AEU Longshore Blog ISSUE: Hearing Loss

A recent decision from the U.S. Department of Labor’s Benefits Review Board (“the Board”) illustrates some challenges related to the adjudication of hearing loss claims under the Longshore and Harbor Workers’ Compensation Act (“the Act”).

Basically, a claimant filed a hearing loss claim 21 years after his last day of work on the waterfront, against the employer for whom he worked that one last day.

Is this even possible?  Yes, it is.

Before discussing the case, here are some relevant general principles.

Is hearing loss an occupational disease (OD)? 

It is treated as an OD for purposes of the last employer rule, but since a hearing loss injury is complete when exposure ends, the provisions of the Act extending the statute of limitations and providing benefits to retirees for OD with long latency periods do not apply.  Benefits are awarded under the schedule at section 8(c)(13) as a traumatic injury rather than section 8(c)(23), and the average weekly wage is set at last exposure.

What is the time for filing notice of a hearing loss (section 12) or a claim for compensation (section 13)? 

The 30-day notice and one-year claim filing limits apply to hearing loss claims, and they do not begin to run until the employee has received an audiogram and its accompanying report indicating a loss of hearing and he or she is aware of the causal connection between the employment and the loss of hearing.  Actual physical receipt of the audiogram by the claimant is required.

What is the Board’s standard of review when an Administrative Law Judge’s (ALJ) decision is appealed? 

The appellate standard of review is limited.  Findings of fact by the ALJ, if supported by substantial evidence, are conclusive and must be accepted by the Board.  Legal issues are reviewed de novo.  The ALJ weighs the evidence, including testimony, medical reports, depositions, etc., and draws inferences from it.  The Board may not reweigh the evidence or disregard the ALJ’s findings merely because other inferences could have been drawn.

For example:

“It is well established that the administrative law judge is entitled to assess the credibility of all witnesses and to determine the weight to be accorded to the evidence of record … Moreover, the Board must accept the administrative law judge’s factual findings and inferences which are supported by the record, and may not disregard her findings merely on the basis that the evidence also permits other inferences…” (Bath Iron Works Corp. v. U.S. Department of Labor (Knight), 336 F.3d 51 (1st Cir. 2003)).

“… it is impermissible for the Board to reweigh the evidence or to substitute its own views for those of the administrative law judge …” (Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d 122 (4th Cir. 1994)).

What is the adjudicative framework governing a claim under the Act?

Initially the claimant must establish his prima facie case.  He must show that he has suffered some harm and that working conditions existed that could have caused that harm.  Once that light burden is met, the claimant is entitled to the rebuttable section 20(a) presumption of causation, i.e., that his injury was caused by his employment.   The presumption shifts the burden to the employer to rebut the presumption by producing substantial evidence that the injury was not caused by the employment.  This is a burden of production at this stage, not persuasion.  The evidence must only cast doubt on the claimant’s prima facie case.  If the presumption is rebutted, then it drops from the case and the claimant bears the burden of proving his entitlement by a preponderance of the evidence.

Note:  “Substantial evidence” is any evidence that a reasonable mind would accept in support of a proposition. Also, the section 20(a) presumption is not “evidence.”  It does not strengthen the claimant’s case.  It is a procedural device to shift the burden of proof.

Case Discussion

So, with all of this in mind, let’s discuss the case of Melvin Roy v. Cooper/T.Smith, Inc.; Ryan Walsh, Inc./SSA Gulf; and Homeport Insurance Company, BRB No. 16-0603, May 18, 2017 (Unpublished) in which the claimant filed a claim for hearing loss under the Act 21 years after leaving maritime employment.  The claim was initially filed against the employer for whom the claimant worked on his last day on the waterfront – employment of which the claimant could not remember any details except that he worked on “pipes.”

The claimant last worked in the Port of Houston in 1991.  Twenty-one years later, he filed a hearing loss claim based on a 2012 audiogram showing a 33.8% binaural hearing loss.  A U.S. Department of Labor ALJ denied the claim but the Board has vacated the ALJ’s denial and remanded the case to reconsider certain evidence as it relates to the claimant’s prima facie case.

The ALJ found that the claimant did not establish the second element of his prima facie case, i.e., that working conditions existed that could have caused his hearing loss.  The ALJ found that the claimant’s testimony was vague, contradictory, and unreliable, and thus that he did not establish that working conditions existed that could have caused his hearing loss.

One could argue that the case was over at this point.  The ALJ made a credibility determination on the basis of which he found that the claimant did not establish his prima facie case.  The standard of review is very clear.  The BRB must affirm the ALJ’s finding that a claimant is not a credible witness unless the credibility determination is itself inherently incredible or patently unreasonable.

Not this time.  The Board found a note in a medical report in which the doctor stated that the claimant mentioned that various job sites exposed him to loud tools, machinery, heavy equipment and environmental noises.  Seizing on this second-hand report of a statement made by a claimant that the ALJ found to be non-credible, the Board decided that since the ALJ failed to evaluate this medical note, and if credited, the sentence could establish that the claimant was exposed to injurious noise that could have caused his hearing loss, the second prong of the prima facie case could have been established.

So, according to the Board, the ALJ’s decision was “tainted”, and thus the case was remanded for the ALJ to consider all of the relevant evidence (i.e., the second-hand repetition of statement that may have been made by a non-credible claimant) in order to determine whether or not the claimant successfully established his prima facie case.

