BRBS 151 (CRT)(1993).  We therefore vacate the administrative law
judge's award of benefits under Section 8(c)(23), and, as neither the
administrative law judge's finding that the 1986 audiometric evaluation is the more
credible nor his acceptance of the stipulated average weekly wage of $302.66 is
challenged on appeal, we modify the award to reflect employer's liability for 1.8
weeks (.9 percent of 200 weeks) of permanent partial disability benefits based upon
the stipulated average weekly wage pursuant to Section 8(c)(13) of the Act.[3]   Bath Iron Works, 113 S.Ct. at 699-700,
26 BRBS at 154 (CRT); Moore v. Ingalls Shipbuilding, Inc., 27 BRBS 76
(1993).  Furthermore, employer is liable for a Section 14(e) penalty, as a matter
of law, on the entire award of benefits, as it stipulated that it did not
controvert the claim until over three years after it had notice of the injury.
Pullin v. Ingalls Shipbuilding, Inc., 27 BRBS 45, aff'd on recon.,
27 BRBS 218 (1993).  Claimant, similarly, is entitled to interest on the entire
award. See generally Smith v. Ingalls Shipbuilding Div., Litton Systems,
Inc., 22 BRBS 46 (1989).  

     Accordingly, the administrative law judge's Decision and Order denying
benefits is reversed, and the decision is modified to reflect claimant's
entitlement to permanent partial disability benefits, a Section 14(e) penalty, and
interest consistent with this decision.



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                         ROY P. SMITH
                         Administrative Appeals Judge


                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)Inasmuch as claimant was not entitled to benefits, the administrative law judge also found that claimant was not entitled to interest or a Section 14(e) penalty. Back to Text
2)Moreover, unlike in Bruce, all audiograms of record reveal a measurable impairment. Back to Text
3)The administrative law judge's denial of medical benefits on the ground that claimant does not have a compensable impairment is similarly reversed. We note, however, that there is no evidentiary basis in the record for an award of medical benefits. Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14 (CRT) (5th Cir. 1993). Claimant may seek medical benefits if and when medical treatment becomes necessary. Id. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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