Avondale Industries, Inc. v. Director, Office of Workers' Compensation Programs ( 1992 )

United States Court of Appeals,
Fifth Circuit.
No. 91–4905.
AVONDALE INDUSTRIES, INC., Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States
Department of Labor and Wilton J. Cuevas, Respondents.
Nov. 16, 1992.
Petition for review of an order of Benefits Review Board.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON, District Judge.**
HARMON, DistricJudge:
Petitioner Avondale Industries, Inc. challenges a final order of the Benefits Review Board,
affirming an Administrative Law Judge's finding that Avondale Industries, Inc. is responsible for
Respondent–Claimant Wilton J. Cuevas' compensation for occupational hearing loss under the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. Specifically the
employer argues that the Administrative Law Judge and the Benefits Review Board misapplied the
rule that the last maritime employer to expose a claimant to injurious stimuli before the claimant
became aware of his impairment is the responsible party. Because we find that there is no error of
law and because the record supports the Board's determination that the Administrative Law Judge's
findings were based on substantial evidence, we AFFIRM.
I. Factual and Procedural History
From 1960–1967, when he was employed as a welder and crane operator for Avondale
Indust ries, Inc. ("Avondale"), Wilton J. Cuevas ("Cuevas") was continually exposed five to seven
days a week to injurious noise emitted from chipping hammers, chains, and fitters in the workplace.
Subsequently, in 1971 Cuevas worked as a stevedore at Sealand Terminal Corporation ("Sealand")
for three to four weeks, between two to six hours a day, unloading bananas from a conveyor belt,
*
District Judge of the Southern District of Texas, sitting by designation.
occasionally near a forklift that would remove the bananas from the dock area. On September 23,
1986, an audiogram performed on Cuevas by Dr. Thomas Graves revealed a 20.3 percent binaural
sensorineural hearing loss, which Graves concluded was noise-induced. Report, Cuevas' Exh. # 3 in
Apr. 7, 1989 hearing before ALJ. On April 2, 1987, Cuevas filed a claim against Avondale for
occupational hearing loss pursuant to the Longshore and Harbor Workers' Co mpensation Act
("LHWCA"), 33 U.S.C. §§ 901 et seq. A second audiogram on September 28, 1988, administered
by Dr. Gordon Lee Stanfield, reflected a 16.8 percent hearing loss in the left ear, a 61.88 percent
impairment of the right ear, of which 16.8 percent was attributed to occupational noise exposure, and
a 24.31 percent overall binaural hearing loss. Following a hearing, in a Decision and Order dated
September 18, 1989 (Rec., Vol. I, 32–38, repeated 62–68), an Administrative Law Judge ("ALJ")
found that the two audiograms demonstrated a work-related hearing loss that met the requirements
for compensation under 33 U.S.C. § 908(c)(13). The ALJ then averaged the 20.3 percent binaural
impairment found by Dr. Graves and the 16.8 percent found by Dr. Stanfield and concluded that
Cuevas had an 18.55 percent binaural hearing loss. The ALJ further found that Avondale failed to
prove that Cuevas was exposed to injurious noise during his subsequent employment at Sealand and
that Avondale was the employer responsible for compensation to Cuevas.
On appeal, Cuevas challenged the ALJ's calculation of compensable impairment, while
Avondale cross-appealed the determination that it was the responsible employer. Rec., Vol. I, 2–5.
In a September 23, 1991 Decision and Order, the Benefits Review Board ("Board") found that the
ALJ erred in failing to apply the aggravation rule1 when he determined what percentage of Cuevas'
hearing loss was compensable. Moreover, the Board modified the award based on its established rule
that an award for occupational, noise-induced hearing loss must be based on a binaural assessment.
Thus the Board concluded that the ALJ should have used Dr. Stanfield's figure of 24.31 percent
binaural impairment, rather than the 16.8 percent for one year. It recalculated the appropriate award
by averaging the correct figures (20.3 percent and 24.31 percent) for a determination of 22.3 percent
1
The aggravation rule allows a claimant compensation for his entire hearing loss where
work-related acoustic trauma aggravates or combines with a prior hearing impairment. See, e.g.,
Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986) (en banc).
binaural impairment. This ruling has not been appealed.
Otherwise the Board2 found that there was substantial evidence in the record to support the
ALJ's decision and that it was reasonable. It therefore affirmed the finding that Cuevas was not
exposed to injurious stimuli while he wo rked at Sealand and that Avondale was the maritime
employer responsible for compensation.
Contesting the finding of its responsibility for compensation, Avondale filed a timely petition
for review by this Court under 33 U.S.C. § 921(c).
II. Discussion
(A) Standard of review
This Court's review is limited to determining whether the Board's decision correctly
concluded that the ALJ's order was "supported by substantial evidence on the record as a whole and
is in accordance with the law." Odom Construction Company v. United States Department of Labor,
622 F.2d 110, 115 (1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981),
quoting Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir.1978) "Substantial
evidence is evidence that provides "a substantial basis of fact from which the fact in issue can be
reasonably inferred ... more than a scintilla ... more than create a suspicion ... such relevant evidence
as a reasonable mind might accept as adequate to support a concl usion.' " Diamond, 577 F.2d at
1006, quoting NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299–300, 59 S.Ct.
