133 F.3d 683 (9th Cir. 1997), 96-70984, Jones Stevedoring Co. v. Director, Office of Workers' Compensation Programs

Docket Nº:96-70984.
Citation:133 F.3d 683
Party Name:D.A.R. 35 JONES STEVEDORING CO., Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Kenneth I. Taylor; U.S. Department of Labor, Respondents.
Case Date:December 31, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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133 F.3d 683 (9th Cir. 1997)

D.A.R. 35




I. Taylor; U.S. Department of Labor, Respondents.

No. 96-70984.

United States Court of Appeals, Ninth Circuit

December 31, 1997

Submitted Nov. 7, 1997.[*]

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[Copyrighted Material Omitted]

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Robert H. Madden, Madden & Crockett, Seattle, WA, for petitioner.

J. Bradford Doyle, Corte Madera, CA, for respondent Kenneth I. Taylor.

Petition for Review of a Decision of the Benefits Review Board, U.S. Department of Labor. BRB No. 94-0703.

Before: HARLINGTON WOOD, Jr., [**] RYMER and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

We review a petition to set aside an award of compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 ("LHWCA"). Petitioner Jones Stevedoring Co., formerly known as Jones Washington Stevedoring Co. ("Jones"), disputes the Administrative Law Judge's ("ALJ") ruling for claimant and respondent Kenneth I. Taylor ("Taylor") for hearing loss sustained in his work for Jones on October 18, 1989.

Jones argues that Taylor's claim is time-barred by 33 U.S.C. §§ 912 and 913 for lack of timely notice and for failure to file a timely claim. Jones also contends that the ALJ's

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finding that Taylor's employment at Jones caused his hearing loss is not supported by substantial evidence.


Taylor has worked in the longshore industry since 1959 and has been a crane operator since 1966. On the night of October 14, 1989, he worked an evening shift for Eagle Marine Services ("EMS"), lasting from six to eight hours. At the end of the shift, on the morning of October 15, Taylor filled out an EMS accident report in which he reported ringing in his ears due to excessive noise from driving a semi the night before.

On the night of October 18, 1989, Taylor worked for Jones as a crane operator. He operated crane # 41 in tandem with two other cranes. Although Taylor did not later have a specific recollection of the noises he was exposed to that night, he testified that crane # 41 is one of the oldest and noisiest cranes at that waterfront site. He also testified that that night he worked outside the legs of the crane, a position that placed him close to the crane's motor and engine, thus exposing him to high levels of noise. In all, Taylor worked for Jones an hour-and-a-half that night, from 10 p.m. to approximately 11:30 p.m.

On October 19, 1989, Taylor went to a previously scheduled medical appointment with Dr. Gregory K. Chan, an otalaryngoloist who often examines patients suffering from occupational hearing loss. Taylor claimed he heard ringing in his ears ever since being exposed to loud noise at work on October 10, 1989. An audiologist in Dr. Chan's office administered an audiogram, and on October 24, 1989, Dr. Chan reported that Taylor had sustained a "bilateral, descending sensorineural hearing impairment from mild to moderate," and that under the American Medical Association standards for evaluating hearing loss, Taylor had a binaural hearing loss of 11.25 percent due to prolonged occupational noise exposure.

J. Bradford Doyle ("Doyle"), Taylor's attorney, received the audiogram on October 27, 1989. Taylor did not. On January 5, 1990, Doyle notified the District Director of the Office of Workers' Compensation Programs of a claim by Taylor for permanent hearing loss sustained in the course of his employment with EMS on October 15, 1989. On January 9, 1990, Jones received a copy of Doyle's January 5 letter, but the audiogram was not enclosed. The January 5 letter named Jones as the responsible employer for workers' compensation purposes because Jones was the last company to employ Jones prior to October 27, 1989.

On April 18, 1990, Taylor filed a claim against Jones for "bilateral hearing loss" sustained in the "course of employment" due to "exposure to high noise levels on job." October 27, 1989, was mentioned as the date of injury. On May 30, 1990, Doyle gave Jones a copy of the October 19, 1989, audiogram.

