Port of Portland v. Director, Office of Workers Compensation Programs

• Decision Date: 10 May 1991
• Docket Number: 89-70409,Nos. 89-70353,s. 89-70353
• Citation: 932 F.2d 836
• Parties: PORT OF PORTLAND, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; United States Department of Labor, Respondents. SAIF CORPORATION; Jones Oregon Stevedoring Company; Brady-Hamilton Stevedore Company; Or Port of Portland, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Donald R. Ronne, Sr., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 836

932 F.2d 836

1993 A.M.C. 1813

PORT OF PORTLAND, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; United

States Department of Labor, Respondents.

SAIF CORPORATION; Jones Oregon Stevedoring Company;

Brady-Hamilton Stevedore Company; Or Port of

Portland, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Donald

R. Ronne, Sr., Respondents.

Nos. 89-70353, 89-70409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 1990.

Decided May 10, 1991.

David L. Runner, Asst. Atty. Gen., Salem, Or., for petitioners.

Robert E. Babcock, Laughlin, Falbo, Levy & Moresi, Long Beach, Cal., for petitioner Port of Portland.

Nathaniel I. Spiller, Senior Appellate Atty., U.S. Dept. of Labor, Washington, D.C., for respondent Director.

Petition for Review of an Order of the Benefits Review Board.

Before CANBY, KOZINSKI and TROTT, Circuit Judges.

CANBY, Circuit Judge:

Port of Portland and its insurer, the SAIF Corporation, petition for review of an order of the Benefits Review Board of the Department of Labor awarding benefits to Donald Ronne on his claim arising under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 901-950. The Board determined that Ronne is entitled to compensation for the full amount of his hearing loss even though some of it may have been attributable to We affirm the full compensation determination but reverse as to the responsible party.

the aging process. The Board also held Port of Portland, Ronne's employer at the time he received the results of the determinative audiogram, responsible for paying the award rather than Jones Oregon Stevedoring Company (Jones Oregon), Ronne's last exposing employer before the audiogram was performed.

FACTS AND PROCEEDINGS BELOW

Ronne worked as a winch and crane operator for a number of employers between 1970 and 1979 and was regularly exposed to excessive noise. Following a two year absence from work due to an arm injury, Ronne worked on June 11, 1981, for Brady-Hamilton; on June 19, 1981, for Jones Oregon; and on June 26, 1981, for Port of Portland. Port of Portland was insured by SAIF Corporation until July 1, 1981, and was self-insured after that date.

On June 19, 1981, Ronne went to Dr. Bergeron because he was experiencing hearing difficulties. Dr. Bergeron examined Ronne and scheduled an audiogram that was performed on June 22, 1981. The audiogram showed an 8.75 percent sensori neural hearing loss which, according to Dr. Bergeron, is characteristic of noise-induced, work-related hearing loss.

After the audiogram, Ronne met with Dr. Bergeron and requested that he send a full report to Ronne's attorney. The attorney received the doctor's report and audiogram results on July 6, 1981. On October 1, 1981, Ronne met with his attorney, viewed the written report for the first time, and filed notices of injury and claims against his various employers and their insurance carriers under section 8(c)(13) of the LHWCA. Ronne contended that permanent loss of hearing had resulted from repeated exposures to noise during his employment as a longshoreman.

The employers and insurers contested the claims. After a full hearing, the Administrative Law Judge (ALJ) dismissed the claim as time-barred. On appeal, the Board reversed and remanded the case to the ALJ for further proceedings.

After hearing conflicting medical evidence as to how much of Ronne's hearing loss was attributable to presbycusis (age-related hearing loss), the ALJ awarded Ronne permanent partial disability compensation for all of his hearing loss. The ALJ assigned liability for payment of this award to Jones Oregon because it was the last employer to expose Ronne to industrial noise prior to the audiogram.

On appeal, the Board affirmed the ALJ's decision that Ronne was entitled to compensation for his entire hearing loss, without reduction for the effect of presbycusis. The Board held Port of Portland rather than Jones Oregon to be the liable employer. The Board held that liability was fixed on the date of Ronne's "awareness" of his disability, and that Ronne became aware on July 6, 1981, the day his attorney received the written audiogram report.

Port of Portland and SAIF Corporation, appeal the Board's decision.

