Arsenault v. BAE Systems Norfolk Ship Repair

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-2031

DONALD ARSENAULT,

Petitioner,

v.

BAE SYSTEMS NORFOLK SHIP REPAIR; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(07-0305)

Argued: December 2, 2008 Decided: March 18, 2009

Before GREGORY and AGEE, Circuit Judges, and Rebecca Beach
SMITH, United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P.,
Norfolk, Virginia, for Petitioner. Gerard E. W. Voyer, TAYLOR &
WALKER, P.C., Norfolk, Virginia, for Respondents. ON BRIEF:
Charlene A. Morring, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk,
Virginia, for Petitioner. Audrey Marcello, Natalie Pavon Mann,
TAYLOR & WALKER, P.C., Norfolk, Virginia, for Respondent BAE
Systems Norfolk Ship Repair.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Donald Arsenault appeals the decision of the Department of

Labor Benefits Review Board (“BRB”) denying his claim for

compensation from his employer, BAE Systems Norfolk Ship Repair

(“BAE”), for occupational hearing loss under the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (the

“Act”). Arsenault v. BAE Systems Norfolk Ship Repair, No. 07-

0305 (BRB Sept. 18, 2007) (unpublished). The BRB reversed the

earlier Decision and Order of the Administrative Law Judge

(“ALJ”), concluding that Arsenault failed to carry his burden of

proof that his hearing loss was work-related. For the reasons

stated below, we affirm the decision of the BRB.

I.

Arsenault began working as an electrical calibration

specialist for BAE in 1986. In October, 2002, he filed a claim

for worker’s compensation benefits under the provisions of the

Act, alleging a 26.9% bilateral hearing loss, as diagnosed by an

audiogram conducted at BAE’s workplace clinic on August 21,

2002. BAE accepted the claim and compensated Arsenault

$22,607.30 for his hearing loss.

The current dispute arises out of Arsenault’s second claim

for compensation. An audiogram administered at BAE’s clinic on

November 3, 2004, revealed a 29.4% binaural impairment, which

2
represents a 2.5% increase in hearing impairment over the loss

for which he was previously compensated. Alleging that this

increase was caused by exposure to work-related injurious noise

subsequent to the August 21, 2002, audiogram, Arsenault claimed

compensation for occupational hearing loss incurred between

August, 2002, and November, 2004. BAE contested this claim on

two grounds: (1) that Arsenault had no compensable increase in

his hearing impairment; and (2) that he did not sustain exposure

to injurious noise levels at his workplace.

A.

During a hearing held on April 18, 2006, ALJ Richard K.

Malamphy considered the testimony of several witnesses,

including Arsenault; two other BAE employees; Dr. John Erdreich,

a physiological acoustician; and Dr. Brian Deutsch, a

otolaryngogly and neck surgery specialist. Apart from the

testimony and reports of Drs. Erdreich and Deutsch, no other

medical evidence was presented.

Arsenault testified that he was exposed to injurious noise

on his walk between his vehicle and where he worked, 1 and from

1
Arsenault also testified that, due to knee problems, he
was allowed to park near his work station, but that he had to
walk slowly. During his walk, which could take as long as
twenty to forty minutes, he was exposed to various noises in the
shipyard, including machine noises from sandblasting operations
and compressors on the pier. (J.A. 39.)

3
equipment operating near his work station in the calibration

lab, located in the machine shop. While he was “not exposed to

any constant noise” while in the calibration lab, he

occasionally heard noise from two nearby cranes. (J.A. 36.)

Two BAE employees also testified that, when the compressors are

running on the pier and sandblasting operations are ongoing

outside, individuals working in the calibration lab need to

raise their voices in order to be heard. (J.A. 32; 74.)

Finally, Arsenault testified that he was exposed to high-pitched

grinding and welding noises during each of the trips he made

across the shipyard to the marine electrical shop. Arsenault

made approximately six trips to the marine electrical shop

between August, 2002, and November, 2004. (J.A. 37-38.)

Dr. Erdreich was hired by BAE to conduct an acoustical

analysis of the BAE facility. He measured noise levels in the

machine shop, with the cranes in operation, as well as on the

path Arsenault walked from his vehicle to the building. Dr.

Erdreich testified, based on these measurements and on the

noise-exposure standards set by the Occupational Safety and

Health Administration, that the noise to which Arsenault was

exposed would not likely cause hearing loss. In Dr. Erdreich’s

words, “the amount of exposure from the measurements would not

be sufficient to produce noise-induced hearing loss.” (J.A.