On March 22, 1991, Taylor filed an amended claim for hearing loss, this time naming Jones, EMS and Stevedoring Services of America as responsible parties, and again using October 27, 1989, as the date of injury.

On June 24, 1991, Dr. Richard L. Voorhees performed a second audiogram on Taylor and concluded that Taylor had sustained a binaural hearing impairment of 10.31 percent. Dr. Voorhees found that the slight discrepancy between his audiogram results and Dr. Chan's were within the normal margin of test error. On July 1, 1991, Doyle told Jones for the first time that Taylor's claim was for injuries sustained on October 18, 1989, while in the employment of Jones. On September 6, 1991, and May 13, 1993, two sound surveys were conducted in crane # 41 to measure the occupational noise levels.

On September 27, 1993, the ALJ ruled in favor of Taylor. The ALJ noted that Taylor's notice was not timely, but found that Jones had not been prejudiced by the lack of timely notice, and therefore excused the delay under 33 U.S.C. § 912(d)(2).

The ALJ also found that Taylor's claim was not timely because at no time prior to July 1, 1991, had Jones been notified that the claim concerned an injury on October 18, or indeed any injury that Jones had caused. Nonetheless, the ALJ, bound by the Benefit Review Board's ("BRB") decision in Vaughn v. Ingalls Shipbuilding, Inc., 26 BRBS 27,

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1992 WL 194730 (Ben.Rev.Bd.1992), found that the deadline for Taylor's claim had been tolled under 33 U.S.C. § 908(c)(13)(D). That provision tolls the time for filing either notice of injury or a claim for compensation for hearing loss until the employee receives an audiogram. In Vaughn, the BRB had taken this literally and held that an attorney's receipt of an audiogram was not enough. 1992 WL 194730 at * 2. Because Taylor had never seen the audiogram--it had remained in his attorney's hands the entire time--the ALJ concluded that the limitations period had never begun to run. Thus, Taylor's claim was still timely. Finally, the ALJ found that Jones had in fact caused Taylor's injury on October 18, 1989.

Jones appealed to the BRB. Because the BRB failed to act within the time provided under the Omnibus Consolidated Rescission and Appropriations Act of 1996, Pub.L. No. 104-134, 1996 U.S.C.C.A.N. (110 Stat.) 1321, 1321-219, the ALJ's decision is deemed the final decision of the BRB for purposes of finality. Id. Thus, the ALJ's decision is the final agency decision. This petition for review followed.


In proceedings under the LHWCA, the BRB must accept the ALJ's findings unless they are contrary to law, irrational, or unsupported by substantial evidence. Port of Portland v. Director, OWCP, 932 F.2d 836, 838 (9th Cir.1991). We ordinarily review the BRB's decisions for errors of law and adherence to the substantial evidence standard. Id. In this case, however, the BRB's "decision" was an artifact of Public Law No. 104-134, and it is inappropriate to give deference to an affirmance that did not result from adjudication. Accordingly, we proceed to review the ALJ's decision directly, and will reverse only for errors of law or failure to adhere to the substantial evidence standard.


Timely notice and a timely claim are independent requirements under the LHWCA for a claim. See 33 U.S.C. § 912 (notice) and 33 U.S.C. § 913 (claim). 1 Therefore, they are addressed separately.

A. The statutory deadline for notice

Section 912 sets out the requirements for timely notice to an employer of a workers' compensation claim. Generally, an employee has 30 days to provide notice, and the clock starts running when reasonable diligence would have disclosed the relationship between his injury and his employment. § 912(a). The notice period is extended to one year for diseases that do not immediately result in disability or death. In Bath Iron Works v. Director, OWCP, 506 U.S. 153, 161-63, 113 S.Ct. 692, 698, 121 L.Ed.2d 619 (1993), the Supreme Court held that occupational hearing loss is not a disease that does not immediately result in disability or death. Therefore, § 912(a) requires notice within 30 days.

Both parties agree that Taylor did not provide Jones with notice within 30 days of...

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