Jones Stevedoring Company v. August Paglia , 454 F. App'x 603 ( 2011 )

FILED
**
NOT FOR PUBLICATION OCT 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JONES STEVEDORING COMPANY, No. 10-72736
Petitioner, BRB No. 10-0273
v.
MEMORANDUM *
AUGUST PAGLIA; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted October 14, 2011
Portland, Oregon
Before: EBEL, BERZON, and N.R. SMITH, Circuit Judges.
August Paglia filed a claim under the Longshore & Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C. § 900 et seq., for occupational hearing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
loss related to his employment as a stevedore at Jones Stevedoring Company
(Jones). The ALJ ruled that Paglia established a prima facie claim for occupational
hearing loss and was thus entitled to a presumption in favor of compensability
pursuant to 33 U.S.C. § 920(a). Jones has not contested that determination. The
ALJ further concluded that Jones produced sufficient evidence to overcome the
presumption. The Benefits Review Board (the Board), however, reversed on that
point, holding that Jones did not rebut the § 20(a) presumption, and remanded for
resolution of remaining issues. We affirm.
1. Jones contends that the Board exceeded its authority by reviewing the
evidence de novo. The inquiry into whether an employer has produced sufficient
evidence to rebut the § 20(a) presumption is, however, a legal judgment subject to
plenary review by the Board. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642,
651 (9th Cir. 2010) (citing Bath Iron Works Corp. v. Fields, 599 F.3d 47, 54-55
(1st Cir. 2010)). The Board therefore did not exceed its authority by reviewing the
ALJ’s decision de novo.
2. Jones alternatively contends that the Board erred in holding that Jones did
not produce substantial evidence to rebut the § 20(a) presumption. To rebut that
presumption, an employer must produce substantial evidence that is specific and
comprehensive enough to sever the connection between an employee’s disability
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and the conditions of his employment. Id. Where the conditions of covered
employment aggravate or accelerate a claimant’s pre-existing condition, the
aggravation rule renders the last covered employer liable for the entire resulting
disability. See Port of Portland v. Dir., OWCP, 932 F.2d 836, 839-40 (9th Cir.
1991). Thus, to rebut the § 20(a) presumption, Jones had to produce specific and
comprehensive evidence tending to show that Paglia’s covered employment did not
cause or contribute to his hearing loss.
The Board correctly determined that the circumstantial and negative
evidence produced by Jones, and relied upon by the ALJ, did not satisfy this
standard. First, Jones’s circumstantial evidence of alternative sources for Paglia’s
hearing loss does not respond to the § 20(a) presumption. The existence of
alternative sources of hearing loss is not inconsistent with the proposition that the
conditions of Paglia’s employment contributed to his hearing loss. See Cordero v.
Triple A Mach. Shop, 580 F.2d 1331, 1335 (9th Cir. 1978).
Second, Jones’s negative evidence – the medical and audiological experts’
testimony that Paglia’s hearing loss might be attributable entirely to non-
employment-related sources – is too speculative to rebut the § 20(a) presumption.
See Bath Iron Works, 599 F.3d at 56-57 (citing Wheatley v. Adler, 407 F.2d 307,
313 (D.C. Cir. 1968) (en banc)).
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Third, that Paglia and his wife did not notice any significant hearing
problems until several years after Paglia’s retirement is not, by itself, sufficient to
rebut the § 20(a) presumption. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075,
1084 & n.52 (D.C. Cir. 1976); cf. Pedroza v. BRB, 624 F.3d 926, 929 n.2 (9th Cir.
2010) (citing Swinton’s explication of the rebuttal standard).
In the end, the circumstantial and negative evidence, taken as a whole,
cannot overcome the § 20(a) presumption. Jones did not produce any specific and
comprehensive evidence severing the link between Paglia’s hearing loss and the
conditions of his employment (e.g., that Paglia’s employment was not noisy).
Compare Haw. Stevedores, 608 F.3d at 650-51(holding that an employer produced
sufficient evidence to rebut a claimant’s prima facie claim where the employer
produced specific evidence that the claimant’s job was not stressful).
Because Jones failed to produce specific and comprehensive evidence
severing the connection between Paglia’s covered employment and his hearing
loss, the Board properly held that Jones did not rebut the § 20(a) presumption.
AFFIRMED.
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