Arsenault v. BAE Systems Norfolk, No. 07-2031 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-2031 DONALD ARSENAULT, Petitioner, v. BAE SYSTEMS NORFOLK SHIP REPAIR; WORKERS COMPENSATION PROGRAMS, DIRECTOR, OFFICE OF Respondents. On Petition for Review of an Order of the Benefits Review Board. (07-0305) Argued: December 2, 2008 Decided: March 18, 2009 Before GREGORY and AGEE, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for Petitioner. Gerard E. W. Voyer, TAYLOR & WALKER, P.C., Norfolk, Virginia, for Respondents. ON BRIEF: Charlene A. Morring, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for Petitioner. Audrey Marcello, Natalie Pavon Mann, TAYLOR & WALKER, P.C., Norfolk, Virginia, for Respondent BAE Systems Norfolk Ship Repair. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Donald Arsenault appeals the decision of the Department of Labor Benefits Review Board ( BRB ) denying his claim for compensation from his employer, BAE Systems Norfolk Ship Repair ( BAE ), for occupational hearing loss under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901, et seq. (the Act ). Arsenault v. BAE Systems Norfolk Ship Repair, No. 07- 0305 (BRB Sept. 18, 2007) (unpublished). earlier Decision and Order of the The BRB reversed the Administrative Law Judge ( ALJ ), concluding that Arsenault failed to carry his burden of proof that his hearing loss was work-related. For the reasons stated below, we affirm the decision of the BRB. I. Arsenault began working specialist for BAE in 1986. as an electrical calibration In October, 2002, he filed a claim for worker s compensation benefits under the provisions of the Act, alleging a 26.9% bilateral hearing loss, as diagnosed by an audiogram 2002. conducted BAE at accepted BAE s the workplace claim and clinic on compensated August 21, Arsenault $22,607.30 for his hearing loss. The current dispute arises out of Arsenault s second claim for compensation. An audiogram administered at BAE s clinic on November 3, 2004, revealed a 29.4% binaural impairment, which 2 represents a 2.5% increase in hearing impairment over the loss for which he was previously compensated. Alleging that this increase was caused by exposure to work-related injurious noise subsequent to the August 21, 2002, audiogram, Arsenault claimed compensation for occupational hearing August, 2002, and November, 2004. loss incurred between BAE contested this claim on two grounds: (1) that Arsenault had no compensable increase in his hearing impairment; and (2) that he did not sustain exposure to injurious noise levels at his workplace. A. During a hearing held on April 18, 2006, ALJ Richard K. Malamphy considered the testimony of several witnesses, including Arsenault; two other BAE employees; Dr. John Erdreich, a physiological otolaryngogly and acoustician; and neck specialist. surgery Dr. Brian Deutsch, Apart from a the testimony and reports of Drs. Erdreich and Deutsch, no other medical evidence was presented. Arsenault testified that he was exposed to injurious noise on his walk between his vehicle and where he worked, 1 and from 1 Arsenault also testified that, due to knee problems, he was allowed to park near his work station, but that he had to walk slowly. During his walk, which could take as long as twenty to forty minutes, he was exposed to various noises in the shipyard, including machine noises from sandblasting operations and compressors on the pier. (J.A. 39.) 3 equipment operating near his work station in the calibration lab, located in the machine shop. any constant noise while While he was not exposed to in the calibration lab, occasionally heard noise from two nearby cranes. he (J.A. 36.) Two BAE employees also testified that, when the compressors are running on outside, raise the pier and individuals their voices sandblasting working in order in the to operations calibration be heard. are lab ongoing need (J.A. 32; to 74.) Finally, Arsenault testified that he was exposed to high-pitched grinding and welding noises during each of the trips he made across the shipyard to the marine electrical shop. made approximately six trips to the marine between August, 2002, and November, 2004. Dr. Erdreich was hired analysis of the BAE facility. by BAE to Arsenault electrical shop (J.A. 37-38.) conduct an acoustical He measured noise levels in the machine shop, with the cranes in operation, as well as on the path Arsenault walked from his vehicle to the building. Dr. Erdreich on the Safety and testified, noise-exposure based standards on set these by the measurements Occupational and Health Administration, that the noise to which Arsenault was exposed would not likely cause hearing loss. In Dr. Erdreich s words, the amount of exposure from the measurements would not be sufficient to produce noise-induced hearing loss. 100.) (J.A. After considering these results, as well as Arsenault s 4 audiograms and testimony, Dr. Erdreich further concluded that Arsenault was not exposed to injurious noise levels at BAE s facility between August, 2002, when he brought his original, successful claim for compensation, and November 3, 2004, when the audiogram administered. that forms the basis for this claim was (J.A. 101.) BAE also submitted the report and deposition testimony of Dr. Brian Deutsch, as well as his four audiometric evaluations of Arsenault. 