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                                     BRB No. 01-650
HANIFF H. BARAICHI                      )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )    DATE ISSUED:   05/06/2002 
                                             
NATIONAL STEEL AND                      )
SHIPBUILDING COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits, the Decision and
     Order on Reconsideration, and the Supplemental Decision and Order on
     Reconsideration Awarding Representative's Fee of Thomas M. Burke,
     Administrative Law Judge, United States Department of Labor.

     Jeffrey Winter, San Diego, California, for claimant.

     Barry W. Ponticello and Renee C. St. Clair (England, Trovillion, Inveiss
     & Ponticello, P.C.), San Diego, California, for self-insured employer.

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

     PER CURIAM:

     Employer appeals the Decision and Order Awarding Benefits, the Decision and
Order on Reconsideration, and the Supplemental Decision and Order on
Reconsideration Awarding Representative's Fee (2000-LHC-2397) of Administrative Law
Judge Thomas M. Burke 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 administrative law judge's
findings of fact and conclusions of law if they are supported by substantial
evidence, are rational, and are in accordance with law.  33 U.S.C. §921(b)(3);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). 
The amount of an attorney's fee award is discretionary and will not be set aside
unless shown by the challenging party to be arbitrary, capricious, an abuse of
discretion or not in accordance with the law. Muscella v. Sun Shipbuilding & Dry
Dock Co., 12 BRBS 272 (1980).
     The facts of this case are undisputed.  In January 2000, claimant filed a
claim for compensation for work-related bilateral hearing loss and bilateral knee
injuries which resulted from his 30 years of employment as a welder and welder
supervisor with employer.  During this time, claimant was exposed to loud noises
and was required to repeatedly bend, climb, kneel and squat in order to perform his
work.  Employer accepted the claim for the knee injuries and agreed that claimant
sustained a non-ratable work-related hearing loss in each ear.  However, employer
disputed whether the remaining hearing loss in claimant's right ear was
compensable, contending that this hearing loss was due to an intervening cause.

     Prior to 1995, claimant had undergone audiometric testing which revealed an
unratable mild symmetric bilateral sensorineural hearing loss related to noise
exposure.  Emp. Ex. F.  In 1995, claimant underwent audiometric testing which
revealed an asymmetric high frequency loss, with the right ear being worse, but the
loss was still at an unratable level.  Id.  The parties agreed that this
hearing loss is work-related.  In late 1997, claimant had a sudden severe loss of 
hearing in his right ear following an ear infection.  On July 30, 1999, claimant
suffered a heart attack.  After recovering from the heart attack, claimant retired,
retroactive to July 1999, due to the elimination of his job.   The parties
stipulated that claimant's last date of noise exposure was July 30, 1999.  A
hearing evaluation conducted in 1999 revealed that claimant's right ear has no
hearing capacity, and the left ear has a greater loss than it did in 1995, but that
loss is still unratable.  Decision and Order at 3-4.

     The administrative law judge found, pursuant to the parties' stipulation, that
the hearing loss in claimant's left ear  is work-related but is not compensable
under the Act.  Decision and Order at 5-6.  In addressing whether employer is
liable for benefits for the  hearing loss in the right ear, the administrative law
judge applied the Section 20(a), 33 U.S.C. §920(a), presumption and  found
that employer failed to rebut it.  Nevertheless, the administrative law judge
explained that he credited claimant's expert, Dr. Smith, and found that claimant's
hearing in his right ear was worse due to the combination of the damage caused by
an inner ear infection and the damage due to work-related noise exposure.  Decision
and Order at 7-8.  The administrative law judge awarded claimant benefits for a
16.8 percent binaural hearing impairment pursuant to Section 8(c)(13)(B) of the
Act, 33 U.S.C. §908(c)(13)(B).  Decision and Order at 10.  The administrative
law judge denied employer's application for Section 8(f), 33 U.S.C. §908(f),
relief.  Decision and Order at 9.

     Both parties sought reconsideration of the Decision and Order.  The
administrative law judge rejected employer's assertion that the ear infection was
not the natural or unavoidable result of the work-related hearing loss, finding
that "the compensable hearing loss was the natural consequence of a viral infection
on the pre-existing occupational injury to the right ear."  Decision and Order on
Recon. at 2.  The administrative law judge granted claimant's motion for
reconsideration and modified his award for a binaural loss to one for a monaural
loss in light of the decision of the United States Court of Appeals for the Fifth
Circuit in Tanner v. Ingalls Shipbuilding, Inc., 2 F.3d 143, 27 BRBS
113(CRT) (5th Cir. 1993). Thus, the administrative law judge awarded claimant
benefits for 100 percent hearing loss in the right ear under Section 8(c)(13)(A),
33 U.S.C. §908(c)(13)(A).  Decision and Order on Recon. at 3.  In a
Supplemental Decision and Order on Reconsideration, the administrative law judge
awarded claimant's counsel an attorney's fee of $9,137.50, representing 30.75 hours
at an hourly rate of $250, plus $1,750 for a witness fee, minus $300 for the state
offset.  Employer appeals both decisions, and claimant responds, urging affirmance.

