I Can See Clearly Now, Just Can’t Hear So Good

I Can See Clearly Now, Just Can’t Hear So Good

Stephen Embry By Stephen Embry, Embry and Neusner, Groton, Connecticut

In the study of the law styled jurisprudence, there are many schools of thought. Some students of the law believe that past cases predict the future and that precedent must prevail. In this philosophy, past words have meaning and are the expression of internal logic that controls and instructs us as to how current and future conflicts must be resolved. Others follow another road, believing that past cases are at best examples of isolated arguments that worked in the past and may be instructive of arguments that may be useful in the future.

Since jurisprudence is a philosophy and not a science, both houses serve to shelter some cases; however, every now and then a decision is published that seems to be homeless and parentless, and that is unlikely to produce many prodigy. Such cases may be of isolated importance, but express principles of law so narrow that they are unlikely to be repeated. Gore v. Bush, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525 (2000), for instance, stands for the principle that when Justices vote the second time for the election of the President of the United States, they will likely follow precedent and vote for the same person they supported in the general election.

Other cases are of less impact, but equally driven by the facts of the case. Ceres Gulf, Incorporated v. Director, OWCP; Norris Plaisance, Sr., No. 11-60456, 46 BRBS ___(CRT) (5th Cir. June 4, 2012) seems to fall into this category. A brief review of the facts suggests the outcome that might be expected. Mr. Plaisance worked as a longshoreman from the 1950’s until he retired in 1988. He developed a hearing loss in the 1970’s sufficient enough to require the purchase of hearing aids in 1976. In 2006 he filed a claim for benefits for hearing loss under the Longshore and Harbor Workers’ Compensation Act. Evidence was admitted that Mr. Plaisance had a mixed sensorineural and conductive hearing loss. The Circuit Court in a footnote lifted from the American Speech Language Hearing Association opined that a conductive loss describes a hearing problem conducting sound waves through the ear system. See n. 1. This problem was otosclerosis, which the employer’s expert emphasized could not be work related and which was the largest component of Mr. Plaisance’s impairment. Indeed, Dr. Seidemann commented for the employer that the otosclerosis acted like an earplug to protect Mr. Plaisance’s nerves from the harmful effect of noise, which produces a sensorineural loss. Dr. Seidemann further suggested that Mr. Plaisance had better hearing than would typically be found in a person 80 years old. Finally the ALJ admitted and considered ambient noise level tests taken at other sites years after Mr. Plaisance’s employment that did not show harmful levels of noise at sites which had nothing to do with Mr. Plaisance’s case or injury. Of these facts, the ones most likely to have predictive power regarding the outcome were that Mr. Plaisance was now 80 years old (although this was not the case in 1976 when his hearing had gotten so bad he purchased hearing aids), he had retired nearly a quarter century before the decision (and 12 years after purchasing hearing aids), and he presently had better hearing than a typical 80-year-old gentleman. The Circuit Court did not elaborate on these issues however.

Instead, the Circuit Court concentrated on sequential elements involving the rebuttal of the section 20 presumption (33 U.S.C.S. § 920(a)). Namely, could the fact that Mr. Plaisance had better hearing than the typical 80-year-old be substantial evidence that noise had not contributed to his hearing loss? Could noise level tests that had nothing to do with the locations, times or conditions that Mr. Plaisance endured be substantial evidence that noise levels somewhere and sometime else did not contribute to his hearing loss? Dr. Seidemann acknowledged that noise can cause a hearing loss such as suffered by Mr. Plaisance, but opined that noise did not actually cause this hearing loss since OTHER PEOPLE his age often had worse hearing, and noise levels that Mr. Plaisance WAS NOT exposed to would not have been harmful.

The BRB had reversed, noting that the existence of the otosclerosis was irrelevant under the aggravation doctrine that the employer takes the worker as it finds him. In this case, there was also an un-aggravation issue. Mr. Plaisance’s otosclerosis made his total hearing loss worse and his total hearing loss was greater because of the combination of the conductive and nerve loss, but the otosclerosis acted as a prophylactic to lessen the effect of noise on the nerves. If Mr. Plaisance had not had otosclerosis, it is probable that his noise exposure would have had a worse impact on him.

The BRB also rejected the idea that noise level tests having nothing to do with Mr. Plaisance’s working environment could be substantial evidence that the noise he was actually exposed to was harmful to him.

On the surface, the BRB’s reasoning seems unassailable. In order to rebut the presumption, the employer must present substantial evidence that the injury is not related to the specific clamant (33 U.S.C.S. § 920 (a)). One might normally suspect that substantial evidence would have to be admissible, reasonable and relevant.

