Ceres Gulf, Inc. v. Dir., Office of Worker's Comp. Programs

• Decision Date: 04 June 2012
• Docket Number: No. 11–60456.,11–60456.
• Citation: 683 F.3d 225
• Parties: CERES GULF, INCORPORATED, Petitioner, v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. Department of Labor; Norris Plaisance, Sr., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

683 F.3d 225

CERES GULF, INCORPORATED, Petitioner,

v.DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. Department of Labor; Norris Plaisance, Sr., Respondents.

No. 11–60456.

United States Court of Appeals, Fifth Circuit.

June 4, 2012.

Lawrence Philip Postol (argued), Seyfarth Shaw, L.L.P., Washington, DC, for Petitioner.

Kathleen Hwang Kim, Rae Ellen James, Associate Sol., Mark Ambrose Reinhalter, Counsel, U.S. Dept. of Labor, Office of the Sol., Thomas O. Shepherd, Jr., Clerk, Benefits Rev. Bd., Washington, DC, David Duhon, U.S. Dept. of Labor, New Orleans, LA, Edward S. Rapier, Jr. (argued), Edward S. Rapier, Jr. Law Office, Covington, LA, for Respondents.

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

Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Chief Judge:

Ceres Gulf, former employer of retired longshoreman Norris Plaisance, Jr., challenges a Benefits Review Board (“BRB”) decision that overruled an Administrative Law Judge (“ALJ”) twice and held Ceres Gulf liable for Plaisance's hearing loss. Because the BRB initially applied the wrong legal test and standard of review to the ALJ's decision, we REVERSE.

I. Background

Plaisance (“Claimant”) worked as a longshoreman for various employers beginning in the 1950s and for Ceres Gulf (“Petitioner”) from 1982 until he retired in 1988. He noticed an initial hearing loss in 1976, for which he obtained hearing aids. After retiring, he was diagnosed with both conductive and sensorineural hearing loss.¹ In March 2006 he filed a claim against Ceres Gulf, his last maritime employer, pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.(“LHWCA”).

In his initial decision and order, the ALJ found in favor of the employer. He concluded that the Claimant provided evidence sufficient to invoke the presumption of causation under Section 20(a) of the LHWCA, 33 U.S.C. § 920(a) (“In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary ... [t]hat the claim comes within the provisions of this chapter.”) (the “Section 20(a) presumption”). Nevertheless, he held that the employerrebutted the presumption by substantial evidence, and he found based on the record as a whole that the employer's workplace was not the cause of Claimant's injury.

On appeal, the Benefits Review Board (“BRB”) vacated and remanded for further consideration. It held that some of the evidence relied on by the ALJ to satisfy the “substantial evidence” standard could not, as a matter of law, contribute to rebutting the presumption. It first excluded the expert opinion of Dr. Irwin, who stated that the relationship between the sensorineural hearing loss and Claimant's noise exposure was possible but not definite because of potential exogenous causes. The BRB concluded that these statements could not establish rebuttal in light of the aggravation rule, which holds that even if employment combined with other preexisting causes of the loss, the entire disability is compensable. See, e.g., Strachan Shipping v. Nash, 782 F.2d 513, 517 (5th Cir.1986) (en banc) (“[W]here an employment injury worsens 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.”) (citations omitted).

Second, the BRB excluded two of the bases for the opinion of the employer's expert, Dr. Seidemann: the use of sound level surveys and generalized population information regarding hearing loss. Dr. Seidemann opined that the plaintiff exhibited a mixed-use hearing loss, comprising both a mild sensorineural hearing loss and a more severe bilateral conductive hearing loss, the latter of which could not possibly have been caused by noise exposure.² He also concluded that while sensorineural hearing losscan be caused by noise exposure, this Claimant's sensorineural hearing loss was not actually caused by noise exposure, because Claimant's hearing was better than average for someone his age and because the doctor's noise studies performed in various longshore environments did not reveal noise levels high enough to cause hearing loss.

The first basis, the BRB wrote, could not constitute evidence against the presumption because the hearing capacity of the average person of Claimant's age was logically unrelated to whether Claimant's present hearing loss was caused, aggravated, or contributed to by his employment. An employer takes his employee as he finds him, even if that employee enjoys unusual hardiness or frailty. See Gooden v. Dir., Office of Worker's Comp., 135 F.3d 1066, 1069 (5th Cir.1998), quoting Southern Stevedoring Co. v. Henderson, 175 F.2d 863, 866 (5th Cir.1949) (“There is no standard or normal man who alone is entitled to workmen's compensation.”).

