5th Circuit says Board put its "thumb on the evidentiary scale...."

by Matthew H. Ammerman on June 13th, 2012

In this hearing loss claim under the Longshore & Harbor Workers' Compensation Act (LHWCA), the U.S. Court of Appeals for the 5th Circuit took the Benefits Review Board to task for an opinion it called "falling short legally in several respects." Ceres Gulf, Inc. v. Director, OWCP [Plaisance], 2012 U.S. App. LEXIS 11237 (5th Cir. June 4, 2012).

Norris Plaisance, now over 80 years old, worked for Ceres Gulf for his last six years of employment as a longshoreman ending in 1988. In 2006, he filed a claim for LHWCA benefits for 80.8% binaural hearing impairment and hearing aids.

In the first trial, the administrative law judge rejected Plaisance's claim. To rebut the presumption of compensability, Ceres presented evidence that Plaisance's work likely did not cause his hearing loss. The trial judge credited Ceres' audiologist Michael Seidemann, Ph.D., who said that Plaisance's hearing loss was not due to his exposure to noise at work. Plaisance's otosclerosis -- abnormal bone growth in the middle ear -- acted as natural earplug to block out a bulk of the noise at work. Plaisance’s hearing was better than other 80-year-olds who were not exposed to loud noise, which tended to show noise exposure in the 1980s did not harm his hearing. Dr. Seidemann also said Ceres' facility was similar to other facilities where the doctor had surveyed noise and found the noise level unharmful. On appeal, the Board reversed the trial judge, holding that the judge should not have relied on Ceres' evidence of noise surveys of other facilities and comparisons to other 80-year-olds. The Board sent the case back down to the trial judge, who then held Plaisance entitled to benefits though less than he wanted -- only 8.4% binaural hearing impairment.

Plaisance appealed again. The Board reversed in favor of Plaisance again, holding that the trial judge should have awarded benefits for all of Plaisance's hearing impairment because his non-work loss combined with his presumed work-related loss. Ceres, the Board said, should have proved that Plaisance's non-work-related otosclerosis occurred after he left Ceres to rebut the presumption. Without that burden met, Ceres should pay for all of Plaisance’s hearing loss. Ceres appealed to the 5th Circuit.

The 5th Circuit reversed the Board indicating the Board stepped into the trial judge's role and re-weighed the evidence. The court said "..the Board impermissibly placed a thumb on the evidentiary scale...." Though reasonable minds could differ, the trial judge credited Dr. Seidemann who said that Plaisance's hearing loss was not due to his exposure to noise at work. Dr. Seidemann, whose credentials the court called "unimpeachable," made rational, unequivocal conclusions on which the trial judge could reasonably rely. The court re-instated the trial judge's original findings and held Plaisance was not entitled to hearing loss benefits from Ceres.

At bottom, this case turns on whether the Board applied the proper standard for the shifting burden of the LHWCA. Claimant can easily invoke the presumption of compensability by showing harm that could have caused his work injury. The employer must then rebut with "substantial evidence" to show that the injury was not caused by employment. The 5th Circuit reversed the Board in this and prior cases holding that an employer should NOT be required to disprove Claimant's case to rebut the presumption. The employer must only show clear evidence that a "reasonable mind might accept as adequate to support a conclusion” that, for example, Plaisance's hearing loss was not caused by his employment. Ceres did that, and Plaisance then had the burden to persuade the trial judge that his hearing loss was work-related. He did not, thus, no hearing loss benefits
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Posted in Causation: Rebutting Presumption, LHWCA: Intervening Cause, LHWCA: Presumption    Tagged with hearing loss, longshore act, dr. seidemann, Section 20 Presumption, rebuttal, LHWCA

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