On its face, the evidence the employer submitted regarding noise levels was not relevant to the issues in this case. In order to rebut the presumption, the employer must either put forth evidence such as a reasonable person might believe that the claimant was not exposed to injurious noise at the actual place he worked or that it did not contribute to his hearing loss. Where the evidence has no probative value or relevance since it did not adequately represent the actual noise the claimant was exposed to, it could not be substantial evidence. Indeed, it was not admissible evidence. The Fifth Circuit, however, skirted this gaping hole by instead saying that relevance goes to the weight and not the admissibility of the evidence, and that the weight to be accorded the evidence is solely within the discretion of the ALJ. In the future, claimants would be well advised to submit audiograms from another worker with a worse hearing loss and noise level tests from drop forges since under the Ceres test there is no requirement that the evidence have anything to do with the case.

The Circuit Court also rejected the BRB’s holding that evidence of general causation could not be used to defeat special causation. In the tort field, there is a two-step test for determining toxic causation. The claimant must generally produce evidence that exposure to a substance is injurious. This may be done by introduction of epidemiological studies showing that exposure to the substance increases the incidence of the disease or injury beyond that found in unexposed populations, i.e., an odds ratio of greater than one, and evidence that the plaintiff was exposed to injurious substances. This is the claimant’s burden at the first step in the section 20 presumption. Once that is done, the tort plaintiff must present differential evidence that it was more probable than not that the injurious exposure was a substantial factor in contributing to the specific injury. Under the Longshore Act, this specific causation is presumed if the injury is consistent with the exposure. The employer cannot rebut specific causation at the second level of the section 20 analyses by epidemiological testimony since the issue is specific to the person (specific causation).  The Circuit Court acknowledges this and agreed that there might be a reason Mr. Plaisance had less hearing loss than the typical 80 year old. In fact, of course, there was: He had otosclerosis that limited the deleterious impact noise would have on him. But this did not act as substantial evidence to rebut the statutory presumption that Mr. Plaisance’s actual exposure to noise contributed to his actual hearing loss. The presumption was that had he not been exposed to noise, he would have had even better hearing. However, the Circuit Court said that the mere offering of a potential alternative cause could act as substantial evidence that it was the only cause. The Circuit Court ruled that this was simply a credibility issue in the discretion of the court. However, suppose the claimant had offered the same evidence at the general causation level. Suppose Dr. Seidmann testified that noise and aging could both have contributed to or explained the loss. (This was the testimony of Dr. Irwin, a neutral expert who was found to be most credible according to the decision.) This would have invoked the presumption, and the burden would then shift to the employer to prove by substantial evidence that noise did not contribute at least in some way to the injury. If Dr. Seidmann’s testimony was enough to invoke the presumption, how could it be substantial evidence to the contrary? Could the employer rebut the presumption by reading the testimony that proved the prima facie case?

The BRB had cited the Fifth Circuit’s decision in Ibos that the employer at least had the burden of proving that the exposure to the injurious factor did not cause the injury [New Orleans Stevedores v. Ibos, 317 F.3d 480, 485, 36 BRBS 93(CRT) (5th Cir. 2003), cert. den. 540 U.S. 1141, 157 L. Ed. 2d 952, 124 S. Ct. 1038 (2004)] -- a holding that seems reasonable. The Fifth Circuit offered a distraction, if not precisely a distinction, suggesting without explanation that there may be a different standard for the definition of substantial evidence in occupational disease claims than in other cases. Well, it is not clear what these “other cases” are, or at least Ceres does not make the distinction clear. There is mumbling of a different standard for those diseases with multiple causes, such as hearing loss, as opposed to mesothelioma, where there is no dispute about causation. But can Congress really have intended that there shall be a presumption of causation, but only for those injuries where causation is not disputable?

So what does Ceres stand for? Believers in the Formalism School of jurisprudence may struggle to determine what elements of universal truth have been divulged, and which will act as determinative logic and precedent to guide future litigants. Those in the Realism School may be mindful of Justice Holmes’ observation that experience, not logic, is the spirit of the law. I suspect it suggests that 80-year-old retired workers with otosclerosis and better than typical hearing might sometimes lose their case and, if they do, they may also lose on appeal. Ultimately, that was the holding in Ceres, and it does not tell us much about the law or the presumption.

© Copyright 2012 Stephen C. Embry. All rights reserved. Reprinted by permission. This article will appear in a forthcoming issue of the Benefits Review Board Service—Longshore Reporter (LexisNexis).

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