Maxey v. Suderman Contracting Stevedores (ALJ 2015)

8/9/2019 Maxey v. Suderman Contracting Stevedores (ALJ 2015)

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U.S. Department of Labor Office of Administrative Law Judges5100 Village Walk, Suite 200Covington, 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.2The matter

133 U.S.C. 901-950.2Henceforth collectively Employer.


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was referred to the Office of Administrative Law Judges for a formal hearing on 15 Apr 14. Allparties were represented by counsel and agreed to waive personal appearances, submitting thematter on the written record only. My decision is based upon the entire record, which consists ofthe following:3

ExhibitsEmployers (EX) 1-10Claimants (CX) 1-2

My findings and conclusions are based upon the stipulations of counsel, the evidenceintroduced, 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 Sep13.4. 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 anunrelated 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 heworked 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 maritimeemployer.

LAW

In the absence of any substantial evidence to the contrary, the Act presumes that a claimcomes within its provisions.4The presumption takes effect once the claimant establishes aprimafaciecase by proving he suffered some harm or pain and a work-related condition or accident

3I have reviewed and considered all testimony and exhibits admitted into the record. Reviewing authorities shouldnot infer from my citations to some portions of witness testimony and items of evidence that I did not consider thosethings not specifically mentioned or cited.433 U.S.C. 920(a).


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which could have caused the harm.5Once the presumption applies, the burden is on the employerto go forward with substantial countervailing evidence to rebut that the injury was caused by theclaimant's employment.6Once an employer offers sufficient evidence to rebut the presumption, itis 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 atissue based on the evidence.8 In making that determination, more weight may be given to onemedical opinion over another.9However, the presumption does not apply to the issue of whethera physical harm or injury occurred10and does not aid the claimant in establishing the nature andextent of disability.11

The Act has specific rules for cases of hearing loss. A hearing loss is a scheduled injurywith a specific compensation scheme allowing for 52 weeks of compensation for loss of hearingin one ear and 200 weeks for loss in both ears.12The Act provides that [a]n audiogram shall bepresumptive evidence of the amount of hearing loss sustained as of the date thereof, onlyifsuch 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 bemade in accordance with the guides for the evaluation of permanent impairment as promulgatedand modified from time to time by the American Medical Association.14

It is clearly established through the aggravation doctrine that the employer takes theemployee 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. 15The aggravation rule applies in the cases of hearing loss,16 including losses due to aging(presbycusis)17and birth defects.18

The rule has its origins, in part, in recognition of the difficulty in apportioning thedegree of disability between pre-employment (or non-employment) causes and employmentcauses[.]19 However, the purpose of the aggravation rule is not simply to avoid difficult issues

5Gooden v. Dir., OWCP, 135 F.3d 1066 (5th Cir. 1998).6Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1081-82 (D.C. Cir. 1976), cert. denied, 429 U.S. 820 (1976).7Noble Drilling Co. v. Drake, 795 F.2d 478 (5th Cir. 1986).8Id.9Coffy v. Marine Terminals Corp., 34 BRBS 85 (2000).10Devine v. Atl. Container Lines, G.I.E., 25 BRBS 15, 19 (1990).11Bruce v. Bath Iron Works Corp., 25 BRBS 157, 159 (1991) (the record contained no evidence reflecting theclaimants 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).1333 U.S.C. 908(c)(13)(C).1433 U.S.C. 908(c)(13)(E).15See, 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). 16Epps v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 1 (1986).17Ronne v. Jones Or. Stevedoring Co. , 22 BRBS 344, 348 (1989)aff'd in pertinent part and rev'd on other groundssub nomPort of Portland v. Dir., OWCP, 932 F.2d 836 (9th Cir. 1991).18Worthington v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 200 (1986).19Newport 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.20Even if the evidence is clear thatallocation of disability is not entirely due to employment-related conditions, the rule still holdsthe employer liable.21 The fact that some pre-employment injuries, such as hearing loss, aremeasurable while others are not is not enough to prevent a given employee from collecting fullcompensation.

22A 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 nextvalid 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 anyimpairment disclosed by that testing.24 Claimants are not necessarily required to recreate theprecise extent of their hearing loss at the date their covered employment ended. In the absence ofcredible evidence regarding the extent of a claimant's hearing loss at the time he leaves coveredemployment, the administrative law judge may evaluate the evidence of record and rely on themost 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 lastemployment in which the claimant was exposed to injurious noise.26That rule applies even whenprior employers have contributed to the loss to avoid the difficulties and delays connected withtrying to apportion liability among employers.27

EVIDENCE

Claimant testif ied at depositi on hearing in pertinent part that:28

He was born in 1959. He worked at a number of jobs while he was in high school. Afterleaving high school in 1979 he worked driving a truck for Gulf Lumber. He worked at agas station. He worked as a repairman at a city park. He worked as a customer serviceassistant at Prets Lumber. He doesnt remember working for Mariner Management. He

made hamburgers at Christys Beachcomber. He was a cashier at 7-Eleven. He doesntremember working at Sambos or Kayo Oil. He washed dishes at Pizza Hut and in thekitchen 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.21Id.22Id.at 330.23Id.at 330, fn.3.24Bruce v. Bath Iron Works Corp., 25 BRBS 157 (1991); Trask v. Lockheed Shipbuilding and Constr. Co., 17BRBS 56 (1985).25Labbe v. Bath Iron Works, 24 BRBS 159 (1991).26Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d. Cir.1955), cert. denied, 350 U.S. 913 (1955).27General Ship Serv. v. Director, OWCP (Barnes), 938 F.2d 960 (9th Cir. 1991).28EX-7.