     Employer contends the administrative law judge erred in awarding benefits for
claimant's hearing loss in his right ear because the ratable loss was caused by a
subsequent, non work-related, intervening event, namely the non work-related ear
infection.  In this regard, employer argues that the administrative law judge
improperly applied the aggravation rule to this case.

     In determining whether a disability is work-related, a claimant is aided by
the Section 20(a) presumption, which may be invoked only after he establishes a
prima facie case.  To establish a prima facie case, the claimant must
show that he sustained a harm or pain and that conditions existed or an accident
occurred at his place of employment which could have caused the harm or pain.
Bath Iron Works Corp. v. Brown, 194 F.3d 1, 33 BRBS 162(CRT) (1st Cir.
1999); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir.
1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981); see also
U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14
BRBS 631 (1982).  Once the claimant establishes a prima facie case, Section
20(a) applies to relate the injury to the employment, and the employer can rebut
this presumption by producing substantial evidence that the injury was not related
to the employment. Conoco, Inc. v. Director, OWCP [Prewitt], 194 F.3d 684,
33 BRBS 187(CRT) (5th Cir. 1999); see also American Grain Trimmers v. Director,
OWCP [Janich], 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999) (en banc),
cert. denied, 120 S.Ct. 1239 (2000); Gooden, 135 F.3d 1066, 32 BRBS 
59(CRT).  If the employer rebuts the presumption, it no longer controls and the
issue of causation must be resolved on the evidence of record as a whole, with the
claimant bearing the burden of persuasion. Universal Maritime Corp. v.
Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also Director,
OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).  If the
claimant sustains an injury at work which is followed by a subsequent injury or
aggravation outside of work, the employer is liable for the entire resultant
condition if the subsequent harm is the natural or unavoidable result of the work
injury. James v. Pate Stevedoring Co., 22 BRBS 271 (1989); Pakech v.
Atlantic & Gulf Stevedores, Inc., 12 BRBS 47 (1980) (Smith, C.J., dissenting);
Vandenberg v. Leicht Material Handling Co., 11 BRBS 164 (1979) (Smith, C.J.,
dissenting).  If the subsequent progression of the condition is not due to the work
injury but is the result of an intervening cause, the employer remains liable for
any portion of the disability  related to the work injury, but it is relieved of
liability for all disability attributable to the intervening cause. Bludworth
Shipyard, Inc. v. Lira, 700 F.2d 1046, 15 BRBS 120(CRT) (5th Cir. 1983); Cyr
v. Crescent Wharf & Warehouse Co., 211 F.2d 454 (9th Cir. 1954); Leach v.
Thompson's Dairy, Inc., 13 BRBS 231 (1981).

     In this case, the parties stipulated that claimant sustained a non-ratable
work-related hearing loss in both ears.  Subsequently, claimant developed an ear
infection, and it is undisputed that the ear infection was not work-related. 
Claimant suffered total hearing loss in his right ear after the infection.  Dr.
Smith opined that claimant's right ear loss was worse as a result of the
combination of his noise exposure and ear infection, as a person with pre-existing
damage to the inner ear due to exposure to noise is more likely to suffer an
increase in hearing loss following an ear infection.  Cl. Ex. 3.       On these
facts,  the administrative law judge properly invoked the Section 20(a)
presumption, as claimant established a harm, hearing loss, and working conditions
which could have caused that harm, noise exposure.  Kier v. Bethlehem Steel
Corp., 16 BRBS 128 (1984).

     As claimant invoked the Section 20(a) presumption, the burden shifted to
employer to present substantial evidence severing the causal nexus between
claimant's hearing loss and his employment.  The administrative law judge found
that employer failed to do so, as he found that Dr. Goodman's testimony was
equivocal and not sufficiently specific or comprehensive to rebut the presumption. 
Decision and Order at 8; Tr. at 87-88, 100.  Dr. Goodman testified that claimant's
sudden hearing loss was caused by a vascular injury related to high cholesterol. 
Tr. at 87.  He also stated that he did not believe claimant was more susceptible
to hearing loss from an ear infection by virtue of the previous noise-related
damage to his ears, but noted that "the term infection is a vague term."  Tr. at
100.  The testimony reiterates the opinion in his report dated February 14, 2000,
wherein Dr. Goodman stated that claimant's sudden hearing loss was caused by an
acute loss of blood supply to the inner ear and that without documentation of an
explosive noise or trauma immediately preceding the hearing loss, the loss cannot
be considered work-related.  Emp. Ex. H.

