Please Click on this link to download the original document in WP 6.1 format.



                                    BRB No. 01-0682

ROMULUS E. BASS, JR.                    )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
VIRGINIA INTERNATIONAL                  )    DATE ISSUED:   05/10/2002 2002

TERMINALS                               )
                                        )
     and                                )
                                        )
ABERCROMBIE, SIMMONS, &                 )
GILLETTE OF VIRGINIA                    )
                                        )
          Employer/Carrier-             )
          Petitioners                   )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order, Errata Order, and Order on Motion for
     Reconsideration and Section 8(f) Application of Fletcher E. Campbell,
     Jr., Administrative Law Judge, United States Department of Labor.

     Gregory E. Camden (Montagna Breit Klein Camden L.L.P.), Norfolk,
     Virginia, for claimant.

     R. John Barrett and Brian L. Sykes (Vandeventer Black, L.L.P.), Norfolk,
     Virginia, for employer/carrier.

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


     PER CURIAM:

     Employer appeals the Decision and Order, Errata Order, and Order on Motion for Reconsideration and
Section 8(f) Application (2000-LHC-2226) of Administrative Law Judge Fletcher E. Campbell, Jr.,
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, a crane operator, alleged that he suffered from a work-related
binaural hearing loss, diagnosed on December 16, 1999.  The administrative law
judge concluded that claimant's binaural hearing loss is work-related, finding that
claimant established invocation of the presumption pursuant to Section 20(a) of the
Act, 33 U.S.C. §920(a), and that employer did not establish rebuttal of the
presumption.  Accordingly, the administrative law judge awarded claimant continuing
permanent partial disability benefits for his binaural hearing loss.  In an Errata
Order, the administrative law judge limited the award to 56.2 weeks at the maximum
compensation rate based upon a 28.1 percent binaural hearing loss as indicated on
a 1999 audiogram.  Initially, the administrative law judge denied employer relief
from continuing compensation liability pursuant to Section 8(f) of the Act, 33
U.S.C. §908(f).  On reconsideration, the administrative law judge granted
employer Section 8(f)  relief based upon the agreement of the Director, Office of
Workers' Compensation Programs (the Director), that the Special Fund is liable
under Section 8(f).

     Employer appeals the administrative law judge's finding that claimant's
hearing loss is work-related.  Employer further contends that the administrative
law judge erred determining the extent of claimant's hearing loss, and in shifting
liability to the Special Fund after employer pays benefits for 104 weeks.  Claimant
responds only to the Section 20(a) issues urging affirmance.  The Director has not
participated in this appeal.

     Employer initially argues that the administrative law judge erred in finding
that claimant established invocation, and that it did not establish rebuttal, of
the Section 20(a) presumption.  The Section 20(a) presumption is invoked if
claimant establishes his prima facie case - - the existence of a harm and
of working conditions which could have caused the harm. Universal Maritime Corp.
v. Moore, 126 F.3d 256, 31 BRBS 119(CRT)(4th Cir. 1997); see generally U.S.
Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982).  Claimant's testimony, if credible, may establish that working
conditions existed which could have caused the harm. See Hampton v. Bethlehem
Steel Corp., 24 BRBS 141 (1990).  Once the Section 20(a) presumption is
invoked, the burden shifts to employer to rebut the presumption by presenting
substantial evidence sufficient to sever the causal connection between the injury
and the employment. See Moore, 126 F.3d 256, 31 BRBS 119(CRT). 

     In finding that claimant established invocation of the Section 20(a)
presumption, the administrative law judge relied on claimant's 1999 audiogram to
establish a harm, a hearing loss.  Additionally, the administrative law judge
relied on claimant's uncontradicted testimony that he was exposed to loud noise on
the job and Dr. Strasnick's opinion that a possible cause of claimant's hearing
loss was noise exposure to establish that claimant was subjected to working
conditions which could have caused the harm.  Moreover, the administrative law
judge found that Dr. Strasnick's opinion is insufficient to establish rebuttal of
the Section 20(a) presumption because he did not state that claimant's exposure to
noise at work did not aggravate his pre-existing hearing problems.  Dr. Strasnick stated
that the greatest likelihood of the cause of claimant's hearing problem is either
a genetically- based hearing loss versus age-related changes within the auditory
system, or noise-induced trauma, but that any determination regarding the
contribution of noise-induced trauma would be conjectural.  Cl. Exs. 5-8, 5-9; Emp.
Exs. 4.1, 4.2.  Dr. Strasnick also stated that a differential diagnosis for the left ear loss is a noise-induced loss. 
Cl. Ex. 5-8; Emp. Ex. 4.1. Dr. Strasnick's opinion therefore is insufficient to rebut the
Section 20(a) presumption as he does not state with a reasonable degree of
certainty that claimant's hearing loss was not caused or aggravated by noise
exposure.  As the administrative law judge's findings that claimant established
invocation of the Section 20(a) presumption and that employer did not establish
rebuttal are  supported by substantial evidence, we affirm them. See
Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT)(9th
Cir. 1998); Bath Iron Works Corp. v. Director, OWCP, 109 F.3d 53, 31 BRBS
19(CRT)(1st Cir. 1997); Bridier v. Alabama Dry Dock & Shipbuilding Corp.,
29 BRBS 84 (1995); Decision and Order at 6; Cl. Exs. 5-6, 5-8, 5-9; Emp. Exs. 4.1,
4.2, 4.4, 7.1; Jt. Ex. 1 n. 8; Tr. at 17-21.  Thus, we affirm the administrative
law judge's finding that claimant's hearing loss is work-related.