2 Dr. Deutsch testified that Arsenault suffers from two types of hearing loss: conductive hearing loss, (1) inner ear hearing loss; and (2) related to his Eustachian tube and eardrum issues, 3 which is superimposed on top of the inner ear hearing loss. factors led (J.A. 419-20.) Dr. Deutsch to The combination of all of these characterize hearing loss as pretty significant. Arsenault s overall (Id.) Dr. Deutsch further stated that the audiometric evaluations he performed on Arsenault recorded both air-conduction and boneconduction values. Air-conduction studies measure the noise an individual can actually hear through the external and middle ears, and the results of these studies represent an individual s 2 Arsenault was examined in Dr. Deutsch s office on December 9, 2002; January 19, 2005; April 13, 2005; and May 24, 2005. 3 Arsenault underwent dysfunction in 1987. surgery 5 for Eustaschian tube entire hearing loss and overall hearing ability when you combine the noise exposure, the [E]ustachian tube, his age, his genetics, [and] anything (J.A. 416; 421.) else that may be playing a role. In contrast, bone-conduction studies isolate the inner ear and auditory nerve, and measure the sensorineural hearing loss, exposure. or Noise hearing loss exposure will attributed very solely specifically to noise cause an inner ear hearing loss, which will be reflected in the bone line. 4 (J.A. 418.) Based on the results of the bone-conduction testing, Dr. Deutsch concluded that Arsenault did not sustain any increase in his noise-induced hearing loss between 2002 and 2005. 5 In a decision and order issued November 15, 2006, the ALJ awarded additional benefits of $5,212.16 to Arsenault for his increased hearing loss. The ALJ determined that Arsenault was entitled to the invocation of the presumption, established in Section 20(a) of the Act, that his hearing loss was linked to 4 Arsenault does not dispute Dr. Deutsch s explanation of air-conduction and bone-conduction studies, and the types of hearing loss they measure. 5 Dr. Deutsch testified that petitioner certainly has had some noise induced hearing loss (J.A. 450), but that, based on the bone-conduction studies, there was no increase in noiseinduced hearing loss between 2002, when petitioner filed his first, successful claim for compensation, and 2005. (J.A. 42930.) This time period would necessarily include the audiogram administered in November, 2004, upon which this claim is based. 6 his employment. 6 The ALJ further concluded that the opinions of Dr. Erdreich and Dr. Deutsch, submitted by BAE, sufficiently rebutted the presumption. (J.A. 465.) However, the ALJ then characterized Dr. Erdreich s test results as speculative in light of Arsenault s testimony regarding exposed to at the workplace. (J.A. 466.) that that Dr. Deutsch conceded the noises he was The ALJ further found Arsenault has work-related hearing loss, even though he attributed most of the loss to other factors. evidence Arsenault and had (Id.) the Thus, after weighing all the relevant record as established a a whole, causal the ALJ concluded relationship that between his hearing loss and his employment, and that he was entitled to additional compensation. B. BAE appealed to the BRB, alleging that the ALJ erred in invoking the Section 20(a) presumption, and by concluding that Arsenault established additional work-related hearing loss from August, 2002, to November, 2004. order on September 18, 2007, The BRB issued an opinion and reversing the ALJ s award of compensation. 6 Section 20(a) of the Act creates a presumption that an individual s disabling condition is causally related to his employment. See 33 U.S.C. § 920(a). See infra Part II for discussion of this presumption and its legal effect. 7 The BRB upheld both the determination that Arsenault was entitled to the invocation of the Section 20(a) presumption, as well as the conclusion that BAE presented sufficient evidence to rebut the presumption. The only point on which the BRB reversed the ALJ was the propriety of the ALJ s ultimate determination that, based on the record as a whole, Arsenault s 2.5% increase in hearing loss was causally related to noise-exposure in the workplace. In determining additional that compensation, Arsenault the BRB was noted not that entitled Dr. to Deutsch expressly opined, based on the bone-conduction study results, that Arsenault did not sustain any increase in his noise-induced hearing loss between 2002 and 2004. did not introduce any medical Further, because Arsenault evidence that his increased hearing loss is due to noise exposure at his employment, the BRB held that he did not carry his burden of proof to show that noise exposure contributed to his increased hearing loss during this period. (J.A. 528.) The BRB concluded that the ALJ s finding that Arsenault was entitled to additional benefits for hearing loss was not supported by substantial reversed the ALJ s award of compensation. 