Tanner v. Ingalls Shipbuilding, Inc. ( 1993 )

United States Court of Appeals,
Fifth Circuit.
Nos. 92-4974, 92-5003 and 92-5034.
Caylor TANNER, and Director, Office of Workers' Compensation Programs, U.S. Department of
Labor, Petitioners,
v.
INGALLS SHIPBUILDING, INC., Respondent.
Adolphus LEE, and Director, Office of Workers' Compensation Programs, U.S. Department of
Labor, Petitioners,
v.
INGALLS SHIPBUILDING, INC., Respondent.
Norman WITTNER, and Director, Office of Workers' Compensation Programs, U.S. Department
of Labor, Petitioners,
v.
INGALLS SHIPBUILDING, INC., Respondent.
Sept. 21, 1993.
Petitions for Review of an Order of the Benefits Review Board.
Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge.
LITTLE, District Judge:
The issue common to each appellant is whether occupational hearing loss claimants under the
Longshoremen's and Harbor Workers' Compensation Act (the Act) are required to have their hearing
disabilities compensated under subsection (A) or subsection (B) of 33 U.S.C. § 908(c)(13). Finding
that subsection (A) is the applicable portion of the Act, we reverse the administrative decisions of the
Benefits Review Board.
FACTS
This appeal represents the consolidation of three similar claims that arose under the Act. In
each case, the claimant was an employee of the appellee, Ingalls Shipbuilding, Inc. (Ingalls), and
*
District Judge of the Western District of Louisiana, sitting by designation.
suffered an employment related hearing loss. As a result of hearing tests performed on the claimants,
each was diagnosed as having zero percent impairment in one ear and measurable impairment in the
other ear. Each claimant filed for compensation benefits under the Act and was accorded a hearing
before an administrative law judge (ALJ).
In two of the cases (Tanner and Wittner), the ALJ recognized that the claimants had
impairment in only one ear (monaural impairment) but concluded t hat compensation should be
calculated as impairment in both ears (binaural impairment), in accordance with 33 U.S.C. §
908(c)(13)(B). The Benefits Review Board (the Board) affirmed this approach. In the remaining
case (Lee), the same ALJ awarded compensation on the basis of a monaural impairment in
accordance with 33 U.S.C. § 908(c)(13)(A), and the Board reversed this decision.
STANDARD OF REVIEW
This court reviews decisions of the Benefits Review Board for errors of law and adherence
to the substantial evidence standard that governs the Board's review of the ALJ's factual
determinations. Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984). Generally, the
Director's interpretation of the Act is entitled to deference. Boudreaux v. American Workover, Inc.,
680 F.2d 1034, 1046 (5th Cir.1982). But, no deference will be given to an administrative
interpretation of a statute that is contrary to the plain meaning of its language. Nicklos Drilling Co.
v. Cowart, 927 F.2d 828, 831 (5th Cir.1991).
THE LANGUAGE OF THE ACT
The pertinent part of section 908 states:
§ 908. Compensation for disability
Compensation for disability shall be paid to the employee as follows:
******
(c) Permanent partial disability: In case of disability partial in character but permanent in
quality the compensation shall be 662/3 per centum of the average weekly wages, ... and shall
be paid to the employee, as follows:
******
(13) Loss of hearing:
(A) Compensation for loss of hearing in one ear, fifty-two weeks.
(B) Compensation for loss of hearing in both ears, two-hundred weeks.
******
(E) Determinations of loss of hearing shall be made in accordance with the
guides for the evaluation of permanent impairment as promulgated and
modified from time to time by the American Medical Association.
33 U.S.C.S. § 908 (1980 & Supp.1993).
During the administrative proceedings Ingalls argued, and the Board agreed, that subsection
908(c)(13)(E) requires monaural hearing impairments be converted to binaural hearing percentages
pursuant to the American Medical Association's Guides for the Evaluation of Permanent Impairment
(AMA Guides). The pertinent part of the AMA Guides reads:
Binaural hearing impairment is determined using the following formula:
5 × 7 hearing 7 hearing
Binaural Hearing impairment + impairment
Impairment (%) = of better ear of poorer ear
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A purely monaural hearing impairment should be converted to binaural hearing impairment
for the better ear.
It was this conversion to binaural hearing impairment that caused each claimant to be
compensated under § 908(c)(13)(B) rather than § 908(c)(13)(A), and in each instance, this
conversion resulted in a smaller award than the claimant would have received if § 908(c)(13)(A) had
been applied.