     Employer next contends that the administrative law judge erred in finding that
the extent of claimant's hearing loss is 28.1 percent, and asserts that the
administrative law judge should have awarded benefits for a 26.3 percent binaural
loss based on the 1999 audiogram.  Employer states that the administrative law
judge's error is based upon incorrect assertions by claimant's counsel in his
statement of contested issues that claimant suffers from a 28.1 percent binaural
loss.  Claimant's counsel also asserted that claimant suffered from a 28.1 percent
binaural hearing loss in his post-hearing and post-Decision and Order briefs to the
administrative law judge. See Correspondence to ALJ Campbell dated March 22
and 28, 2001, at 1; Clt. Br. dated February 20, 2001, at 1; Emp. Ex. 7.1.
  
     Employer's contention has merit.  The summary of the 1999 audiogram states
that claimant has a 26.3 percent binaural hearing loss. See Emp. Ex. 7.1. 
Additionally, the 26.3 percent binaural loss demonstrated on the 1999 audiogram is
ascertainable from Table 2, p. 226, from the American Medical Association Guides
to the Evaluation of Permanent Impairment (4th ed. 1995). See EX 4.4;
33 U.S.C. §908(c)(13)(B), (E); Craig, et al. v. Avondale Industries,
Inc., 35 BRBS 164, 168 (2001).  Thus, we vacate the administrative law judge's
award for a 28.1 percent binaural hearing loss and modify it to reflect an award
for a 26.3 percent binaural hearing loss.  Claimant's award of permanent partial
disability benefits for his 26.3 percent binaural hearing loss is $901.28 (the
maximum compensation rate) per week from December 16, 1999, for 52.6 (26.3 percent
of 200) weeks pursuant to Section 8(c)(13)(B). See generally Fucci v. General
Dynamics Corp., 23 BRBS 161 (1990)(en banc)(Brown, J., dissenting on
other grounds).   

     Employer lastly contends that the administrative law judge erred in awarding
it Section 8(f) relief after it pays permanent partial disability benefits for 104
weeks because the administrative law judge improperly applied Section 8(f).  In
hearing loss cases in which Section 8(f) is applicable, the Act limits employer's
liability to the lesser of 104 weeks or the extent of hearing loss
attributable to the subsequent injury. See Machado v. General Dynamics
Corp., 22 BRBS 176 (1989) (en banc) (Brown, J., concurring); 33 U.S.C.
§908(f)(1).

     We agree with employer's contention, and we modify the administrative law
judge's award of Section 8(f) relief.  In this case, claimant's compensable hearing
loss is measured by the December 1999 audiogram.  Employer is liable for the
difference between the loss demonstrated on this audiogram and that demonstrated
on the next most recent audiogram, administered on August 18, 1997. Risch v.
General Dynamics Corp., 22 BRBS 251 (1989).  The 1997 audiogram reveals a 39.4
percent monaural hearing loss, which converts to a 6.6 percent binaural loss.   Ex.
7.1.  It is appropriate to convert the monaural loss to a binaural loss for Section
8(f) purposes, so that the respective liabilities of employer and the Special Fund
are calculated on the same basis. See generally McShane v. General Dynamics
Corp., 22 BRBS 427 (1989).[1]   Thus, employer
is liable for benefits for claimant's binaural impairment for 39.4 weeks (26.3% x
200 = 52.6 weeks; 52.6 - (6.6% x 200) = 39.4 weeks), and the Special Fund is liable
for benefits for 13.2 weeks.  33 U.S.C. §908(f)(1).

     Accordingly, the administrative law judge's Decision and Order, Errata Order,
and Order on Motion for Reconsideration and Section 8(f) Application are  modified
in part to reflect that claimant is entitled to compensation for a 26.3 percent
binaural hearing loss.  Of the total award of 52.6 weeks, employer is liable for
39.4 weeks and the Special Fund is liable for 13.2 weeks.  In all other respects,
the decisions are affirmed.  

     SO ORDERED.



                                                                   
                         NANCY S. DOLDER, Chief                            Administrative Appeals Judge
                         

                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                   
                         BETTY JEAN HALL                                   Administrative Appeals Judge


To Top of Document

Footnotes.


1)In so doing, we are not departing from the holdings of the United States Court of Appeals for the Second, Fourth, and Fifth Circuits, that where claimant has a measurable hearing loss in only one ear, his compensation should be calculated on a monaural basis. See Baker v. Bethlehem Steel Corp., 24 F.3d 632, 28 BRBS 27(CRT)(4th Cir. 1994); Rasmussen v. General Dynamics Corp., 993 F.2d 1014, 27 BRBS 17(CRT)(2d Cir. 1993); Tanner v. Ingalls Shipbuilding, Inc., 2 F.3d 143, 27 BRBS 113(CRT)(5th Cir. 1993), rev'g 26 BRBS 43 (1992)(en banc)(Dolder and Smith, JJ., dissenting); 33 U.S.C. §908(c)(13)(A). In these cases, the courts were addressing the extent of a claimant's hearing loss in determining his entitlement to benefits and were not ascertaining employer's liability for Section 8(f) relief in a case where claimant is being compensated for a binaural hearing loss, as here. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document