8 evidence, and This appeal followed. II. We review BRB decisions for errors of law and for adherence to the statutory standard governing an ALJ s factual findings. See Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378, 380 (4th Cir. 2000). review by the Factual findings in the decision under BRB shall supported by substantial evidence in the record considered as a whole. 33 U.S.C. § 921(b)(3). be conclusive if The BRB, and this court, will uphold the factual findings of an ALJ, as long as they are supported by substantial evidence. We will not disregard those findings merely because other inferences might have been more reasonable. See Faulk, 228 F.3d at 380 (further characterizing substantial evidence as more than a scintilla but less than a preponderance, and such relevant evidence as a reasonable mind must accept as adequate quotations omitted)). to assess whether to support a conclusion (internal In short, we review decisions of the BRB substantial evidence supported the factual findings of the ALJ, and whether the legal conclusions of the BRB and the ALJ are rational and consistent with applicable law. See Sidwell v. Va. Int l Terminals, Inc., 372 F.3d 238, 241 (4th Cir. 2004) conclusions (noting is de further novo and that review without interpretation of the Act). 9 of the deference BRB s to the legal BRB s As previously stated, Section 20(a) of the Act creates a presumption that an individual s disabling condition is causally related to his employment. See 33 U.S.C. § 920(a). An employee seeking to have the benefit of the Section 20(a) presumption must allege (1) an injury or death (2) that arose out of and in the course of (3) his maritime employment. Universal Maritime Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997). After the presumption is invoked, the burden shifts to the employer to produce substantial evidence to rebut the presumption that the injury is causally connected to the claimant s employment. Id. If the employer does offer evidence sufficient to justify denial of the claim, the presumption disappears from the case and all relevant evidence must be weighed to determine if a causal relationship has been established, with [the] claimant bearing the ultimate burden of persuasion. Am. Stevedoring Ltd. v. Marinelli, 248 F.3d 54, 65 (2d Cir. 2001); accord Am. Grain Trimmers, Inc. v. Office of Workers Comp. Programs, 181 F.3d 810, 816-17 (7th Cir. 1999); Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81 (1994) (rejecting true doubt rule, under which burden of persuasion, not merely burden of production, shifts to party opposing benefits claim). 10 III. Arsenault contends that the BRB erred in determining that the ALJ s finding was not supported by substantial evidence. He raises three separate arguments in support of this claim. A. Title 33 U.S.C. § 908(c)(13)(E) provides: Determinations 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. The American Medical Association s Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (the AMA Guides ) direct that air-conduction studies shall be used when evaluating hearing loss, and that audiometric readings shall be taken at four specific frequencies. Arsenault first asserts that the BRB erred in relying on Dr. Deutsch s opinion, which was based on audiograms that, he alleges, did not conform to the AMA Guides. Arsenault argues that Dr. Deutsch s testing was flawed in two respects, only one of which merits discussion. 7 7 Although Dr. Arsenault argues that some of Dr. Deutsch s audiograms performed on petitioner failed to produce an audiometric reading at the 3,000 Hertz level, as required by the AMA Guides. Based on the information provided by Arsenault, however, the only audiogram that failed to produce a reading at this level was performed on January 19, 2005. Because the claim here at issue is solely based on an audiogram conducted November 3, 2004, which demonstrated the 2.5% increase in hearing loss, failure of (Continued) 11 Deutsch used both air-conduction and bone-conduction studies to determine the hearing loss, his conclusions about the cause of the hearing loss were based on the bone-conduction studies. explained that a noise-induced hearing loss will He very specifically cause an inner ear hearing loss, which will be reflected in the bone line. (J.A. 418.) Arsenault contends that this opinion was flawed because it did not follow the AMA Guides, which call for air-conduction studies to determin[e] hearing loss, and that the BRB erred in relying on this opinion. The BRB held that determination, as used in 33 U.S.C. § 903(c)(13)(E), refers to the extent of a claimant s hearing impairment, not the cause thereof. noting that the Longshore (J.A. 528 n.4.) Procedure Manual 8 Further directs that audiograms must reflect both air-conduction and bone-conduction studies, and that a finding as to the extent of the impairment should be made with reference to the air-conduction results, the BRB concluded that reliance subsequent audiograms irrelevant. to on Dr. conform 8 Deutsch s to the opinion AMA is not Guides is The manual is a publication of the Department of Labor s Employment Standards Administration. The chapter cited by the BRB contains the procedures for developing and adjudicating claims for loss of hearing allegedly due to employment covered by the Act. See Longshore and Harbor Workers Compensation Act Procedure Manual, 3-401.1. 