By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California
In a recent decision by the Benefits Review Board (Norris Plaisance, Sr. v. Ceres Gulf, BRB Nos. 10-0562, 10-0562A (June 24, 2011) (unpublished), the issue of the burden of proof was addressed when looking at conductive hearing loss vs. sensorineural hearing loss. It was assumed by some that conductive hearing loss was always nonindustrial and therefore it was the burden of the claimant to prove otherwise. In this decision, the Board found that a conductive hearing loss pre-existing the date of work stoppage was presumed to be work-related and the employer had the burden to rebut the presumption.
This decision also mentioned a standard for using noise testing on the employer's site and rejected tests that have been conducted generally at the employer's site but not specifically where the claimant worked. The Board also rejected the idea that a comparison of the claimant's hearing with that of a "normal" man could be used to establish that a claimant did not sustain a hearing loss at work.
The difference between conductive hearing loss and sensorineural hearing loss
According to the American Speech Language - Hearing Association, sensorineural hearing loss occurs when there is damage to the inner ear (cochlea) or to the nerve pathways from the inner ear to the brain. It can rarely be medically or surgically corrected. The ability to hear faint sounds is reduced and even when the speech is loud enough to hear, it still may be unclear or sound muffled.
Sensorineural hearing loss is usually caused by: illness, drugs that are toxic to hearing, genetic or hereditary hearing loss, aging, head trauma, malformation of the injured ear, or exposure to loud noise.
Conductive hearing loss happens when the sound is not conducted efficiently to the outer ear canal, to the eardrum, or to the tiny bones (ossicles) of the middle ear. It involves a reduction in sound level or ability to hear faint sounds. Unlike sensorineural hearing loss, conductive hearing loss can be medically corrected or corrected through surgery.
Well known causes of conductive hearing loss are: fluid in the middle ear from colds, ear infection, allergies, poor eustachian tube function, perforated eardrum, benign tumors, impacted ear wax, infection in the ear canal, presence of a foreign body, and absence or malformation of the outer ear, ear canal, or middle ear.
Thus, in the case being discussed, the absence of noise as being a factor in conductive hearing loss most certainly would lead the average person to believe that a conductive hearing loss would not be job-related. However, according to the causes listed above, one or more could be job-related, such as a perforated ear drum or presence of a foreign body. Therefore, there is some scientific justification for a presumption under section 20(a) (33 U.S.C.S. § 920(a)) of compensability of conductive hearing loss and shifting the burden to the employer to rebut the presumption.
The decision in Plaisance arises out of a second appeal to the Board after the first appeal resulted in a remand. The administrative law judge found that the claimant had worked for various employers as a stevedore up until his voluntary retirement in 1988. The first audiometric evaluation occurred in August of 2005. The first evaluation resulted in findings of both sensorineural and a conductive component. In a move not seen often, the U. S. Department of Labor appointed an independent medical examiner who concluded that there was a sensorineural hearing loss of 8.4% but it was not work-related because of the employer conducted noise studies and a comparison of the claimant's hearing with that of a "normal" man. The Board held in the first appeal that those two factors were insufficient to rebut the presumption of section 20(a) (33 U.S.C.S. § 920(a)). The independent medical examiner also excluded the claimant's conductive hearing loss as non-work-related. There was no comment as to why that examiner found that the conductive hearing loss was not related to work.
Thus the case was remanded for further action.
On remand, the ALJ found that there was no substantial evidence to rebut the presumption but the conductive component of the hearing loss was still found non-compensable because the record did not establish that the conductive hearing loss pre-existed the work-related component. Putting it another way, the ALJ required that the claimant prove that the conductive hearing loss pre-existed the work-related component.
Therefore the claimant appealed the decision on the issue of the judge failing to award benefits for the totality of the hearing loss, claiming that the conductive hearing loss was aggravated by the employment with the employer. The employer cross-appealed and contended that there was substantial evidence to rebut the presumption on the sensorineural award.
The Board denied the cross-appeal, supporting the ALJ's decision finding that the rebuttal was not supported by substantial evidence. Apparently the ALJ's decision cited testimony or parts of a report that indicated that the independent medical examiner acknowledged that the claimant's hearing loss may be related to noise exposure but the Board again found the independent medical examiner's report defective in that noise studies were not sufficient and the idea of using the "average man" standard was faulty.
Then the Board dealt with the claimant's appeal in which the claimant contended that he was entitled to the full extent of his hearing loss, including both conductive and sensorineural components.
The Board agreed, stating that under the section 20(a) presumption that the claimant's entire hearing impairment is work-related, "it is the employer's burden to produce substantial evidence that some portion of the disability is due to an intervening cause post-dating the work injury." The Board then cited Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 15 BRBS 120(CRT) (5th Cir. 1983); Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 12 BRBS 969(CRT) (5th Cir. 1981) (modified on reh'g, 657 F.2d 665, 13 BRBS 851(CRT) (5th Cir. 1981); Voris v. Texas Employers Insurance Association, 190 F.2d 929 (5th Cir. 1951); Davison v. Bender Shipbuilding & Repair Company, Inc., 30 BRBS 45 (1996); Bass v. Broadway Maintenance, 28 BRBS 11 (1994); James vs. Pate Stevedoring Company, 22 BRBS 271 (1989). The Board continued: "In a hearing loss case, the aggravation rule requires only that a claimant's disabilities combined in an additive way. Port of Portland [v. Director, OWCP (Ronne I)], 932 F.2d 836, 24 BRBS 137(CRT) [(9th Cir. 1991)]. Thus, where a claimant has an existing hearing loss and his work injury combines with that loss to create a greater loss, the employer is liable for the entire hearing loss. Epps v. Newport News Shipbuilding and Dry Dock Company, 19 BRBS 1 (1986)." (See Plaisance slip opinion, at 5.)
In conclusion, the Board found that the employer was liable for the full extent of the claimant's hearing loss unless it produced substantial evidence that the claimant's conductive hearing loss occurred subsequent to his retirement from the employer's job and is an intervening factor, relying on Shell Offshore, Inc. v. Director, OWCP (Gilliam), 122 F.3d 312, 31 BRBS 129(CRT) (5th Cir. 1997), cert. denied, 523 U.S. 1095, 140 L. Ed. 2d 794, 118 S. Ct. 1563 (1998).
© Copyright 2011 Steven M. Birnbaum. All rights reserved. Reprinted by permission.
This article will appear in an upcoming issue of the Benefits Review Board Service - Longshore Reporter (LexisNexis).
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