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U.S.

Department of Labor

Office of Administrative Law Judges


5100 Village Walk, Suite 200
Covington, LA 70433

(985) 809-5173
(985) 893-7351 (Fax)

Issue Date: 15 January 2015


CASE NO.:

2014-LHC-1131

OWCP NO.:

08-140336

IN THE MATTER OF
DANIEL MAXEY,
Claimant
v.
SUDERMAN CONTRACTING STEVEDORES, INC.,
Employer
and
TRAVELERS CASUALTY & SURETY CO.,
Carrier

APPEARANCES:
WILLIAM FARRINGTON, Esq.
For Claimant
JOHN WALKER, Esq.
For Employer

BEFORE:

PATRICK M. ROSENOW
Administrative Law Judge
DECISION AND ORDER
PROCEDURAL STATUS

This case arises from a claim for benefits under the Longshore and Harbor Workers
Compensation Act (the Act)1 brought by Claimant against Employer and Carrier. 2 The matter
1
2

33 U.S.C. 901-950.
Henceforth collectively Employer.

was referred to the Office of Administrative Law Judges for a formal hearing on 15 Apr 14. All
parties were represented by counsel and agreed to waive personal appearances, submitting the
matter on the written record only. My decision is based upon the entire record, which consists of
the following:3
Exhibits
Employers (EX) 1-10
Claimants (CX) 1-2
My findings and conclusions are based upon the stipulations of counsel, the evidence
introduced, my observations of the demeanor of the witnesses, and the arguments presented.
STIPULATIONS
1. The date of alleged injury was 2 Apr 14.
2. Employer/employee relationship existed at the time of hearing loss.
3. The date Claimant became aware of employment/hearing loss relationship was 13 Sep
13.
4. The date Carrier was advised of hearing loss was 25 Feb 14.
5. Employer filed notice of controversion on 28 Mar 14.
6. Informal conference was held on 24 Mar 14.
7. Average Weekly Wage (AWW) of Claimant is $151.33.
FACTUAL BACKGROUND
Claimant had a varied and intermittent work history which ended in 1993 as a result of an
unrelated injury. An audiogram performed in 2013 showed a 19.1% hearing loss.
ISSUES & POSITIONS OF THE PARTIES
Claimant argues that his hearing loss was caused by his exposure to noise when he
worked for Employer. Employer responds that the record is insufficient to show that (1)
Claimant was exposed to any noise while he worked for employer; (2) Claimants work for
Employer falls within the coverage of the Act; or (3) Employer was Claimants last maritime
employer.
LAW
In the absence of any substantial evidence to the contrary, the Act presumes that a claim
comes within its provisions.4 The presumption takes effect once the claimant establishes a prima
facie case by proving he suffered some harm or pain and a work-related condition or accident

I have reviewed and considered all testimony and exhibits admitted into the record. Reviewing authorities should
not infer from my citations to some portions of witness testimony and items of evidence that I did not consider those
things not specifically mentioned or cited.
4
33 U.S.C. 920(a).

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which could have caused the harm.5 Once the presumption applies, the burden is on the employer
to go forward with substantial countervailing evidence to rebut that the injury was caused by the
claimant's employment.6 Once an employer offers sufficient evidence to rebut the presumption, it
is overcome and it no longer controls the result.7
The fact-finder must then weigh all the evidence in the record and resolve the facts at
issue based on the evidence.8 In making that determination, more weight may be given to one
medical opinion over another.9 However, the presumption does not apply to the issue of whether
a physical harm or injury occurred10 and does not aid the claimant in establishing the nature and
extent of disability.11
The Act has specific rules for cases of hearing loss. A hearing loss is a scheduled injury
with a specific compensation scheme allowing for 52 weeks of compensation for loss of hearing
in one ear and 200 weeks for loss in both ears.12 The Act provides that [a]n audiogram shall be
presumptive evidence of the amount of hearing loss sustained as of the date thereof, only
ifsuch audiogram was administered by a licensed or certified audiologist or a physician who is
certified in otolaryngology[.]13 It also requires that [d]eterminations of loss of hearing shall be
made in accordance with the guides for the evaluation of permanent impairment as promulgated
and modified from time to time by the American Medical Association.14
It is clearly established through the aggravation doctrine that the employer takes the
employee as it finds him or her. Thus, the employer is responsible for the totality of the injury,
even if some of it was preexisting and the workplace simply aggravated it or supplemented it. 15
The aggravation rule applies in the cases of hearing loss, 16 including losses due to aging
(presbycusis)17 and birth defects.18
The rule has its origins, in part, in recognition of the difficulty in apportioning the
degree of disability between pre-employment (or non-employment) causes and employment
causes[.]19 However, the purpose of the aggravation rule is not simply to avoid difficult issues
5