12 precluded by the AMA Guides or the Longshore Procedure Manual. 9 (Id.) As the BRB is not a policymaking agency, its interpretation of the Act is not entitled to any special deference. See Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980). As noted above, this court reviews such interpretations de novo, Sidwell, 372 F.3d at 241, and we find that the BRB did not err in its interpretation of the Act. The AMA for Guides provide the methods employed under the Act measuring hearing loss, while the statute provides the formula for determining how such losses shall be compensated. Bethlehem Steel (emphasis added). and computing Corp., 24 F.3d 632, 634 (4th Baker v. Cir. 1994) The AMA Guides themselves refer to measuring hearing impairment, See AMA Guides, 247 (5th ed. 2001). not determining its cause. We concur with the BRB that reliance on Dr. Deutsch s opinion is precluded by neither the AMA Guides, nor, therefore, the Act. B. Next, Arsenault alleges that the BRB erred when it relied on Dr. Deutsch s opinion, which used a baseline comparison audiogram administered on December 9, 2002--almost four months 9 The ALJ did not address the propriety of Dr. Deutsch s reliance on the bone-conduction studies. 13 after the audiogram that formed the basis original, successful claim for compensation. for Arsenault s Because this case turns on the causation of the increased hearing loss between August 21, 2002, when the first claim for compensation was brought, and November, 2004, when the instant claim was filed, Arsenault alleges that baseline audiogram and Dr. Deutsch failed to relied account on for an the improper increased hearing loss that may have occurred between August 21, 2002, and December 9, 2002. Arsenault s argument Deutsch that Mr. hearing loss during that Arsenault the there did period not of December 9, 2002 misses the point. claimant bears the ultimate causation of the injury. Arsenault bears causation and he the has no suffer August evidence of put noise induced 21, 2002 through (Appellant s Br. 27.) of persuasion presenting forth from a as See Marinelli, 248 F.3d at 65. burden not burden is evidence substantial The to the Thus, regarding evidence or, indeed, any evidence of his own, showing that the increase was work-related. See infra III.C. The absence of such evidence from Dr. Deutsch is not sufficient to meet Arsenault s burden. 10 10 Because Dr. Deutsch concluded the increased hearing loss was not noise-induced, it necessarily follows that there was no evidence from Deutsch that Mr. Arsenault did not suffer a noise induced hearing loss . . . (Appellant s Br. 27.) Such an absence does not indicate that the hearing loss was noise(Continued) 14 For the foregoing reasons, the BRB did not err in relying on Dr. Deutsch s opinion. Dr. Deutsch presented unrebutted testimony that Arsenault did not sustain noise-induced hearing loss between at least December, 2002, and November, 2004, and Arsenault has presented nothing else in the way of medical evidence to show that he did sustain noise-induced hearing loss, either between August, 2002, and December, 2002, and November, 2004. December, 2002, or between See infra Part III.C. C. Finally, Arsenault contends that the BRB erred in finding that he failed to provide medical evidence supporting his claim that his hearing loss was caused by work-related noise. There was ALJ s substantial evidence, he argues, to support the finding that his increased hearing loss was due to occupational noise. Arsenault argues that the audiograms conducted by the BAE clinic and Dr. Deutsch, coupled with the testimony of the BAE employees and Arsenault himself, are sufficient evidence to show induced, and to assert otherwise perverts Dr. Deutsch s testimony and takes it out of context. As discussed above, supra Part I.A, Dr. Deutsch recognized that Arsenault had a pretty significant overall hearing loss. (J.A. 419-20.) He concluded, however, that there was no new or increased noiseinduced loss between 2002 and 2005. See supra n.5 and accompanying text. Logically and factually, there can be no cause absent an effect. 15 that conditions hearing loss. were present that could cause his increased However, Dr. Deutsch, the only medical expert to opine as to the cause of Arsenault s hearing loss, concluded that the increased hearing loss was not due to noise exposure in the workplace. As outlined above, the BRB did not err in relying on Dr. Deutsch s opinion, and Arsenault himself did not put forth any medical evidence regarding the causation of his hearing loss. See supra Parts III.A and B. Consequently, the BRB did not err in holding there was not substantial evidence before the ALJ to find that the 2.5% increase in hearing loss was caused by work-related injurious noise. IV. For properly the found foregoing that substantial evidence. reasons, the ALJ s we conclude decision was that not the supported BRB by Accordingly, we affirm the decision of the BRB, reversing the ALJ s award of compensation. AFFIRMED 16

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