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Maintenance. He thinks that was after high school, but is not sure. He would go with abig group and hope to be hired. He worked for Schrieber and Miller Furniture, movingfurniture. He worked for Daniel Thorn as a pool maintenance man. While working forThorn 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 rememberworking 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 forLocal 20 from a train. It wasnt on the wharf it was for the wharf. He would go to thelocal to be picked for work and then walk about a mile to the trains. There was no waterat the trains and he couldnt see any. They put the bags on a pallet for a forkl ift to take.He would also be picked to unload bananas from a boat. He was on the thing and slidingthe boxes of bananas off the boat. The boxes end up on the boat. 29He wasnt on the boatand cant swim. He could talk to the guys on the boat. He didnt work on the bananaboats 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 hecouldnt read and if he couldnt hear, nobody would understand whathe was saying. Hehas 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 doesnthave 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 itchecked.30He doesnt know anything about having had it checked since then. He got itchecked 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 andsign it. His friend didnt ask him for the information to put on the form. The doctors toldhim 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 aMiracle 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 testif ied in depositi on 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 2Apr 13, Claimant came to her on referral from his counsel. She does 200 to 500audiograms each year on referral from Claimants counsel. She has examinees fill out aninformation form. She did not personally perform Claimants examination. Claimant was

29Inconsistency in the original.30Claimants counsel stated that he made the appointment.31EX-2, 8; CX-1.


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tested via both air and bone conduction and showed a 13.1 binaural impairment. Theconfiguration indicated the loss resulted from exposure to loud noises. The testing reportdoes not show anything unusual or questionable. She cannot tell from examining the testif any hearing loss is occupational, although a noise notch is an indication of noise relatedhearing 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, heavyequipment, ships, and engine noises. She has reviewed other information and thinksClaimant was exposed to loud noises from heavy equipment and machinery. Those thingscan cause hearing loss and believes it is at least as likely as not that they did inClaimants case.

Claimant indicated he had three previous hearing tests, but she knows nothing aboutthem. 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 moderatebilateral sensorineural hearing loss.

Claimants Social Security Earning Records show in pertinent part:33

Year Employer Claimants Earnings (in $)

1980 Gulf Lumbar 297.61

Floyds Service Center 83.70Galveston City Park 2,046.02

1981 35.56

Mariner Management 683.97

Christies Beachcomber 155.25

Sambos Restaurant 230.00

7-Eleven 4,537.63

Prets Lumbar 2,193.50

1982 4,612.35

Kayo Oil 536.40

McKenzie Motels 34.13

Pizza Hut 810.181983 303.53

Southern Stevedoring 183.75

United Food and Commercial Union 455 84.00

1986 Employer 142.52

32EX-4.33EX-5.


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Marine Professional Services 37.80

Schrieber and Miller Furniture 1,829.00

1988 Daniel Thorn 7,700.00

1989 11,792.00

Hotel Galvez 514.31

1990 Daniel Thorn 11,830.001991 942.34

Ruby Tuesday 384.54

1992 Southeast Packing 16.87

1993 Jeffcoats Landscaping 661.50

ANALYSIS

The record clearly establishes that Claimant has a bodily harm in his hearing loss. The recordalso establishes that loud noise could have caused the hearing loss. That leaves open for litigationonly one of the elements of a prima facie case of causation. Claimant retains the burden ofshowing 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 hisdemeanor, the transcript leads me to conclude that he was a very unreliable witness. While heseems to have been honest and trying to answer to the best of his ability, he was trying to recallevents that had occurred decades earlier. He repeatedly said he could not recall important detailsand 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 confusionas 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. Infairness 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 nohearing 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 isat 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, Claimanttestified 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, thisrecord is insufficient to prove that it is more likely than not that Claimant was exposed toinjurious noise while working for Employer.34

34This finding renders moot the alternative arguments offered by Employer.


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ORDER AND DECISION

The claim is denied.

SO ORDEREDthis 15thday of January, 2015 at Covington, Louisiana.

PATRICK M. ROSENOWAdministrative Law Judge

Digitally signed by PATRICKROSENOW

DN: CN=PATRICK ROSENOW,OU=ADMINISTRATIVE LAW JUDGE,

O=Office of Administrative Law Judges,L=Covington, S=LA, C=US

Location: Covington LA

Documents

Maxey v. Suderman Contracting Stevedores (ALJ 2015)