Gooden v. Dir., OWCP, 135 F.3d 1066 (5th Cir. 1998).


Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1081-82 (D.C. Cir. 1976), cert. denied, 429 U.S. 820 (1976).
7
Noble Drilling Co. v. Drake, 795 F.2d 478 (5th Cir. 1986).
8
Id.
9
Coffy v. Marine Terminals Corp., 34 BRBS 85 (2000).
10
Devine v. Atl. Container Lines, G.I.E., 25 BRBS 15, 19 (1990).
11
Bruce v. Bath Iron Works Corp., 25 BRBS 157, 159 (1991) (the record contained no evidence reflecting the
claimants hearing loss when he left covered employment); Holton v. Indep. Stevedoring Co., 14 BRBS 441 (1981);
Duncan v. Bethlehem Steel Corp., 12 BRBS 112 (1979).
12
33 U.S.C. 908(c)(13)(A)-(B).
13
33 U.S.C. 908(c)(13)(C).
14
33 U.S.C. 908(c)(13)(E).
15
See, e.g., Conoco, Inc. v. Dir., OWCP, U.S. Dept. of Labor, 194 F.3d 684, 690 (5th Cir. 1999);
Louis Dreyfus Corp. v. Dir., OWCP, U.S. Dept. of Labor, 125 F.3d 884, 887 (5th Cir. 1997).
16
Epps v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 1 (1986).
17
Ronne v. Jones Or. Stevedoring Co., 22 BRBS 344, 348 (1989) aff'd in pertinent part and rev'd on other grounds
sub nom Port of Portland v. Dir., OWCP, 932 F.2d 836 (9th Cir. 1991).
18
Worthington v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 200 (1986).
19
Newport News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d 327, 329 (4th Cir. 1982).
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of proof. It is also based in the humanitarian nature of the act.20 Even if the evidence is clear that
allocation of disability is not entirely due to employment-related conditions, the rule still holds
the employer liable.21 The fact that some pre-employment injuries, such as hearing loss, are
measurable while others are not is not enough to prevent a given employee from collecting full
compensation.22 A suggestion to the contrary was offered, but refused, in the process of drafting
the Act.23
When there is a significant lapse in time between the end of the exposure and the next
valid measurement of a claimants hearing, it is within the discretion of the fact finder to
determine whether or not the record supports a determination that the exposure caused any
impairment disclosed by that testing.24 Claimants are not necessarily required to recreate the
precise extent of their hearing loss at the date their covered employment ended. In the absence of
credible evidence regarding the extent of a claimant's hearing loss at the time he leaves covered
employment, the administrative law judge may evaluate the evidence of record and rely on the
most credible evidence in determining the extent of claimant's work-related hearing loss.25
In cases of hearing loss with multiple maritime employers, liability rests with the last
employment in which the claimant was exposed to injurious noise.26 That rule applies even when
prior employers have contributed to the loss to avoid the difficulties and delays connected with
trying to apportion liability among employers.27
EVIDENCE
Claimant testified at deposition hearing in pertinent part that:28
He was born in 1959. He worked at a number of jobs while he was in high school. After
leaving high school in 1979 he worked driving a truck for Gulf Lumber. He worked at a
gas station. He worked as a repairman at a city park. He worked as a customer service
assistant at Prets Lumber. He doesnt remember working for Mariner Management. He
made hamburgers at Christys Beachcomber. He was a cashier at 7-Eleven. He doesnt
remember working at Sambos or Kayo Oil. He washed dishes at Pizza Hut and in the
kitchen at McKinzies Motels. He doesnt remember Southern Stevedoring, but did work
as a yard man, too.
He doesnt remember working out of the United Food and Commercial Workers
International Union. He doesnt know what that is. He doesnt what know Suderman
Stevedores or Marine Professional Services is. He did work cleaning ships for Maritime
20