100.) After considering these results, as well as Arsenault’s

4
audiograms and testimony, Dr. Erdreich further concluded that

Arsenault was not exposed to injurious noise levels at BAE’s

facility between August, 2002, when he brought his original,

successful claim for compensation, and November 3, 2004, when

the audiogram that forms the basis for this claim was

administered. (J.A. 101.)

BAE also submitted the report and deposition testimony of

Dr. Brian Deutsch, as well as his four audiometric evaluations

of Arsenault. 2 Dr. Deutsch testified that Arsenault suffers from

two types of hearing loss: (1) inner ear hearing loss; and (2)

conductive hearing loss, related to his Eustachian tube and

eardrum issues, 3 which is “superimposed on top” of the inner ear

hearing loss. (J.A. 419-20.) The combination of all of these

factors led Dr. Deutsch to characterize Arsenault’s overall

hearing loss as “pretty significant.” (Id.)

Dr. Deutsch further stated that the audiometric evaluations

he performed on Arsenault recorded both air-conduction and bone-

conduction values. Air-conduction studies measure the noise an

individual can actually hear through the external and middle

ears, and the results of these studies represent an individual’s

2
Arsenault was examined in Dr. Deutsch’s office on December
9, 2002; January 19, 2005; April 13, 2005; and May 24, 2005.
3
Arsenault underwent surgery for Eustaschian tube
dysfunction in 1987.

5
“entire hearing loss” and “overall hearing ability when you

combine the noise exposure, the [E]ustachian tube, his age, his

genetics, [and] anything else that may be playing a role.”

(J.A. 416; 421.) In contrast, bone-conduction studies isolate

the inner ear and auditory nerve, and measure the sensorineural

hearing loss, or hearing loss attributed solely to noise

exposure. Noise exposure will “very specifically” cause an

inner ear hearing loss, which will be “reflected in the bone

line.” 4 (J.A. 418.) Based on the results of the bone-conduction

testing, Dr. Deutsch concluded that Arsenault did not sustain

any increase in his noise-induced hearing loss between 2002 and

2005. 5

In a decision and order issued November 15, 2006, the ALJ

awarded additional benefits of $5,212.16 to Arsenault for his

increased hearing loss. The ALJ determined that Arsenault was

entitled to the invocation of the presumption, established in

Section 20(a) of the Act, that his hearing loss was linked to

4
Arsenault does not dispute Dr. Deutsch’s explanation of
air-conduction and bone-conduction studies, and the types of
hearing loss they measure.
5
Dr. Deutsch testified that petitioner “certainly has had
some noise induced hearing loss” (J.A. 450), but that, based on
the bone-conduction studies, there was no increase in noise-
induced hearing loss between 2002, when petitioner filed his
first, successful claim for compensation, and 2005. (J.A. 429-
30.) This time period would necessarily include the audiogram
administered in November, 2004, upon which this claim is based.

6
his employment. 6 The ALJ further concluded that the opinions of

Dr. Erdreich and Dr. Deutsch, submitted by BAE, sufficiently

rebutted the presumption. (J.A. 465.) However, the ALJ then

characterized Dr. Erdreich’s test results as “speculative” in

light of Arsenault’s testimony regarding the noises he was

exposed to at the workplace. (J.A. 466.) The ALJ further found

that Dr. Deutsch conceded that Arsenault has work-related

hearing loss, even though he attributed most of the loss to

other factors. (Id.) Thus, after weighing all the relevant

evidence and the record as a whole, the ALJ concluded that

Arsenault had established a causal relationship between his

hearing loss and his employment, and that he was entitled to

additional compensation.

B.

BAE appealed to the BRB, alleging that the ALJ erred in

invoking the Section 20(a) presumption, and by concluding that

Arsenault established additional work-related hearing loss from

August, 2002, to November, 2004. The BRB issued an opinion and

order on September 18, 2007, reversing the ALJ’s award of

compensation.

6
Section 20(a) of the Act creates a presumption that an
individual’s disabling condition is causally related to his
employment. See 33 U.S.C. § 920(a). See infra Part II for
discussion of this presumption and its legal effect.

7
 The BRB upheld both the determination that Arsenault was

entitled to the invocation of the Section 20(a) presumption, as

well as the conclusion that BAE presented sufficient evidence to

rebut the presumption. The only point on which the BRB reversed

the ALJ was the propriety of the ALJ’s ultimate determination

that, based on the record as a whole, Arsenault’s 2.5% increase

in hearing loss was causally related to noise-exposure in the

workplace.

