Avondale Industries, Inc. v. Director, Office of Workers' Compensation Programs

• Decision Date: 16 November 1992
• Docket Number: No. 91-4905,91-4905
• Citation: 977 F.2d 186
• Parties: AVONDALE INDUSTRIES, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor and Wilton J. Cuevas, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 186

977 F.2d 186

1993 A.M.C. 2110

AVONDALE INDUSTRIES, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor and Wilton J. Cuevas Respondents.

No. 91-4905.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1992.

Richard S. Vale, Metairie, La., for Avondale Ind.

Michael S. Hertzig, Atty., U.S. Dept. of Labor, Washington, D.C., for Director.

Rebecca J. Ainsworth, John F. Dillon, Lowery M. Lomax, Maples, & Lomax, Pascagoula, Miss., for Cuevas.

Lisa L. Lahrman, BRB, Washington, D.C., for other interested parties.

Petition for review of an order of Benefits Review Board.

Before HIGGINBOTHAM and DUHE, Circuit Judges, and HARMON, District Judge. ^*

HARMON, District Judge:

Petitioner Avondale Industries, Inc. challenges a final order of the Benefits Review Board, affirming an Administrative Law Judge's finding that Avondale Industries, Inc. is responsible for Respondent-Claimant Wilton J. Cuevas' compensation for occupational hearing loss under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. Specifically the employer argues that the Administrative Law Judge and the Benefits Review Board misapplied the rule that the last maritime employer to expose a claimant to injurious stimuli before the claimant became aware of his impairment is the responsible party. Because we find that there is no error of law and because the record supports the Board's determination that the Administrative Law Judge's findings were based on substantial evidence, we AFFIRM.

I. Factual and Procedural History

From 1960-1967, when he was employed as a welder and crane operator for Avondale Industries, Inc. ("Avondale"), Wilton J. Cuevas ("Cuevas") was continually exposed five to seven days a week to injurious noise emitted from chipping hammers, chains, and fitters in the workplace. Subsequently, in 1971 Cuevas worked as a stevedore at Sealand Terminal Corporation ("Sealand") for three to four weeks, between two to six hours a day, unloading bananas from a conveyor belt, occasionally near a forklift that would remove the bananas from the dock area. On September 23, 1986, an audiogram performed on Cuevas by Dr. Thomas Graves revealed a 20.3 percent binaural sensorineural hearing loss, which Graves concluded was noise-induced. Report, Cuevas' Exh. # 3 in Apr. 7, 1989 hearing before ALJ. On April 2, 1987, Cuevas filed a claim against Avondale for occupational hearing loss pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq. A second audiogram on September 28, 1988, administered by Dr. Gordon Lee Stanfield, reflected a 16.8 percent hearing loss in the left ear, a 61.88 percent impairment of the right ear, of which 16.8 percent was attributed to occupational noise exposure, and a 24.31 percent overall binaural hearing loss. Following a hearing, in a Decision and Order dated September 18, 1989 (Rec., Vol. I, 32-38, repeated 62-68), an Administrative Law Judge ("ALJ") found that the two audiograms demonstrated a work-related hearing loss that met the requirements for compensation under 33 U.S.C. § 908(c)(13). The ALJ then averaged the 20.3 percent binaural impairment found by Dr. Graves and the 16.8 percent found by Dr. Stanfield and concluded that Cuevas had an 18.55 percent binaural hearing loss. The ALJ further found that Avondale failed to prove that Cuevas was exposed to injurious noise during his subsequent employment at Sealand and that Avondale was the employer responsible for compensation to Cuevas.

On appeal, Cuevas challenged the ALJ's calculation of compensable impairment, while Avondale cross-appealed the determination that it was the responsible employer. Rec., Vol. I, 2-5. In a September 23, 1991 Decision and Order, the Benefits Review Board ("Board") found that the ALJ erred in failing to apply the aggravation rule ¹ when he determined what percentage of Cuevas' hearing loss was compensable. Moreover, the Board modified the award based on its established rule that an award for occupational, noise-induced hearing loss must be based on a binaural assessment. Thus the Board concluded that the ALJ should have used Dr. Stanfield's figure of 24.31 percent binaural impairment, rather than the 16.8 percent for one year. It recalculated the appropriate award by averaging the correct figures (20.3 percent and 24.31 percent) for a determination of 22.3 percent binaural impairment. This ruling has not been appealed.

