Bridier v. Alabama Dry Dock & Shipbuilding Corp., BRB 92-2358

• Court: Court of Appeals of Longshore Complaints
• Writing for the Court: PER CURIAM
• Parties: HOLLIS W. BRIDIER, Claimant-Petitioner v. ALABAMA DRY DOCK AND SHIPBUILDING CORPORATION and TRAVELERS INSURANCE COMPANY, Employer/Carrier-Respondents
• Docket Number: BRB 92-2358
• Decision Date: 27 June 1995

HOLLIS W. BRIDIER, Claimant-Petitioner
v.
ALABAMA DRY DOCK AND SHIPBUILDING CORPORATION and TRAVELERS INSURANCE COMPANY, Employer/Carrier-Respondents

BRB No. 92-2358

June 27, 1995

Appeal of the Decision and Order - Denying Benefits of Quentin P. McColgin, Administrative Law Judge, United States Department of Labor.

John D. Gibbons Gardner, Middlebrooks & Fleming, P.C., Mobile, Alabama, for claimant.

Walter R. Meigs, Mobile, Alabama, for employer.

Traci M. Castille Franke, Rainey & Salloum, Gulfport, Mississippi, for carrier.

Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM

Claimant appeals the Decision and Order - Denying Benefits (90-LHC-1487) of Administrative Law Judge Quentin P. McColgin 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'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).

Claimant worked for employer as an electric welder from 1944 until the yard closed in 1988, except for two years of military service between 1953 and 1955. During his employment, claimant was exposed to noise levels which he characterized as very loud. In December 1963, Dr. Mueller diagnosed claimant as having otosclerosis, a sex-linked hereditary disease involving the deposit of spongy bone tissue in the ear, which produces conductive hearing loss. In 1967 and 1973, claimant underwent surgery for this condition, which involved the removal of the stapes bones in his ears.^[1]Claimant testified that his hearing improved initially after the surgery, but then deteriorated again. Tr. at 94. Claimant subsequently developed sensorineural hearing loss. Claimant testified that he started to wear hearing aids in 1981 and has since consistently used hearing protection at work. Tr. at 92-93. Claimant further stated that he remembered receiving an audiogram shortly before the yard closed down in 1988 but did not recall receiving audiograms administered by employer in 1982 and 1983. Tr. at 21, 23, 25, 102-107, 109. Claimant filed a claim for an 80.9 percent binaural hearing loss under Section 8(c)(13), 33 U.S.C. §908(c)(13), on November 11, 1986, based on audiometric testing performed on October 24, 1986.

The administrative law judge found that the evidence established that claimant received documents from employer on October 19, 1983, sufficient to satisfy the requirements of Section 8(c)(13)(D), 33 U.S.C. §908(c)(13)(D)(1988), so as to trigger the running of the time periods under Sections 12 and 13 of the Act, 33 U.S.C. §§912, 913. The administrative law judge determined that claimant's claim was not barred by Section 12 of the Act, as it fell within the Section 12(d)(1) exception, since employer had knowledge of the injury. 33 U.S.C. §912(d)(1). The administrative law judge concluded, however, that the claim was barred under Section 13 as it was filed on November 11, 1986, three years after October 19, 1983, the date claimant received an audiogram and accompanying report and should have been aware of his work-related hearing loss. The administrative law judge further found that the Section 13 statutory limitations period was not tolled under Section 30, 33 U.S.C. §930, by employer's failure to file a First Report of Injury beyond September 24, 1984, inasmuch as the 1984 Amendments, which became effective on that date, eliminated the requirement of filing a Section 30 report for no time-loss injuries. With regard to causation, he also found that employer had rebutted the Section 20(a), 33 U.S.C. §920(a), presumption and, upon weighing the evidence as a whole, concluded that claimant failed to establish that his hearing loss is attributable to work-related noise exposure. The administrative law judge, therefore, denied claimant both disability compensation under Section 8(c)(13) and medical benefits under Section 7, 33 U.S.C. §907.