The case turns on this point, since if the claimant establishes his prima facie case, then he is entitled to the section 20(a) rebuttable presumption that his hearing loss was caused by his employment. On

remand, the ALJ will also have to deal with the fact that the Board reversed his finding with regard to the reliability of the claimant’s audiogram.  The ALJ had found that the audiogram was not presumptive evidence of a hearing loss under section 8(c)(13)(C) of the Act and 20 C.F.R. Section 702.441 of the Regulations because he was unable to determine who actually administered it.  The Board, however, thought that based on the signature line and letterhead on the letter reporting the test results that the ALJ could have concluded that the audiogram met the regulatory criteria.  The ALJ also did not make it clear enough for the Board why the audiogram could not nevertheless constitute probative, if not presumptive, evidence.

The Board blatantly reweighed the evidence, overtly made its own inferences, and reversed the ALJ’s finding on the first prong of the prima facie case.  Of course, the ALJ had actually denied the claim based on the second prong of the prima facie case.

The lesson that can be taken from this case is that a hearing loss can be projected back two decades, against a maritime employer for whom the claimant worked for one day, on which day the claimant couldn’t remember any details of his work.

Unfortunately, this case is not an “outlier.”  In fact, this is how hearing loss claims are adjudicated.  There is no outside time limit for filing a hearing loss claim.  If there is no exit audiogram at last day of employment, the last maritime employer may find itself liable for all post-employment hearing loss.  And the claimant does not have to credibly recreate the conditions of his employment. Needless to say, following the course of this case on remand will be interesting.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Hearing Loss Claims

Jack_crop 72dpiI will point out what I think are inequities in the way that hearing loss claims are handled under the Longshore Act.

But first, I understand that hearing loss is clearly a legitimately compensable injury when it results from injurious workplace noise exposure. My point is that the adjudication of these claims under the Longshore Act is not always consistent with the overall concept and rationale of the workers’ compensation remedy.

Remember, workers’ compensation laws represent a compromise, whereby workers receive the advantages of no fault, prompt wage replacement and medical benefits for workplace injuries without having to face the common law defenses of assumption of risk, contributory negligence, and negligence of a fellow employee in a lawsuit against their employer; employers receive freedom from lawsuits and increased predictability as to their liability to employees for workplace injuries.

In many, by no means uncommon, circumstances the adjudication of hearing loss claims does not satisfy the “predictability” and “liability for workplace injuries” elements of the workers’ compensation tradeoff.

First, some General Principles:

Hearing loss under the Longshore Act is NOT an “occupational disease which does not immediately result in death or disability”. It is compensated under Section 8(c)(13) as a scheduled award and not under Section 8(c)(23) as an occupational disease. It is a traumatic injury in that the harm occurs immediately upon exposure.

Hearing loss IS treated as an occupational disease for the application of the last responsible employer rule.

The Section 20(a) presumption of causation applies to hearing loss claims, and the claimant’s prima facie case can be established solely based on his testimony that he was exposed to loud noise in the workplace.

The Aggravation Rule applies to hearing loss claims. The claimant is entitled to compensation for his entire hearing loss when workplace injurious noise exposure aggravates or combines with a prior hearing impairment, whether due to a birth defect, injury, disease, aging, or any other reason.

The date of injury in a hearing loss case is the date of last exposure, which is also when the Average Weekly Wage is established.

BUT, the Sections 12 and 13 notice and claim filing timeliness requirements do not begin to run until the claimant has an audiogram which shows a hearing loss, receives the results and the accompanying report, AND is aware of the relationship between his work and his hearing loss.

Under Section 8(c)(13), the schedule provides for binaural hearing loss to be compensated on the basis of 100% loss equals 200 weeks of compensation.

Here is what can happen:

Case 1: A maritime worker retires from all employment in 1985 at age 60. In 2005 at age 80 he has his first audiogram performed which shows a 30% binaural hearing loss. He claims that he was regularly exposed to loud noise at his workplace. He files a hearing loss claim under the Longshore Act within one year of the audiogram. His claim is likely to be considered as timely filed. So much for predictability for the employer, who is faced with a claim for a workplace injury filed 21 years after employment and exposure ended.

Case 2: A worker with a pre-employment conductive binaural 50% hearing loss unrelated to workplace exposure retires from maritime employment. Three years later he has an audiogram which shows a 60% binaural hearing loss. He files a claim against the employer for the full 60% hearing loss. Under the Aggravation Rule, the employer may be liable for the full 60%. The employer’s liability may include the pre-employment, non-work related 50% hearing loss combined with the 10% work related hearing loss. The employer pays for the legitimate work related hearing loss and also pays for the indisputably non-work related hearing loss.

Case 3: A claimant works for a succession of employers, and he is exposed to loud noise at each workplace. He doesn’t file a hearing loss claim against any of the employers. After he retires he files a claim against the last employer. Under the last employer rule, this employer faces liability for the worker’s entire hearing loss. The earlier employers escape liability.

The point is that under current interpretations of the Longshore Act’s hearing loss provisions, maritime employers are paying for hearing loss claims that are filed many years after employment and exposure have ended, and are also paying for non-maritime work related portions of hearing loss due to non-industrial causes, disease, work for other employers, aging, etc.

Amendments to the Act which reverse current case law and apply reasonable timeliness requirements for the filing of claims and for subtracting out the non-work related components of hearing loss will restore the intended balance in workers’ compensation. Workers will be compensated for their work related hearing loss fairly and in a manner that restores to employers the equitable elements of the workers’ compensation tradeoff.