Nothing and something leaves nothing according to Fourth Circuit

by Matthew H. Ammerman on October 2nd, 2011

The U.S. Court of Appeals for the 4th Circuit rejects an award of hearing loss benefits in this recent case under the Longshore & Harbor Workers' Compensation Act. The trial judge equally credited both a 0% impairment rating by the defense audiologist and a 3.75% binaural impairment rating by Claimant’s audiologist and averaged the results. Averaging is acceptable, but the trial judge’s error was concluding that no ratable impairment and some ratable impairment should amount to some ratable impairment. Instead, once the Section 20 presumption is rebutted, Claimant has the burden of proof. Here, Claimant did not meet his burden because the evidence was evenly balanced. Therefore, no Longshore compensation should have been awarded according to the 4th Circuit. Ceres Marine Terminal, Inc. v. Green, 2011 U.S. App. LEXIS 18489 (4th Cir. September 6, 2011)

Robert Green, a longtime ILA member, complained that he was exposed to loud noises while working at Ceres Marine Terminals in 2007. He worked installing cargo container “shoes,” which are twist locks that fasten one container to another on a cargo ship. The containers banged against the truck chassis when loading causing loud noise to which Green says he was exposed. He also claimed he worked near loud cranes and on diesel forklifts without hearing protection.

Joseph Gillespie, a licensed and board-certified audiologist, performed a comprehensive audiological evaluation of Green on July 11, 2007. Mr. Gillespie found high-frequency hearing loss, 3.75% binaural impairment, and recommended that Green use Widex Inteo in-the-ear hearing aids at a cost of $6,500 per pair.

Stuart Cohen, a licensed and board-certified audiologist, tested Green's hearing at Ceres’ request. Cohen found 0% binaural hearing impairment. The lack of ratable impairment, however, does not preclude the necessity of hearing aids. Mr. Cohen found that Green had “mild to moderate, bilateral, sensorineural hearing loss” and recommended that Green use the Phonak UNA MAZ behind-the-ear hearing aid. Phonak hearing aids cost $2,500 per pair.

The administrative law judge who heard the case found that the hearing tests were “equally probative.” The judge averaged the 0% and 3.75% ratings and awarded benefits. The Board affirmed. The Fourth Circuit, however, rejected the benefit award because Green did not prove his case. Green invoked the presumption of compensability, Ceres rebutted it with evidence of no ratable impairment, and the burden fell back on Green to prove he had ratable hearing impairment by a greater weight of the credible evidence. Greenwich Collieries v. Dir., OWCP, 512 U.S. 267 (1994). The ALJ credited both experts equally, therefore, the evidence was evenly balanced. The Supreme Court holds in the Greenwich Collieries case that when the presumption is rebutted and the evidence is evenly balanced, a tie does not go to the runner. Claimant should lose for not meeting his burden of proof.

Green was, however, entitled to a less expensive Phonak hearing aid, which Ceres conceded that it would pay for. The appellate court remanded the case on the sole issue of whether Green’s attorney was entitled to an award of fees, and, if so, how much based on the award of one hearing aid.

The Fourth Circuit specific holding here is that an ALJ cannot average a “zero” result with a higher result to find that a hearing impairment exists. Though only a small amount of money was at stake, the larger principle is important. Unlike civil lawsuits, under the Longshore Act the worker can initially throw the burden on the employer to disprove his entitlement to benefits. But if the employer rebuts the claimant’s initial presumption with some credible evidence, the claimant is required to prove his case by persuading the judge by the greater weight of the evidence. Green did not, therefore, the 4th Circuit held he had no entitlement to hearing impairment compensation.

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