501, 504–505, 83 L.Ed. 660 (1939). The substantial evidence standard is less demanding than that
of preponderance of the evidence, and the ALJ's decision need not constitute the sole inference that
can be drawn from the facts. Id. As fact finder, the ALJ determines questions of credibility of
witnesses and of conflicting evidence. He is not required to accept the opinion or theory of a medical
expert that contradicts the ALJ's findings based on common sense. Atlantic Marine v. Bruce, 661
2
"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).
The Board must accept the ALJ's findings unless they are contrary to law, irrational, or
unsupported by substantial evidence. Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1011
(5th Cir.) (citing Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028(1947)), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613 (1981).
F.2d 898, 900 (5th Cir.1981).
(B) Relevant Law
Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913,
76 S.Ct . 196, 100 L.Ed. 800 (1955), established the "last employer rule" for determining under
LHWCA which maritime employer is responsible for payment of the full amount of benefits awarded
as compensation to claimants for occupational diseases, including noise-induced hearing loss:
Congress intended that the employer during the last employment in which the claimant was
exposed to injurious stimuli, prior to the date upon which the claimant became aware of the
fact that he was suffering from an occupational disease arising out of his employment, should
be liable for the full amount of the award.
See also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir.) (applying Cardillo 's last
employer rule), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613 (1981); Argonaut
Insurance Company v. Patterson, 846 F.2d 715, 719 (11th Cir.1988) (stating that prior to the split
of the 5t h and 11th Circuits, the Circuit adopted the last employer rule in Fulks ). This rule was
created to avoid the difficulties and delays in administration which would result if courts attempted
to apportion liability among multiple employers. Cardillo, 225 F.2d at 145. Moreover "[t]he nature
of occupational diseases ... makes it exceedingly difficult, if not practically impossible, to correlate
the progression of the disease with specific points in time or specific industrial experiences."
Cardillo, 225 F.2d at 144.
In Susoeff v. The San Francisco Stevedoring Co., 19 BRBS 149, 1986 WL 66392 at *2
(Ben.Rev.Bd. Nov. 28, 1986), the Board stated, "The last employer rule is not a rule of
compensability. Rather, it is a judicially created rule for allocating liability among employers in cases
where an occupational disease develops after prolonged exposure." Thus a claimant does not have
to prove that his employer is liable. Once he has demonstrated a prima facie entitlement to benefits
by showing that he "sustained physical harm and that conditions existed at work which could have
caused the harm," he has established his "exposure to injurious stimuli during employment covered
under the [LHWCA], and there exists a compensable claim. Employer can then rebut this
presumption by showing that exposure to injurious stimuli did not cause the harm.... [or] that
employee was exposed to injurious stimuli while performing work covered under the [LHWCA] for
a subsequent employer" (citations omitted). Id. See also General Ship Service v. Director, Office
of Workers' Compensation Programs, 938 F.2d 960, 961 (9th Cir.1991) (applying Susoeff ).
The Fifth Circuit has further held that, regardless of the brevity of the exposure, if it has the
potential to cause disease, it is considered injurious. Fulks, 637 F.2d at 1012 (refusing to set de
minimis standards for duration of exposure).
Avondale's counsel contended at oral argument that its burden of proof to show a potentially
injurious environment under a subsequent, maritime employer is "featherweight," like the claimant's
in establishing a prima facie case. He provided no legal authority for his stance. This Court finds
no policy underlying the last causative employer rule to justify lightening Avondale's burden to rebut
the presumption that it is liable. If anything, the rule is designed to insure that an injured worker is
compensated without delays and without administrative difficulties, not to protect employers. Indeed,
although the shifting burden of proof provides the employer with an opportunity to safeguard its
interests, the rule can operate inequitably where the claimant worked only a minimal time for the last
covered employer.
(C) Application
The issue before this Court is whether the Board correctly determined that the ALJ did not
err in finding that Avondale failed to meet its burden of proof.
The parties stipulated that Cuevas suffered a hearing loss because of workplace noise and that
Cuevas became aware of his injury during the first audiogram on September 23, 1986, substantially
after his employment by both Avondale and Sealand. Avondale, against which Cuevas filed his claim,
does not contest Cuevas' exposure to injurious noise at its workplace. At issue before the ALJ was
whether Cuevas was exposed to injurious noise at Sealand, his last covered employer covered by the
LHWCA. If not, Avondale is responsible for his compensation.
The ALJ ruled that Avondale did not satisfy its burden of proof to rebut the presumption that
it was the responsible employer because it did not show subsequent injurious exposure at Sealand.
The ALJ found t hat the only evidence offered by Avondale, the post-hearing deposition of Dr.
Stanfield, was too speculative and thus o f little weight. Since by stipulation Cuevas established a
prima facie case, the burden shifted to Avondale to show that Sealand, as a subsequent employer
covered by LHWCA, exposed Cuevas to injurious noise and is therefore liable for his compensation.