Id.
Id.
22
Id. at 330.
23
Id. at 330, fn.3.
24
Bruce v. Bath Iron Works Corp., 25 BRBS 157 (1991); Trask v. Lockheed Shipbuilding and Constr. Co., 17
BRBS 56 (1985).
25
Labbe v. Bath Iron Works, 24 BRBS 159 (1991).
26
Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d. Cir. 1955), cert. denied, 350 U.S. 913 (1955).
27
General Ship Serv. v. Director, OWCP (Barnes), 938 F.2d 960 (9th Cir. 1991).
28
EX-7.
21

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Maintenance. He thinks that was after high school, but is not sure. He would go with a
big group and hope to be hired. He worked for Schrieber and Miller Furniture, moving
furniture. He worked for Daniel Thorn as a pool maintenance man. While working for
Thorn in 1992 or 1993, he suffered severe chemical burns and hasnt worked since.
He worked for Hotel Galvez and Ruby Tuesday as a dish washer. He doesnt remember
working for Southeast Packing, but did work as a yard man for Jeff Coats.
He worked for Local 20 for the wharf and for a banana boat. He picked up rice sacks for
Local 20 from a train. It wasnt on the wharf it was for the wharf. He would go to the
local to be picked for work and then walk about a mile to the trains. There was no water
at the trains and he couldnt see any. They put the bags on a pallet for a forklift to take.
He would also be picked to unload bananas from a boat. He was on the thing and sliding
the boxes of bananas off the boat. The boxes end up on the boat. 29 He wasnt on the boat
and cant swim. He could talk to the guys on the boat. He didnt work on the banana
boats too many times. It was easy work. It wasnt noisy, but he cant remember all that.
His momma first noticed that he had a hearing problem. She said it was bad that he
couldnt read and if he couldnt hear, nobody would understand what he was saying. He
has known he has a hearing problem, but he didnt have it all his life. He doesnt know
when it started or how he got it. Nobody hit him on the side of the head and he doesnt
have a history of hearing problems in his family.
The first time he got his hearing checked was in Houston when a friend said to get it
checked.30 He doesnt know anything about having had it checked since then. He got it
checked by that doctor and then went to other peoples doctors. He had a test and then
they said he had to do it again. He cant read and had his friend fill out the paperwork and
sign it. His friend didnt ask him for the information to put on the form. The doctors told
him one ear is better than the other, but he has a hearing problem.
He has occasional ear pain and drainage. He has ringing in his ears and used to use a
Miracle Ear he got form a TV ad. It helped him hear better. He doesnt want another
Miracle Ear. He doesnt know if his hearing has gotten worse over the past five years, but
it hasnt gotten better.
He got hit by a car and was in the hospital for a couple of days.
Paula Watson testified in deposition and her reports show in pertinent part:31
She is a doctor of audiology and does between 700 and 1,000 audiograms each year. On 2
Apr 13, Claimant came to her on referral from his counsel. She does 200 to 500
audiograms each year on referral from Claimants counsel. She has examinees fill out an
information form. She did not personally perform Claimants examination. Claimant was
29

Inconsistency in the original.