In determining that Arsenault was not entitled to

additional compensation, the BRB noted that Dr. Deutsch

expressly opined, based on the bone-conduction study results,

that Arsenault did not sustain any increase in his noise-induced

hearing loss between 2002 and 2004. Further, because Arsenault

“did not introduce any medical evidence that his increased

hearing loss is due to noise exposure at his employment,” the

BRB held that he “did not carry his burden of proof to show that

noise exposure contributed to his increased hearing loss during

this period.” (J.A. 528.) The BRB concluded that the ALJ’s

finding that Arsenault was entitled to additional benefits for

hearing loss was not supported by substantial evidence, and

reversed the ALJ’s award of compensation. This appeal followed.

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 II.

We review BRB decisions for errors of law and for adherence

to the statutory standard governing an ALJ’s factual findings.

See Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378,

380 (4th Cir. 2000). Factual findings in the decision under

review by the BRB “shall be conclusive if supported by

substantial evidence in the record considered as a whole.” 33

U.S.C. § 921(b)(3). The BRB, and this court, will uphold the

factual findings of an ALJ, as long as they are supported by

substantial evidence. We will not disregard those findings

merely because other inferences might have been more reasonable.

See Faulk, 228 F.3d at 380 (further characterizing substantial

evidence as “more than a scintilla but less than a

preponderance,” and “such relevant evidence as a reasonable mind

must accept as adequate to support a conclusion” (internal

quotations omitted)). In short, we review decisions of the BRB

to assess whether substantial evidence supported the factual

findings of the ALJ, and whether the legal conclusions of the

BRB and the ALJ are rational and consistent with applicable law.

See Sidwell v. Va. Int’l Terminals, Inc., 372 F.3d 238, 241 (4th

Cir. 2004) (noting further that review of the BRB’s legal

conclusions is de novo and without deference to the BRB’s

interpretation of the Act).

9
 As previously stated, Section 20(a) of the Act creates a

presumption that an individual’s disabling condition is causally

related to his employment. See 33 U.S.C. § 920(a). An employee

seeking to have the benefit of the Section 20(a) presumption

must allege “(1) an injury or death (2) that arose out of and in

the course of (3) his maritime employment.” Universal Maritime

Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997). After the

presumption is invoked, the burden shifts to the employer to

produce substantial evidence to rebut the presumption that the

injury is causally connected to the claimant’s employment. Id.

If the employer does offer evidence sufficient to justify denial

of the claim, the presumption disappears from the case and “all

relevant evidence must be weighed to determine if a causal

relationship has been established, with [the] claimant bearing

the ultimate burden of persuasion.” Am. Stevedoring Ltd. v.

Marinelli, 248 F.3d 54, 65 (2d Cir. 2001); accord Am. Grain

Trimmers, Inc. v. Office of Workers’ Comp. Programs, 181 F.3d

810, 816-17 (7th Cir. 1999); Director, OWCP v. Greenwich

Collieries, 512 U.S. 267, 280-81 (1994) (rejecting “true doubt

rule,” under which burden of persuasion, not merely burden of

production, shifts to party opposing benefits claim).

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 III.

Arsenault contends that the BRB erred in determining that

the ALJ’s finding was not supported by substantial evidence. He

raises three separate arguments in support of this claim.

A.

Title 33 U.S.C. § 908(c)(13)(E) provides: “Determinations

of loss of hearing shall be made in accordance with the guides

for the evaluation of permanent impairment as promulgated and

modified from time to time by the American Medical Association.”

The American Medical Association’s Guides to the Evaluation of

Permanent Impairment (5th ed. 2001) (the “AMA Guides”) direct

that air-conduction studies shall be used when evaluating

hearing loss, and that audiometric readings shall be taken at

four specific frequencies. Arsenault first asserts that the BRB

erred in relying on Dr. Deutsch’s opinion, which was based on

audiograms that, he alleges, did not conform to the AMA Guides.

Arsenault argues that Dr. Deutsch’s testing was flawed in

two respects, only one of which merits discussion. 7 Although Dr.