At the hearing on April 7, 1989, Cuevas testified that the noise at Avondale's shipyard was
so loud that "you couldn't hardly hear yourself talk." Rec., Vol. II, 8. In contrast, he described the
noise environment at Sealand as "just like around town, standing on a corner...." Id. at 10. His job
was to take bananas off a little conveyor belt, made mostly of rubber, and to load them onto another
man's back. Id. at 12–13, 15, 16. He did not operate a forklift, crane, or other equipment at Sealand.
Id. at 12, 16. Occasionally forklifts and machinery came by, and the men would take their load of
bananas about twenty-five yards and set them down. Id. at 14. No material was offloaded from the
boats by crane. Id.
After Cuevas filed his claim, Avondale sent him to Dr. Stanfield for another audiogram. Rec.
Vol. II, 17. Subsequently Cuevas' claim was presented to the ALJ. As its only evidence to rebut the
presumption of its liability, Avondale submitted, with approval of the ALJ, a transcript of Stanfield's
post-hearing deposition. During that deposition, Avondale's attorney asked Stanfield to respond to
a hypothetical question conditioned on some suggestively worded and unsubstantiated assertions
about Sealand's workplace:
Doctor, if I was to tell you that Mr. Cuevas has testified at the trial3 of his case in 1971, which
would have been after he worked for Avondale, that he worked for Sea–Land Terminal
Corporation in Gulfport, and worked there for a minimal period of time for the quarter April
to June, and then worked another week or so for the quarter July to September of that year,
again 1971, that in that employment he worked as a stevedore unloading bananas off of ships
that came into the Gulfport facility, that in that job he worked more or less on a conveyor belt
where the conveyor would go into the hold of the ship, bananas would then be placed on the
conveyor belt, then come out of the hold of the ship onto the dock, where Mr. Cuevas would
take bananas as they came from the conveyor belt, take them off of the conveyor belt, and
either put them on someone's shoulder, another stevedore, or would put them on a pallet for
the forklift, that he worked on the dock, that there were forklifts that were involved in his
employment, that he came in contact with these forklifts on a regular basis, and was involved
with this conveyor system that went into the hol d of the ship in order to transport the
bananas, knowing that he worked around forklifts, ships, conveyor belts, and the normal
noises that one would associate with dock activity, do you feel that he was exposed during
that employment to high levels of noise or dangerous levels of noise, that is sufficient enough
to cause hearing loss?
3
At the close of the April 7, 1989 hearing, the ALJ allowed Avondale to keep the record open
to take Dr. Stanfield's deposition, which occurred on May 23, 1989.
Complete transcript of Dr. Stanfield's May 23, 1989 deposition ("Dep."), pp. 21–23.
Dr. Stanfield did not hear or review Cuevas' actual testimony at the April 7, 1989 hearing;
the hypothetical question, which exaggerated Cuevas' stated contact with forklifts and implies the
dock area and conveyor system were noisy, was Stanfield's sole guide to alleged conditions of
Cuevas' employment at Sealand. A visit to the premises, eighteen years after the time in issue, was
not likely to be probative.
Stanfield answered the question with a further inaccuracy about the legally irrelevant duration
of the Sealand job and with emphasis on the limited picture provided to the audiologist:
Within the confines of what you have given me there of approximately six months, from what
I gather, probably, on and off, and the equipment of forklifts or tow motors, conveyor
systems, I would without any other information feel like there was probably potentially
hazardous noise in the environment.
I have not measured the specifics that you said or t he particular environment. I have take
measures on forklifts in other environments, and I would probably be basing it primarily on
that information, and I have measured them at greater than eighty-five, eighty-five to possibly
eighty-eight db levels, and I feel like at that point you are becoming into [sic ] a hazardous
noise area.
Dep. at 23–24. He further stated that "the forklift itself measures generally over eighty-five. The
backup warning devices, which are generally required on them go even higher...." Id. at 26.
On cross-examination, Stanfield admitted that he had never seen any dosimeter studies that
might have been performed on Sealand's equipment or work areas. Id. at 25. Moreover in response
to the critical question, "Wouldn't it be important to know how close the patient was to the
forklifts?," Stanfield answered, "Well, the most desirable one would have been to have full sound
recordings and dosimeters, yes. Certainly." Id. at 27. Although Avondale had the burden of proof,
its counsel never asked Cuevas how near to the forklifts he had worked. Finally, when Stanfield was
asked if he had any reason to disbelieve Cuevas' testimony that the noise at Sealand was not unusually
loud, Stanfield replied, "No. A forklift is not a terribly loud device." Id. at 28.
We find reasonable and substantially supported by the record the ALJ's decision to believe
Cuevas' testimony of personal experience over Stanfield's theoretical response to a hypothetical
question of dubious accuracy and completeness.
The Director of the Office of Workers' Compensation Programs has asked the Court to issue
a procedural rule mandating the joinder of any alleged, subsequent causative employer before the
ALJ. Because the Court upholds the decision of the Board here, that request is not relevant to this
case. Moreover we consider this issue to be more appropriately addressed to the agency or the ALJ.
Accordingly, we AFFIRM the Board's decision.