On appeal, claimant contends that the administrative law judge erred in finding the November 11, 1986, claim untimely under Section 13, arguing that the documents he received from employer in October 1983 do not constitute an audiogram and accompanying report within the meaning of Section 8(c)(13)(D). Claimant also contends that as employer did not file a First Report of Injury, the limitations period was tolled under Section 30(a), asserting that the 1984 Amendments do not apply to this issue. Finally, claimant argues that the administrative law judge erred in concluding that his hearing loss is not work-related. Employer responds, urging that the administrative law judge's findings with regard to timeliness and causation be affirmed. In the alternative, employer contends that it is entitled to Section 8(f), 33 U.S.C. §908(f), relief. The carrier has also filed a separate brief, urging affirmance.^[2] Claimant replies, reiterating his original arguments.

TIMELINESS

Claimant first argues that the administrative law judge erred in finding the claim barred under Section 13, asserting that the documents which the administrative law judge found he received on October 19, 1983, are insufficient to satisfy the audiogram and accompanying report requirement of Section 8(c)(13)(D). Section 8(c)(13)(D) of the Act provides that, in claims for a loss of hearing, the time period of Section 13 will not commence "until the employee has received an audiogram, with the accompanying report thereon, which indicates that the employee has suffered a loss of hearing." 33 U.S.C. §908(c)(13)(D)(1988). See 20 C.F.R. §702.221(b); Vaughn v. Ingalls Shipbuilding, Inc., 26 BRBS 27, 29 (1992), aff'd on recon. en banc, 28 BRBS 129 (1994). Once claimant receives a copy of the audiogram and accompanying report, a claim must be filed within one year of the date that claimant is or should have been aware that his hearing loss is work-related. 33 U.S.C. §913(a).^[3]

In concluding that the documents claimant received on October 19, 1983, started the running of the statute of limitations, the administrative law judge rejected the argument that to satisfy the requirements of Section 8(c)(13)(D), the audiogram must be prepared by an audiologist and must accord with the American Medical Association, Guides to the Evaluation of Permanent Impairment (3d ed. 1988) (AMA Guides), and the regulation at 20 C.F.R. §702.441. He determined that the stringent criteria of 20 C.F.R. §702.441 are applicable to quantifying the degree of hearing loss and not to whether claimant knew or should have known that he had a hearing loss. The administrative law judge noted that to satisfy the requirements of Section 8(c)(13)(D), the employee must receive both an "audiogram" and an "accompanying report" which indicates that he has suffered a loss of hearing. Accepting the definition of an audiogram provided by audiologist Holston, i.e., a graph expressed numerically or graphically that is used to plot hearing thresholds across a specific range of pitches and frequencies, the administrative law judge determined that the chart documenting claimant's hearing at various frequencies was sufficient to satisfy the audiogram requirement of Section 8(c)(13)(D).

The administrative law judge's finding that the audiogram claimant received in October 1983 is sufficient to satisfy the requirement of Section 8(c)(13)(D) that an audiogram be provided is affirmed. We agree with the administrative law judge's conclusion that the criteria contained in 20 C.F.R. §702.441 apply only to quantifying the degree of hearing loss and not to the issue of whether claimant knew or should have known that he had a hearing loss under Section 8(c)(13)(D). Section 8(c)(13)(C) of the Act, 33 U.S.C. §8(c)(13)(C), explicitly states that an audiogram shall be presumptive evidence of the amount of hearing loss sustained as of the date thereof only where it was administered by a licensed or certified audiologist or a physician certified in otolaryngology, such audiogram with the report thereon was provided to the employee at the time it was administered, and no contrary audiogram made at that time is provided. The regulation applicable to this provision, 20 C.F.R. §702.441, which parallels the language in the statute, by its own terms indicates that the regulation is applicable to determining the degree of hearing loss. The requirements of Section 8(c)(13)(C) of the Act and 20 C.F.R. §702.441 are thus not related to determinations under Sections 8(c)(13)(D), 12 and 13. Thus, claimant's argument that the October 19, 1983 audiogram was not technically sufficient to satisfy the requirements of Section 8(c)(13)(D) is rejected.

Claimant's...