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                                 BRB No. 98-0922       

RUBEN C. CHAUVIN                   )     
          Claimant-Petitioner      )    DATE ISSUED:   03/04/1999         
           v.                      )
INCORPORATED                  )                                                 )    
                  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.

          Frank A. Bruno, New Orleans, Louisiana, for claimant.
     Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN Administrative
     Appeals Judges.


     Claimant appeals the Decision and Order-Denying Benefits (97-LHC-635) 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 if they 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 an electrician, electrical foreman, and production engineer for  employer from 1953
until his retirement in 1993.  He was found by the administrative law judge to be 68 years of age at the time
of the October 21, 1997, hearing.  On November 4, 1992, claimant underwent an audiological examination
administered by Daniel Bode, M.A., a certified audiologist. CX 2.  Based on the results of this testing, Mr.
Bode diagnosed a 28.1 percent hearing loss for the right ear, and a 35.6 percent hearing loss for the left, which
translated into a 29.4 percent binaural hearing loss.  Mr. Bode attributed this hearing loss to noise exposure
during claimant's employment.  Claimant's hearing was again tested on March 15, 1993, by William Seidmann,
Ph.D.; that audiogram demonstrated a binaural hearing impairment of 16.6 percent.  EX 3.  Dr. Seidmann
opined that claimant's hearing loss was not noise-related.  Finally, audiometric testing was administered on June
2, 1995, by Dr. Ronald French.  EX 2.  This test revealed a 32.2 percent binaural loss, which Dr. French
testified is not from noise exposure but from the normal aging process.  EX 6 at 11-13, 18.

     Claimant filed for benefits under the Act on November 24, 1992, seeking compensation for a work-related hearing loss consistent with his first audiogram.[1]   The
administrative law judge denied benefits, finding claimant failed to establish that his hearing loss is related to
his exposure to noisy working conditions during the course of his employment for employer.  Claimant appeals,
contending that the administrative judge erred in finding that his hearing loss did not arise out of his
employment.  Employer has not responded to this appeal.

     In the instant case, the administrative law judge properly invoked the Section 20(a), 33 U.S.C.
§920(a), presumption as he found that claimant suffered a harm, specifically a loss of hearing, and that
working conditions existed that could have caused this condition. See generally Merrill v. Todd Pacific
Shipyards Corp., 25 BRBS 140 (1991).  Upon invocation of the presumption, the
burden shifts to employer to present specific and comprehensive evidence sufficient
to sever the causal connection between the injury and the employment. See
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir), cert.
denied, 429 U.S. 20 (1976).  The unequivocal testimony of a physician that no
relationship exists between an injury and a claimant's employment is sufficient to
rebut the presumption. See Keir v. Bethlehem Steel Corp., 16 BRBS 128
(1984).  If the administrative law judge finds that the Section 20(a) presumption
is rebutted, the administrative law judge must weigh all the evidence contained in
the record and resolve the causation issue based on the record as a whole. See
Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 279 (1990); see also
Director, OWCP, v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43

     In finding rebuttal, the administrative law judge relied upon the opinions of
Drs. Seidmann and French, who opined that claimant does not have an occupational
noise-induced hearing loss.  EX 6 at 11-13, EX 7 at 16.   Weighing the evidence as
a whole, the administrative law judge credited the unequivocal opinions of Drs.
Seidmann and French over the opinion of Mr. Bode, stating that Drs. Seidmann and
French have superior credentials and that Dr. Seidmann possesses more experience
with industrial hearing loss.  In challenging this finding claimant assigns error
to the administrative law judge's decision not to rely on the report and testimony
of Mr. Bode.  It is well-established that an administrative law judge is entitled
to weigh the medical evidence and draw his own inferences therefrom and is not
bound to accept the opinion or theory of any particular medical examiner.  See
Todd Shipyards v. Donovan, 300 F.2d 741 (5th Cir. 1962).  In the instant
case, the administrative law judge fully weighed the evidence, and his
determination that claimant's hearing loss is unrelated to his  employment with
employer is supported by substantial evidence.

     Accordingly, the administrative law judge's Decision and Order-Denying
Benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

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1)Employer paid benefits for a 16.6 percent impairment. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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