Otherwise the Board ² found that there was substantial evidence in the record to support the ALJ's decision and that it was reasonable. It therefore affirmed the finding that Cuevas was not exposed to injurious stimuli while he worked at Sealand and that Avondale was the maritime employer responsible for compensation.

Contesting the finding of its responsibility for compensation, Avondale filed a timely petition for review by this Court under 33 U.S.C. § 921(c).

II. Discussion

(A) Standard of review

This Court's review is limited to determining whether the Board's decision correctly concluded that the ALJ's order was "supported by substantial evidence on the record as a whole and is in accordance with the law." Odom Construction Company v. United States Department of Labor, 622 F.2d 110, 115 (1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981), quoting Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir.1978) "Substantial evidence is evidence that provides 'a substantial basis of fact from which the fact in issue can be reasonably inferred ... more than a scintilla ... more than create a suspicion ... such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Diamond, 577 F.2d at 1006, quoting NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299-300, 59 S.Ct. 501, 504-505, 83 L.Ed. 660 (1939). The substantial evidence standard is less demanding than that of preponderance of the evidence, and the ALJ's decision need not constitute the sole inference that can be drawn from the facts. Id. As fact finder, the ALJ determines questions of credibility of witnesses and of conflicting evidence. He is not required to accept the opinion or theory of a medical expert that contradicts the ALJ's findings based on common sense. Atlantic Marine v. Bruce, 661 F.2d 898, 900 (5th Cir.1981).

(B) Relevant Law

Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955), established the "last employer rule" for determining under LHWCA which maritime employer is responsible for payment of the full amount of benefits awarded as compensation to claimants for occupational diseases, including noise-induced hearing loss:

Congress intended that the employer during the last employment in which the 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 out of his employment, should be liable for the full amount of the award.

See also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir.) (applying Cardillo 's last employer rule), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613 (1981); Argonaut Insurance Company v. Patterson, 846 F.2d 715, 719 (11th Cir.1988) (stating that prior to the split of the 5th and 11th Circuits, the Circuit adopted the last employer rule in Fulks ). This rule was created to avoid the difficulties and delays in administration which would result if courts attempted to apportion liability among multiple employers. Cardillo, 225 F.2d at 145. Moreover "[t]he nature of occupational diseases ... makes it exceedingly difficult, if not practically impossible, to correlate the progression of the disease with specific points in time or specific industrial experiences." Cardillo, 225 F.2d at 144.

In Susoeff v. The San Francisco Stevedoring Co., 19 BRBS 149, 1986 WL 66392 at

(Ben.Rev.Bd. Nov. 28, 1986), the Board stated, "The last employer rule is not a rule of compensability. Rather, it is a judicially created rule for allocating liability among employers in cases where an occupational disease develops after prolonged exposure." Thus a claimant does not have to prove that his employer is liable. Once he has demonstrated a prima facie entitlement to benefits by showing that he "sustained physical harm and that conditions existed at work which could have caused the harm," he has established his "exposure to injurious stimuli during employment covered under the [LHWCA], and there exists a compensable claim. Employer can then rebut this presumption by showing that exposure to injurious stimuli did not cause the harm.... [or] that employee was exposed to injurious stimuli while performing work covered under the [LHWCA] for a subsequent employer" (citations omitted). Id. See also General Ship Service v. Director, Office of Workers' Compensation Programs, 938 F.2d 960, 961 (9th Cir.1991) (applying Susoeff ).

The Fifth Circuit has further held that, regardless of the brevity of the exposure, if it has the potential to cause disease, it is considered injurious. Fulks, 637 F.2d at 1012 (refusing to set de minimis standards for duration of exposure).

Avondale's counsel contended at oral argument that its burden of proof to show a potentially injurious environment under a subsequent, maritime employer is "featherweight," like the claimant's in establishing a prima facie case. He provided no legal authority for his stance. This Court finds no policy underlying the last causative employer rule to justify lightening Avondale's burden to rebut the presumption that it is liable. If anything, the rule is designed to insure that an injured worker is compensated without delays and without administrative difficulties, not to protect employers. Indeed, although the shifting burden of proof provides the employer with an opportunity...