     We need not address whether Dr. Goodman's opinion suffices to rebut Section
20(a), as any error the administrative law judge may have made in this regard is
harmless.  The  administrative law judge determined that the opinion of Dr. Smith
was entitled to more weight than that of Dr. Goodman based on Dr. Smith's
educational background, training, work experience, and research into the specific
area at issue.  It is within the authority of the  administrative law judge to
determine the weight to be given the evidence.   Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963);
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d  Cir. 1961); Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Perini Corp. v.
Heyde, 306 F.Supp. 1321 (D.R.I. 1969).  As the decision to give greater weight
to Dr. Smith is rational, it must be affirmed.

     Dr. Smith determined that claimant's loss of hearing in his right ear is worse
as a result of the combination of the inner ear infection and the trauma due to
noise exposure, and he stated that the pre-existing damage in claimant's right ear
due to noise exposure made claimant more susceptible to suffering a hearing loss
as a result of the ear infection.  Based on his research in the temporal bone
laboratory at UCLA, Dr. Smith stated that where a person has pre-existing inner ear
damage due to noise trauma, as claimant herein, he is more likely to suffer an
increase in hearing loss after contracting an ear infection.  He explained that
this occurs because a person with damage to the outer third of the cochlea is more
likely to destroy the remaining portion of the inner ear upon the occurrence of a
subsequent traumatic event.  Thus, he opined that the damage caused by the
infection  superimposed over the previous work-related hearing loss resulted in
claimant's "dead" right ear.  Cl. Ex. 3; Tr. at 49, 51-53.  Dr. Smith's opinion
constitutes substantial evidence supporting the finding that claimant's right ear
hearing loss is related, at least in part, to claimant's employment. James,
22 BRBS at 273-274; Vandenberg, 11 BRBS at 168-169 (holding disability
compensable, as work-related hernia increased susceptibility for another hernia).

     Given Dr. Smith's opinion, the instant case is similar to the situations in
James and Plappert v. Marine Corps Exchange, 31 BRBS 13, aff'd on
recon. en banc, 31 BRBS 109 (1997), where disabilities following subsequent
injuries were compensable as sequelae of the work injury, and distinguishable from
Davison v. Bender Shipbuilding & Repair Co., 30 BRBS 45 (1996), a hearing loss case involving a subsequent
intervening cause.  In James, the claimant's work-related back injury, which had
not fully healed, was exacerbated when he stepped in a hole and jarred his spine. 
The evidence of record contained the opinion of a doctor who believed that both
incidents, the work-related back injury and the non work-related misstep, resulted
in a work-related disability.  The administrative law judge credited this opinion. 
Consequently, the administrative law judge awarded, and the Board affirmed,
benefits for this disability.  James, 22 BRBS at 274.  In Plappert,
the claimant injured her back during the course of her employment and then she
sustained another back injury while working for a subsequent non-longshore
employer.  The doctors' opinions of record established that the claimant's
resulting disability was due to the combined effects of the damage to the spine
caused by the work injury as well as the damage caused by the subsequent injury. 
The Board, therefore, affirmed the administrative law judge's award of benefits.
Plappert, 31 BRBS at 16, 31 BRBS at 111. 

     Unlike James and Plappert, in Davison there was no
credited medical opinion  supporting a causal nexus between a work injury and
claimant's disability following a non work-related subsequent event.  Similar to
the present case, in Davison the claimant sustained an unratable work-related hearing loss in both ears.  Long after his employment and his exposure to
work-related noise ended, Davison suffered a fall which resulted in the traumatic
fracture of his temporal bone.[1]   According to
the evidence of record credited by the administrative law judge, the fracture was
the sole cause of Davison's 100 percent monaural hearing loss.  As the hearing loss
was not work-related, the Board affirmed the administrative law judge's denial of
benefits. Davison, 30 BRBS at 47.  Unlike Davison, in the present
case, the credited medical evidence establishes that claimant's work-related loss
was causally related to the loss following his ear infection.

