Universal Maritime Services v. Perry , 137 F. App'x 525 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1542
UNIVERSAL MARITIME SERVICES; SIGNAL MUTUAL
INDEMNITY ASSOCIATION,
Petitioners,
versus
WILLIE L. PERRY; CERES MARINE TERMINALS;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(03-468-A)
Argued: February 2, 2005 Decided: March 18, 2005
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Richard John Barrett, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia,
for Petitioners. Lawrence Philip Postol, SEYFARTH SHAW,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Universal Maritime Services (“Universal”) appeals the
decision of the Benefits Review Board of the Department of Labor
(“BRB”) awarding Willie Perry compensation for his hearing loss
under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. §§ 901-950. Perry v. Universal Maritime Servs., No. 03-
0468 (BRB Apr. 6, 2004) (unpublished) (the “BRB Opinion”). The BRB
Opinion affirmed the earlier Decision and Order of the
Administrative Law Judge (“ALJ”), see Perry v. Ceres Marine
Terminals, No. 2001-LHC-1909 (Dep’t Labor Mar. 17, 2003) (the “ALJ
Decision and Order”), concluding that Perry’s third audiogram was
determinative and that Universal was the employer responsible for
Perry’s hearing loss benefits. As explained below, the ALJ’s
finding that Perry’s third audiogram was determinative is supported
by substantial evidence, and we thus affirm the decision of the
BRB.
I.
Perry has been a member of the International
Longshoreman’s Association since 1966. From approximately 1985
through October 30, 2000, Perry worked primarily for a work gang
assigned to Ceres Marine Terminals (“Ceres”). However, when Ceres
did not have available work, he worked temporarily for other
2
employers. On October 30, 2000, Universal became Perry’s primary
employer.1
On October 26, 2000, while still employed by Ceres, Perry
underwent a baseline audiogram conducted by Taylor Made Diagnostics
(the “Taylor Made audiogram”). Universal arranged for the Taylor
Made audiogram specifically to determine the degree of Perry’s pre-
employment hearing loss. This audiogram was conducted prior to
Perry’s workday in a mobile van equipped with four audiometric
testing stations and a soundproof steel door. Perry had finished
his workday four to five and one-half hours prior to the test, and
he testified that he had been exposed to loud noise while working.
The test administrator (who was neither an audiologist nor an
otolaryngologist) did not conduct other reliability tests for
hearing loss, such as bone-conduction or speech reception. The
Taylor Made audiogram indicated that Perry was suffering an 8%
binaural hearing loss.
On December 26, 2000, while employed by Universal, Perry
underwent audiometric testing conducted by Dr. John Jacobson (the
“Jacobson audiogram”). This audiogram was conducted at the Eastern
1
As a longshoreman, Perry has been employed as both a hustler
(a truck driver) and a slinger (a spotter for boxes lifted by a
crane onto and off of ships). As a slinger, he stands underneath
cranes where he is exposed to the noise of their diesel engine
motors and, as a hustler, he is exposed to similar types of noise.
Perry performed the duties of both slinger and hustler while
employed by Universal and Ceres. However, he worked primarily as
a hustler at Universal, inside a cab, whereas he worked primarily
as a slinger at Ceres, outside in the elements.
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Virginia Medical School Hearing and Balance Center in Norfolk,
Virginia, and Perry had not worked during the five days preceding
the test. Dr. Jacobson, the test administrator, is a board
certified audiologist, and he conducted both bone-conduction and
speech reception tests on Perry. The Jacobson audiogram revealed
a 6.3% binaural hearing impairment.2
Perry filed separate hearing loss claims with the local
Office of Workers’ Compensation Programs against both Universal and
Ceres (which were referred to the Office of Administrative Law
Judges), and subsequently the two claims were consolidated by the
ALJ’s Order of August 22, 2001. Prior to the hearing before the
ALJ, the parties stipulated that Perry suffered from hearing loss
which had been caused, at least partially, by occupational noise
exposure. As Perry was thereby entitled to benefits under §
8(c)(13) of the LHWCA, the only issue to be decided by the ALJ was
which employer — Universal or Ceres — was responsible for Perry’s
benefits as a longshoreman. The ALJ issued his Decision and Order
on March 17, 2003, finding the Jacobson audiogram to be
determinative. See ALJ Decision and Order at 17. Accordingly,
the ALJ concluded that Universal, as the last maritime employer at
2
The record also reveals that a third audiogram was conducted
on Perry by a concern called Miracle-Ear on December 27, 1999,
prior to the Taylor Made and Jacobson audiograms. The ALJ advised
the parties that he would accord no weight to the Miracle-Ear test
because internal inconsistencies rendered it invalid. ALJ Decision
and Order at 6 n.7. Universal makes no contention that the
Miracle-Ear audiogram is determinative or relevant.
4
the time of Perry’s most recent exposure to occupational noise, was
responsible for Perry’s permanent partial disability benefits. Id.
Universal appealed th ALJ Decision and Order to the BRB,
contending that the ALJ had erred in failing to credit the Taylor
Made audiogram and in determining that Universal was the employer
responsible for Perry’s benefits. The BRB affirmed the ALJ
Decision and Order on April 6, 2004, see BRB Opinion at 7, and this
appeal followed. We possess jurisdiction pursuant to 33 U.S.C. §
921(c).