ANALYSIS

I. Scope of Review

In LHWCA proceedings, the Board must accept the ALJ's findings unless they are contrary to law, irrational, or unsupported by substantial evidence. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984). We review the Board's decisions for errors of law and adherence to the substantial evidence standard. Bumble Bee Seafoods v. Director, Office of Workers' Compensation Program, 629 F.2d 1327, 1329 (9th Cir.1980). Because the Board is not a policymaking body, we accord no special deference to its interpretation of the LHWCA. Black, 717 F.2d at 1284. We do, however, defer to the statutory interpretations of the Director of the Office of Workers' Compensation Programs. Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 555 (9th Cir.1989). While we also respect reasonable interpretations by the Board, the "distinction

                in the deference owed the Director and the Board is significant ... where their positions conflict with respect to the issues raised on appeal."    McDonald v. Director, OWCP, 897 F.2d 1510, 1512 (9th Cir.1990).  The distinction is significant in the present case because, while the Board and the Director are of one mind with regard to the extent of the award, they differ as to which employer should be held liable
                

II. Amount of the Award

The first question we address is whether Ronne is entitled to compensation for the full amount of his hearing loss. The Board, applying its consistent interpretation of the aggravation rule, based Ronne's award on his total disability without factoring out that portion of his hearing loss which may be attributable to presbycusis. The Director supports the Board's position. Port of Portland argues, however, that the aggravation rule does not apply in this case because the noise-induced hearing loss had no effect on the underlying age-induced loss, and the aggravation rule may not be applied in a purely additive manner. We cannot accept Port of Portland's argument for two reasons: first, it is in conflict with LHWCA precedent, and second, it overlooks the policy underlying the LHWCA.

The aggravation rule is a doctrine of general workers' compensation law which provides that, where an employment injury aggravates, accelerates, or combines with a preexisting impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable. ¹ Independent Stevedore Co. v. O'Leary, 357 F.2d 812, 814-15 (9th Cir.1966). Accord, Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986) (en banc); Newport News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d 327, 329 (4th Cir.1982). This doctrine does not require that the employment injury interact with the underlying condition itself to produce some worsening of the underlying impairment. See Independent Stevedore, 357 F.2d at 815 (citing with approval Schreven v. Industrial Comm., 96 Ariz. 143, 393 P.2d 150, 152 (1964) (claimant who had a congenital back deformity and suffered a disabling employment accident awarded full compensation even though "the back strain did not worsen the congenital abnormality.")). The fact that part of Ronne's disability may have been due to a non-employment condition does not require him to prove that his disabilities combined in more than an additive way to warrant compensation for the resulting overall impairment. See Strachan Shipping, 782 F.2d at 516 n. 5 (the combined disability of 34% was merely the sum of the percentages attributable to each of three distinct knee injuries); Newport News, 694 F.2d at 328-29 (claimant awarded full 31.25% hearing loss without need to determine whether 5.95% current work-related loss worsened or affected pre-employment 25.3% loss).

This interpretation of the aggravation rule is in accord with LHWCA's underlying purpose of "provid[ing] a single complete recovery to the employee." Strachan Shipping, 782 F.2d at 518 (footnote omitted). The worker who is already impaired before his work-related injury suffers a level of disability more severe than would an unimpaired worker sustaining the same injury on the job. It would undercompensate the impaired worker to limit his or her award to that available to the unimpaired. ² The LHWCA recognizes this fact; indeed, the aggravation rule applies "even though the worker did not incur the

                greater part of his injury with that particular employer."    Id. at 519 n. 10.    Port of Portland's interpretation of the aggravation rule undermines the policy of providing an injured employee with a complete recovery for his disabilities.  Ronne is entitled to full compensation without reduction for the portion of his disability attributable to a possible age-related hearing loss
                

III. Responsible Employer

The more difficult question presented by this case is that of determining which of Ronne's successive employers shall bear the burden of paying his award. Port of Portland argues that the Board applied the "last employer rule" ³ incorrectly in this case. We agree.

The seminal case on the "last employer rule" is Traveler's Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.) cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). In Cardillo, the Court stated the general rule as follows:

... the employer during the last employment in which claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award.

Id. at 145.

This circuit adopted...