INTERPRETATION OF THE STATUTE
In its three-two opinion in Tanner, the Board stated that in the 1984 amendments to the Act,
Congress specified that hearing loss determinations are to be made in accordance with the current
AMA Guides, and the Guides require that monaural impairment should be converted to binaural
impairment. It was the Board's conclusion that Congress intended to treat the question of impairment
as a medical issue rather than a legal issue. The Board further stated that this does not read §
908(c)(13)(A) out of the statute as subsection (A) still applies when a claimant suffers a traumatic
injury to one ear that results in a loss of hearing in that ear.
Although this is a case of first impression for this circuit, the Second and Fourth Circuits have
dealt with cases directly on point. The Fourth Circuit found that the interpretation of the Board runs
afoul of the basic principal that a statute must not be interpreted to render a portion of the statute
meaningless. It was the Fourth Circuit's opinion that the Board had effectively read subsection (A)
out of the statute because neither the legislative history nor the statute provided any basis for the view
that subsection (A) was limited to cases in which hearing loss was caused by traumatic injury. Garner
v. Newport News Shipbuilding and Dry Dock Company, 1992 WL 29281, *2, 1992 U.S.App. LEXIS
2327, *5 (4th Cir.1992). In addition, the Fourth Circuit noted it could find no logical reason for
compensating monaural hearing losses differently depending on their cause. Id.
The Fourth Circuit went on to state that it could find "no irreconcilable conflict between the
statute's directive that monaural losses be compensated according to the criteria of subsection (A) and
the directive of subsection (E) that determinations of hearing loss be made in accordance with the
Guides." Id. The Fourth Circuit viewed the Guides as providing the method employed under the Act
for measuring hearing loss, while the statute provides a formula for determining how the loss will be
compensated. Id., 1992 WL 29281 at *2, 1992 U.S.App. LEXIS 2327 at *5-6.
The Second Circuit found the Board's reading of the statute "untenable" stating:
Although the AMA Guides recommend that monaural loss be converted to binaural loss, just
as the Guides recommend that "all impairments should be expressed as impairments of the
whole person," this suggestion does not override the explicit statutory subsection providing
benefits for the victims of monaural hearing loss.... The statute, which serves as our
touchstone, provides for monaural loss. In light of the statutory directive, we do not believe
Congress intended to compensate only for binaural loss.
Rasmussen v. General Dynamics Corp., Elec. Boat Div., 993 F.2d 1014, 1017 (2nd Cir.1993).
We agree with the reasoning of our sister circuits. Both the Second and the Fourth Circuit
conclude that the plain language of the statute provides subsection (E) should be used as a guide for
determining the amount of loss, while subsection (A) should be used to determine how this loss
should be compensated. Therefore, we do not find an irreconcilable conflict between subsections (A)
and (E), and we note that if there was such a conflict, subsection (A) would prevail over the AMA
Guides referred to in subsection (E) as it was clearly the intent of Congress that monaural impairment
should be compensated according to the specific language of subsection (A).
All three claimants had a measurable hearing loss in only one ear. The statute clearly states
that compensation under subsection (A) is for "loss of hearing in one ear " while subsection (B) is
for "loss of hearing in both ears." 33 U.S.C. § 908(c)(13)(A) and (B) (emphasis added). In addition,
subsection (C) provides that an audiogram shall be presumptive evidence of the amount of hearing
loss. 33 U.S.C. § 908(c)(13)(C). Therefore, because it is undisputed that the results of an audiogram
performed on each claimant showed a zero percent hearing impairment in one ear and measurable
impairment in the other, each claimant should be compensated for loss of hearing in one ear as set
forth in subsection (A).
Accordingly, the decision of the Benefits Review Board is reversed as to all three claimants
and the claimants' compensation shall be calculated in accordance with 33 U.S.C. § 908(c)(13)(A).
Our judgment as to each claimant is as follows:
Adolphus Lee: The decision of the Board is reversed and the award granted by the
administrative law judge is reinstated.
Caylor Tanner: The decision of the Board is modified to compensate the claimant for
monaural hearing impairment of 4.65 percent pursuant to 33 U.S.C. § 908(c)(13)(A),
resulting in compensation to claimant Tanner for 2.42 weeks.
Norman Wittner: The decision of the Board is modified to award the claimant for monaural
hearing impairment of 10.4 percent pursuant to 33 U.S.C. § 908(c)(13)(A), resulting in
compensation to claimant Wittner for 5.41 weeks.
REVERSED.