John Schiessl v. Georgia-Pacific Corp

FILED
NOT FOR PUBLICATION MAR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN E. SCHIESSL, No. 12-72909
Petitioner, BRB No. 11-0671
v.
MEMORANDUM*
GEORGIA-PACIFIC CORPORATION;
ACE AMERICAN INSURANCE
COMPANY, AKA Sedgwick CMS;
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted March 6, 2014
Portland, Oregon
Before: GOODWIN, TROTT, and W. FLETCHER, Circuit Judges.
John E. Schiessl petitions for review of the Benefits Review Board’s order
affirming the denial of partial permanent disability benefits for Schiessl’s hearing
loss. We have jurisdiction under 33 U.S.C. § 921(c), and we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
To rebut the presumption that Schiessl’s hearing loss was compensable,
Georgia-Pacific Corp. was required to present “substantial evidence that is
‘specific and comprehensive enough to sever the potential connection between the
disability and the work environment.’” Haw. Stevedores, Inc. v. Ogawa, 608 F.3d
642, 651 (9th Cir. 2010) (quoting Ramey v. Stevedoring Servs. of Am., 134 F.3d
954, 959 (9th Cir. 1998)); see also 33 U.S.C. § 920. We agree with the Board that
Georgia-Pacific satisfied its burden of production. Dr. Hodgson’s review of the
noise studies combined with his interpretation of Schiessl’s audiogram results
sufficiently supported his conclusion that Schiessl ceased encountering injurious
levels of occupational noise before his hearing loss qualified as an impairment
under the Longshore and Harbor Workers Compensation Act. Taken as a whole,
Dr. Hodgson’s opinion “could satisfy a reasonable factfinder that [Schiessl’s
hearing loss] was not work-related.” Ogawa, 608 F.3d at 651.
Moreover, the administrative law judge concluded after weighing all the
evidence in the case that work-related noise did not contribute to Schiessl’s hearing
loss after December 1, 1999. “[H]is decision as to the weight of the evidence may
not be disturbed by the court.” See Schwirse v. Dir., Office of Workers’ Comp.
Programs, 736 F.3d 1165, 1172 (9th Cir. 2013) (quoting Del Vecchio v. Bowers,
296 U.S. 280, 287 (1935)).
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This conclusion also distinguishes Schiessl’s case from Port of Portland v.
Dir., Office of Workers’ Comp. Programs, 932 F.2d 836 (9th Cir. 1991). The
claimant in Port of Portland introduced evidence that his occupational hearing loss
combined with his age-related hearing loss to produce an impairment. Id. at 838-
39. Schiessl, on the other hand, ceased encountering injurious levels of noise
before his hearing loss qualified as an impairment. This is significant because
“loss of hearing[] occurs simultaneously with the exposure to excessive noise[,
and] the injury is complete when the exposure ceases.” Bath Iron Works Corp. v.
Dir., Office of Workers’ Comp. Programs, 506 U.S. 153, 165 (1993). Thus,
occupational noise no longer factored into Schiessl’s hearing loss after December
1, 1999.
PETITION DENIED.
3