BRB No. 00-0503
JAHTENNEY LEDA )
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Claimant-Petitioner )
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v. )
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WILMINGTON STEVEDORES ) DATE ISSUED: 02/02/2001
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and )
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U.S. FIRE INSURANCE COMPANY )
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Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Ainsworth H. Brown,
Administrative Law Judge, United States Department of Labor.
Aloysius J. Staud (Fine and Staud), Philadelphia, Pennsylvania, for
claimant.
Josh M. Greenbaum (Cozen and O'Connor), Philadelphia, Pennsylvania, for
employer/carrier.
Before: SMITH and McATEER, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits of Ainsworth H. Brown
(99-LHC-1281) rendered on a claim filed pursuant to the provisions of the Longshore
and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et
seq. (the Act). We must affirm the findings of fact and conclusions of law
of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law. O'Keefee v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. S359 (1965); 33 U.S.C. §921(b)(3).
Claimant, a diesel mechanic, alleged that he suffered a work-related hearing
loss, as evidenced by an audiogram performed on March 3, 1997, which revealed an
11.6 percent binaural hearing loss. In his Decision and Order, the
administrative law judge determined that claimant's claim is not barred by
claimant's failure to give timely notice of his injury pursuant to Section 12 of
the Act, 33 U.S.C. §912, inasmuch as employer did not establish the lack of
timely notice resulted in prejudice to it. See 33 U.S.C. §912(d). The
administrative law judge found that claimant was entitled to invocation of
the presumption pursuant to Section 20(a) of the Act, 33 U.S.C.
§920(a), that his hearing loss is work-related, but that employer
established rebuttal of the presumption. Weighing the evidence as a whole,
the administrative law judge credited the opinion of Dr. Sataloff over the
contrary opinions of Drs. Robinson and Valdes, to find that claimant's
hearing loss is not work-related. Thus, the administrative law judge denied
benefits.
On appeal, claimant challenges the administrative law judge's denial of
benefits, contending that the administrative law judge erred in crediting
the opinion of Dr. Sataloff over those of Drs. Robinson and Valdes.
Employer responds, urging affirmance.
Once claimant shows he has a physical harm and that working conditions
existed which could have caused the harm, the Section 20(a) presumption
applies to link the harm to claimant's employment. The burden then shifts
to employer to produce substantial evidence that claimant's injury is not
work-related. See Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS
59 (CRT) (5th Cir. 1998); Swinton v. Frank J. Kelly, Inc., 554 F.2d
1075, 4 BRBs 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). When
employer produces such substantial evidence, the presumption drops out of
the case, and the administrative law judge must weigh all the evidence as
a whole, with claimant bearing the burden of persuasion. See Del
Vecchhio v. Bowers, 296 U.S. 290 (1935); Universal Maritime Corp. v. Moore,
126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see generally Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
In the instant case, the administrative law judge invoked the Section
20(a) presumption, and found it rebutted by the opinion of Dr. Sataloff.
In weighing the evidence as a whole, the administrative law judge credited
Dr. Sataloff's opinion, finding it to be the best reasoned opinion of
record. Decision and Order at 5. Dr. Sataloff stated that claimant's
hearing loss was neither initiated nor caused by his occupational noise
exposure. EX 18. He further stated that it is "impossible" that the kind
of work exposure claimant had caused claimant's hearing loss. EX 20 at 16.
Dr. Sataloff stated that claimant's noise exposure was intermittent due to
his absences from the work force, and that the type of machinery on which
claimant worked did not produce sufficient noise at consistently harmful
decibel levels. Id. at 14-15, 19. He also stated that claimant's
hearing loss was not symmetrical as would be expected with a noise-induced
hearing loss. Id. at 18-19.
The administrative law judge discussed the contrary opinions of Drs.
Robinson and Valdes, both of whom referred to claimant's hearing loss as
"noise-induced." EX 1, 19. He gave less weight to their opinions, however,
as they did not discuss the intermittent nature of claimant's work history
or inquire about the degree of the noise exposure while claimant was
working. The administrative law judge further relied on Dr. Sataloff's
superior credentials.[1] In adjudicating
a claim, it is well established that an administrative law judge is entitled
to weigh the evidence, and is not bound to accept the opinion or theory of
any particular medical examiner; rather, the administrative law judge may
draw his own inferences and conclusions from the evidence. See Calbeck
v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300
F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961); Duhagon v. Metropolitan Stevedore Co., 31 BRBS 98,
aff'd, 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999). Contrary to
claimant's contention, the fact that Dr. Sataloff did not state what the
cause of claimant's hearing loss is does not undermine his opinion. See
generally O'Kelley v. Dep't of the Army/NAF, 34 BRBS 39
(2000). Rather, once Section 20(a) is rebutted, it is claimant's
burden to establish that his hearing loss is work-related by a preponderance
of the evidence. See Santoro v. Maher Terminals, Inc., 30 BRBS 171
(1996). In the instant case, the administrative law judge's decision to
credit the opinion of Dr. Sataloff over the contrary opinions of Drs.
Robinson and Valdes is rational, and as Dr. Sataloff's opinion supports the
administrative law judge's conclusion that claimant's hearing loss is not
work-related, we affirm the administrative law judge's denial of benefits.[2] Coffey v. Marine Terminals Corp.,
34 BRBS 85 (2000).
Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
J. DAVITT McATEER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) 1The administrative law judge law judge found that
Dr. Sataloff's credentials show that he is a preeminent expert in the field
of occupational hearing loss, but that the credentials of Drs. Robinson and
Valdes had not been supplied for the record. Dr. Sataloff's professional
background includes service as a committee member in the writing of the
work-place noise exposure standards by the Occupational Safety and Health
Administration, and he is the current chairman of the American Medical
Association (AMA) committee responsible for determining the AMA formulas for
hearing loss. EX 20 at 7-8. The administrative law judge inferred from the
stationery of Dr. Valdes that he is an otolaryngologist. See EX
19.
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2)Contrary to claimant's contention, the fact that the administrative law judge did not
discuss claimant's testimony in relation to the causation finding is not error in this case, as he sufficiently
discussed and weighed the medical evidence as to the cause of claimant's hearing loss.
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NOTE: This is an UNPUBLISHED LHCA Document.
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