The BRB also rejected the second basis for Dr. Seidemann's opinion—his noise studies in different longshore environments—as rebuttal of the Section 20(a) presumption. The ALJ had found that there was evidence sufficient to invoke the Section 20(a) presumption that noise levels in Claimant's work environment caused hearing loss. That finding was not challenged on appeal. According to the BRB, paraphrasing New Orleans Stevedores v. Ibos, 317 F.3d 480, 485 (5th Cir.2003), it therefore fell to the employer to “demonstrate ... that exposure to injurious stimuli did not cause the employee's occupational disease....” Evidence from other longshore facilities was held irrelevant to rebut the Claimant's testimony concerning his exposure. The BRB remanded for consideration whether the employer had rebutted the presumption by substantial evidence, absent these three impermissible bits of evidence.

On remand, the ALJ concluded that without this evidence the employer had failed to rebut the presumption of compensability. The sole remaining ground for Dr. Seidemann's conclusion was that Claimant's non-work-related otosclerosis functioned as a built-in earplug that may have served as a hearing protector, reducing the impact of workplace noise-exposure. In the ALJ's judgment, this was not alone substantial evidence against the presumption. The ALJ therefore held that Claimant suffered work-related hearing loss during employment with Petitioner. He found only an 8.4% binaural hearing loss compensable. Because Claimant had not shown that his non-work-related hearing loss predated his work with the Employer, that condition could not have been “aggravated” during employment.

In its second opinion, the BRB affirmed the ALJ's revised finding of compensable injury. However, it held that the ALJ erred in holding that Claimant must prove that his conductive hearing loss pre-existed his work-related hearing loss. The BRB placed the burden on the employer to provide substantial evidence that it did not. It held that in view of the Section 20(a) presumption, the entire hearing impairment was work-related, and the employer failed to produce substantial evidence that some portion of the disability was due to an intervening cause post-dating the work injury. Ceres Gulf was accordingly held liable for the Claimant's total 80.8% hearing loss.

On appeal, Ceres Gulf challenges the BRB's exclusion in its first decision of the two bases for Dr. Seidemann's opinion and the BRB's conclusion in its second decision that the amount of compensable hearing loss was 80.8%.

II. Discussion

The critical initial issue on appeal is whether the BRB properly required the ALJ to disregard a substantial portion of the reasoning used by Dr. Seidemann to support his opinion that Plaisance's hearing loss was not caused by his longshore work at Ceres Gulf. To evaluate this holding, we restate the fundamentals governing both this court's and the BRB's review of ALJ compensation decisions.

“This court ... reviews decisions by the BRB to determine whether it has adhered to its proper scope of review— i.e., whether the ALJ's findings of fact are supported by substantial evidence and are consistent with the law.” Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 603 (5th Cir.2004). The BRB, in turn, is bound by the LHWCA to uphold the factual findings of the ALJ if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3). Substantial evidence is “that relevant evidence—more than a scintilla but less than a preponderance—that would cause a reasonable person to accept the fact finding.” Coastal Prod. Svc., Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir.2009). The ALJ is thus the factfinder who is exclusively entitled to assess both the weight of the evidence and the credibility of witnesses. Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir.1995); La. Ins. Gty. Assn. v. Director, 614 F.3d 179, 185 (5th Cir.2010); Avondale Indust. v. Dir., Office of Worker's Comp., 977 F.2d 186, 189 (5th Cir.1992).

The LHWCA further specifies the order of proof in compensation cases, providing that “[in] any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidenceto the contrary ... [t]hat the claim comes within the provisions of this chapter.” 33 U.S.C. § 920(a). To invoke the presumption, a Claimant must offer a prima facie case that he (1) suffered a harm, and (2) a workplace condition may have been responsible for or aggravated the harm. Conoco, Inc., v. Dir., Office of Worker's Comp., 194 F.3d 684, 687 (5th Cir.1999). When the presumption is invoked, as it may be solely by a Claimant's testimony, “the burden shifts to the employer to rebut it through facts—not mere speculation—that the harm was not work-related.” Id. (omitting citation). If the presumption is rebutted by the employer, the ALJ is then obliged to weigh all of the evidence of record to determine whether the injury arose out of the Claimant's employment. Del Vecchio v. Bowers, ...