II.
We review BRB decisions for errors of law and for
adherence to the statutory standard governing an ALJ’s factual
findings. Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d
378, 380 (4th Cir. 2000). Section 921(b)(3) of the LHWCA directs
that “the findings of fact in the decision under review by the
Board shall be conclusive if supported by substantial evidence in
the record considered as a whole.” 33 U.S.C. § 921(b)(3). Like
the Board, we will uphold the factual findings of an ALJ so long as
they are supported by substantial evidence, and we will not
disregard those findings merely “‘on the basis that other
inferences might have been more reasonable.’” Faulk, 228 F.3d at
380 (quoting Director, OWCP v. Newport News Shipbldg. & Dry Dock
Co., 138 F.3d 134, 140 (4th Cir. 1998)). Our review of factual
findings made by an ALJ is limited, however, and “deference must be
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given the fact-finder’s inferences and credibility assessments.”
Id. (internal citations and quotation marks omitted).
III.
Whether Ceres or Universal is the responsible employer
for Perry’s benefits turns on the factual determination of when
Perry had an audiogram that was determinative of his disability
under Section § 908(c)(13) of the LHWCA. 33 U.S.C. § 908(c)(13)
(providing that loss of hearing is compensable, audiogram is
presumptive evidence of amount of hearing loss, and statute of
limitations begins to run when employee receives audiogram); see
also Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 961 (9th
Cir. 1998) (determining which audiogram most reliable and awarding
benefits based on date of employee’s last exposure to noise prior
to determinative audiogram). Universal does not contend in this
appeal that the Jacobson audiogram is inaccurate; it instead
maintains that the Taylor audiogram is adequate and determinative,
under the LHWCA and its implementing regulations, to assign
liability for Perry’s benefits to Ceres. Yet, experts testified
before the ALJ that the Taylor and Jacobson audiograms were
contradictory, and that both could not be accurate. ALJ Decision
and Order at 14.
In resolving this dispute, the ALJ engaged in an
exhaustive review of the audiometric evidence, weighing and
commenting on it, and then finding the Jacobson audiogram to be the
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determinative one. See ALJ Decision and Order at 6-17. Because
the facts relied upon by the ALJ are amply supported by the record,
and the inferences drawn by him are reasonable, we are constrained
to defer to the ALJ’s assessment of the hearing tests. That
reasoning was aptly spelled out in the BRB Opinion, which related
the following:
Ultimately, having taken into account the following
factors: 1) claimant had not been exposed to noise for
five days before the test, thus eliminating concerns of
a temporary threshold shift; 2) tests which confirmed the
accuracy of the audiogram, including speech
discrimination, speech reception and bone conduction,
were performed; 3) the experts agreed that Dr. Jacobson’s
audiogram was the most accurate; and 4) Dr. Jacobson’s
audiogram meets the requirements of a presumptive
audiogram under the [LHWCA],3 the [ALJ] concluded that
Dr. Jacobson’s audiogram is the most credible and
reliable. [ALJ] Decision and Order at 17. In finding
the Taylor Made audiogram to be less reliable, the [ALJ]
considered that this test was not interpreted and
certified by a licensed or certified audiologist or
otolaryngologist; that claimant had worked, and had been
exposed to loud noise, four to five and one-half hours
prior to testing,4 that additional testing to confirm the
audiogram was not performed, and that the experts agreed
3
An audiogram provides presumptive evidence of the extent of
a claimant’s hearing loss if certain conditions are met. BRB
Opinion at 4-5 n.3 (citing 33 U.S.C. §908(c)(13); 20 C.F.R.
§702.441(b); Steevens v. Umpqua River Navigation, 35 BRBS 129, 133
n.6 (2001)). In this proceeding, the parties have stipulated that
the Jacobson audiogram meets the requirements of a presumptive
audiogram. See id. (citing ALJ Decision and Order at 3).
4
The ALJ observed that an employee being tested should be away
from noise for a period longer than four to five and one-half hours
prior to an audiogram being conducted. BRB Opinion at 5 n.4
(citing ALJ Decision and Order at 15-16). Specifically, the ALJ
relied on the expert opinions of Drs. Jacobson, Hecker, and Lee in
concluding that a tested employee should not be exposed to noise
for a period of at least 24 hours prior to his audiogram. Id.7
that the Taylor and Jacobson audiograms, although
similar, are not within the values for test/retest
reliability. See [ALJ] Decision and Order at 11-17.
BRB Opinion at 5-6. According proper deference to the ALJ’s
factual finding — that the Jacobson audiogram was determinative —
we readily conclude there is substantial evidence to support it.
We therefore sustain the BRB Opinion affirming the ALJ Decision and
Order of the ALJ, and we are content to affirm on its reasoning.
Perry v. Universal Maritime Servs., No. 03-0468 (BRB Apr. 6, 2004)
(unpublished); Perry v. Ceres Marine Terminals, No. 2001-LHC-1909
(Dep’t Labor Mar. 17, 2003).
IV.
Pursuant to the foregoing, we affirm the decision set
forth in the BRB Opinion.
AFFIRMED
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