     Contrary to employer's assertions, the administrative law judge applied the
proper law,[2]  correctly citing cases involving
situations where disability following a subsequent event outside of work was found
related to the prior work injury.   Because the second injury in this case was not
work-related, we agree that the aggravation rule is not applicable. See
Davison, 30 BRBS 45; Leach, 13 BRBS 231.  However, we reject employer's
contention that the proper issue is "whether the nonindustrial infection is the
natural or unavoidable result of the prior industrial loss."  Pet. Brief at 9.  The
issue is not the cause of the ear infection, but rather whether the disability
thereafter was related to the employment injury.  Thus, the  administrative law
judge did not err in reviewing the evidence to determine whether claimant's hearing
impairment following his ear infection  was the natural or unavoidable result of
the  work-related damage to his ear.  This determination is consistent with case
law establishing  that if the employment injury contributes to or plays a causal
role in claimant's ultimate condition, then the resulting disability is
compensable. James, 22 BRBS at 273-274; Pakech, 12 BRBS 47;
Vandenberg, 11 BRBS at 168-169 (discussing J.V. Vozzolo, Inc. v.
Britton, 377 F.2d 144 (D.C. Cir. 1967)); see also Southern Stevedoring Co.
v. Henderson, 175 F.2d 863 (5th Cir. 1949) (if "conditions of employment
constitute the precipitating cause," the injury is compensable).  The
administrative law judge thus properly concluded that claimant's right ear hearing
loss is compensable "because the hearing loss itself was the natural and
unavoidable consequence of the initial work injury, not because the viral infection
was a consequence of the work injury."  Decision and Order on Recon. at 1.  Since
Dr. Smith opined that claimant's work-related damage to his ear resulted in an 
increased loss following the ear infection, claimant's disability cannot be
attributed to the ear infection alone.  Thus, his hearing loss in his right ear was
a natural or unavoidable consequence of the damage caused by his work injury. As
the administrative law judge's finding that claimant's work-related hearing damage
loss combined with the loss resulting from the ear infection to cause claimant's
disability is supported by Dr. Smith's opinion, employer is liable for the full
extent of the hearing loss in claimant's right ear.[3]   Jones v. Director, OWCP, 977 F.2d 1106, 26 BRBS 64(CRT) (7th
Cir. 1992); Plappert, 31 BRBS 13.  Accordingly, we affirm the administrative
law judge's award of disability benefits for claimant's 100 percent monaural
impairment.

     Employer also challenges the administrative law judge's award of an attorney's
fee based on an hourly rate of $250.  Employer argues that the issue involved in
this case was not unusually complex and that, therefore, claimant's counsel's fee
should be computed based on an hourly rate of $175.  It also asserts that the
administrative law judge erred in relying on the Survey of Law Firm
Economics because the average hourly rates stated therein do not reflect the
simplicity of this case nor do they represent the rates for sole practitioners. 
The fact that there was only one issue before the administrative law judge does not
require a conclusion that  this case was simple.  The issue involved a difficult
determination of the cause of claimant's hearing loss.  This factor was properly
addressed by the administrative law judge, as he clearly considered the appropriate
regulatory criteria in determining the hourly rate.[4]   Further, the amount of an attorney's fee is discretionary, and the
administrative law judge acted within his discretion in relying on the Survey
of Law Firm Economics in considering an appropriate fee for attorneys
practicing in San Diego, California. Story v. Navy Exchange Service Center,
33 BRBS 111, 120 (1999); McKnight v. Carolina Shipping Co., 32 BRBS 165,
aff'd on recon. en banc, 32 BRBS 251 (1998).  Therefore, we reject
employer's argument that the administrative law judge erred in awarding a fee based
on an hourly rate of $250, and we affirm the administrative law judge's fee award.

     Accordingly, the administrative law judge's  Decision and Order on
Reconsideration and his Supplemental Decision and Order on Reconsideration Awarding
Representative's Fee are affirmed.

     SO ORDERED.




                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1)In contrast, in the present case claimant was employed and continued to be exposed to noise at work at the time that he suffered the ear infection and for two years thereafter. Back to Text
2)Employer argues that the administrative law judge misapplied the aggravation rule, which provides that when a claimant sustains an employment injury that aggravates, accelerates or combines with a pre-existing disability, the entire resulting disability is compensable. Port of Portland v. Director, OWCP [Ronne I], 932 F.2d 836, 24 BRBS 137(CRT) (9th Cir. 1991); Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc). Under the aggravation rule, the second injury must be work-related, and it must aggravate a prior condition. This rule does not apply here, as the work-related injury occurred first. It is clear that the administrative law judge's decision did not rely on this principle, but on the correct law. Decision and Order at 7. Back to Text
3)There is no evidence in this case which would permit apportionment of the degree of loss attributable solely to the subsequent ear infection. See Plappert v. Marine Corps Exchange, 31 BRBS 13, 16, aff'd on recon. en banc, 31 BRBS 109, 110 (1997). Back to Text
4)Although the administrative law judge cited to 20 C.F.R. §725.366, a Black Lung regulation, the relevant portion of that section contains the identical considerations as the criteria enumerated in 20 C.F.R. §702.132: Any fee approved shall be commensurate with the necessary work done and shall take into account the quality of the representation, the complexity of the legal issues, and the amount of benefits awarded. . . . 20 C.F.R. §702.132(a); compare with 20 C.F.R. §725.366(b). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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