Claimants counsel stated that he made the appointment.
31
EX-2, 8; CX-1.
30

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tested via both air and bone conduction and showed a 13.1 binaural impairment. The
configuration indicated the loss resulted from exposure to loud noises. The testing report
does not show anything unusual or questionable. She cannot tell from examining the test
if any hearing loss is occupational, although a noise notch is an indication of noise related
hearing loss, but more likely a sudden intense noise. She would not necessarily expect to
find hearing loss in a 53 year old male.
Claimant indicated he had no hearing protection and was around loud tools, heavy
equipment, ships, and engine noises. She has reviewed other information and thinks
Claimant was exposed to loud noises from heavy equipment and machinery. Those things
can cause hearing loss and believes it is at least as likely as not that they did in
Claimants case.
Claimant indicated he had three previous hearing tests, but she knows nothing about
them. The Houston ENT test report does not have anything unusual or abnormal.
Audiograms can differ and the two tests appear to her to be similar. She would not
necessarily expect to see a decrease over 18 months in a 54 year old man.
Houston ENT records show in pertinent part:32
Claimant was examined and tested on 6 May 14 and found to have mild to moderate
bilateral sensorineural hearing loss.
Claimants Social Security Earning Records show in pertinent part:33
Year
1980

Employer
Gulf Lumbar
Floyds Service Center
Galveston City Park

1981
Mariner Management
Christies Beachcomber
Sambos Restaurant
7-Eleven
Prets Lumbar
1982
Kayo Oil
McKenzie Motels
Pizza Hut
1983

1986
32
33

Southern Stevedoring
United Food and Commercial Union 455
Employer

EX-4.
EX-5.

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Claimants Earnings (in $)


297.61
83.70
2,046.02
35.56
683.97
155.25
230.00
4,537.63
2,193.50
4,612.35
536.40
34.13
810.18
303.53
183.75
84.00
142.52

1988
1989
1990
1991
1992
1993

Marine Professional Services


Schrieber and Miller Furniture
Daniel Thorn
Hotel Galvez
Daniel Thorn
Ruby Tuesday
Southeast Packing
Jeffcoats Landscaping
ANALYSIS

37.80
1,829.00
7,700.00
11,792.00
514.31
11,830.00
942.34
384.54
16.87
661.50

The record clearly establishes that Claimant has a bodily harm in his hearing loss. The record
also establishes that loud noise could have caused the hearing loss. That leaves open for litigation
only one of the elements of a prima facie case of causation. Claimant retains the burden of
showing by a preponderance of the evidence that he was exposed to loud noise while working for
Employer.
Although Claimant testified by deposition and I was not able to observe him and assess his
demeanor, the transcript leads me to conclude that he was a very unreliable witness. While he
seems to have been honest and trying to answer to the best of his ability, he was trying to recall
events that had occurred decades earlier. He repeatedly said he could not recall important details
and did not even know anything about Employer or Marine Professional Services.
The most that can be taken from Claimants testimony is that (1) he worked for many employers;
(2) at some point he was involved in unloading (or perhaps loading, as there was some confusion
as to that point) bananas from a boat; (3) at another time he unloaded rice from a train at a
location that was not near the water; and (4) he went to a doctor to get his hearing checked. In
fairness to Claimant, the work on the rice train and banana boat happened 20+ years earlier.
Moreover, based on the amount he earned, ($37.80 from Marine and $183.75 from Employer)
the work was so short as to be incidental.
The audiologist chosen for Claimant by his counsel did testify that Claimant indicated he had no
hearing protection and was around loud tools, heavy equipment, ships, and engine noises.
Moreover, she said Claimants test results were consistent with noise exposure and believes it is
at least as likely as not that Claimants loss was caused by noise. On the other hand, she
conceded that she cannot tell where or when the exposure occurred. More significantly, Claimant
testified at the deposition that it was not noisy, even though he then added that he cannot
remember all that.
While there is some circumstantial evidence that indicates Claimant was exposed to noise, this
record is insufficient to prove that it is more likely than not that Claimant was exposed to
injurious noise while working for Employer.34

34

This finding renders moot the alternative arguments offered by Employer.

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ORDER AND DECISION


The claim is denied.
SO ORDERED this 15th day of January, 2015 at Covington, Louisiana.

Digitally signed by PATRICK


ROSENOW
DN: CN=PATRICK ROSENOW,
OU=ADMINISTRATIVE LAW JUDGE,
O=Office of Administrative Law Judges,
L=Covington, S=LA, C=US
Location: Covington LA

PATRICK M. ROSENOW
Administrative Law Judge

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