7
Arsenault argues that some of Dr. Deutsch’s audiograms
performed on petitioner failed to produce an audiometric reading
at the 3,000 Hertz level, as required by the AMA Guides. Based
on the information provided by Arsenault, however, the only
audiogram that failed to produce a reading at this level was
performed on January 19, 2005. Because the claim here at issue
is solely based on an audiogram conducted November 3, 2004,
which demonstrated the 2.5% increase in hearing loss, failure of
(Continued)
11
Deutsch used both air-conduction and bone-conduction studies to

determine the hearing loss, his conclusions about the cause of

the hearing loss were based on the bone-conduction studies. He

explained that a noise-induced hearing loss will “very

specifically” cause “an inner ear hearing loss, which will be

reflected in the bone line.” (J.A. 418.) Arsenault contends

that this opinion was flawed because it did not follow the AMA

Guides, which call for air-conduction studies to “determin[e]”

hearing loss, and that the BRB erred in relying on this opinion.

The BRB held that “determination,” as used in 33 U.S.C.

§ 903(c)(13)(E), refers to the extent of a claimant’s hearing

impairment, not the cause thereof. (J.A. 528 n.4.) Further

noting that the Longshore Procedure Manual 8 directs that

audiograms must reflect both air-conduction and bone-conduction

studies, and that a finding as to the extent of the impairment

should be made with reference to the air-conduction results, the

BRB concluded that reliance on Dr. Deutsch’s opinion is not

subsequent audiograms to conform to the AMA Guides is
irrelevant.
8
The manual is a publication of the Department of Labor’s
Employment Standards Administration. The chapter cited by the
BRB contains the procedures for developing and adjudicating
claims for loss of hearing allegedly due to employment covered
by the Act. See Longshore and Harbor Workers’ Compensation Act
Procedure Manual, 3-401.1.

12
precluded by the AMA Guides or the Longshore Procedure Manual. 9

(Id.)

As the BRB is not a policymaking agency, its interpretation

of the Act is not entitled to any special deference. See

Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278

n.18 (1980). As noted above, this court reviews such

interpretations de novo, Sidwell, 372 F.3d at 241, and we find

that the BRB did not err in its interpretation of the Act. The

AMA Guides “provide the methods employed under the Act for

measuring hearing loss,” while the statute provides the formula

for determining how such losses shall be compensated. Baker v.

Bethlehem Steel Corp., 24 F.3d 632, 634 (4th Cir. 1994)

(emphasis added). The AMA Guides themselves refer to measuring

and computing hearing impairment, not determining its cause.

See AMA Guides, 247 (5th ed. 2001). We concur with the BRB that

reliance on Dr. Deutsch’s opinion is precluded by neither the

AMA Guides, nor, therefore, the Act.

B.

Next, Arsenault alleges that the BRB erred when it relied

on Dr. Deutsch’s opinion, which used a baseline comparison

audiogram administered on December 9, 2002--almost four months

9
The ALJ did not address the propriety of Dr. Deutsch’s
reliance on the bone-conduction studies.

13
after the audiogram that formed the basis for Arsenault’s

original, successful claim for compensation. Because this case

turns on the causation of the increased hearing loss between

August 21, 2002, when the first claim for compensation was

brought, and November, 2004, when the instant claim was filed,

Arsenault alleges that Dr. Deutsch relied on an improper

baseline audiogram and failed to account for the increased

hearing loss that may have occurred between August 21, 2002, and

December 9, 2002.

Arsenault’s argument that “there is no evidence from

Deutsch that Mr. Arsenault did not suffer a noise induced

hearing loss during the period of August 21, 2002 through

December 9, 2002” misses the point. (Appellant’s Br. 27.) The

claimant bears the ultimate burden of persuasion as to the

causation of the injury. See Marinelli, 248 F.3d at 65. Thus,

Arsenault bears the burden of presenting evidence regarding

causation and he has not put forth substantial evidence or,

indeed, any evidence of his own, showing that the increase was

work-related. See infra III.C. The absence of such evidence

from Dr. Deutsch is not sufficient to meet Arsenault’s burden. 10

10
Because Dr. Deutsch concluded the increased hearing loss
was not noise-induced, it necessarily follows that there was “no
evidence from Deutsch that Mr. Arsenault did not suffer a noise
induced hearing loss . . .” (Appellant’s Br. 27.) Such an
absence does not indicate that the hearing loss was noise-
(Continued)
14
 For the foregoing reasons, the BRB did not err in relying

on Dr. Deutsch’s opinion. Dr. Deutsch presented unrebutted

testimony that Arsenault did not sustain noise-induced hearing

loss between at least December, 2002, and November, 2004, and

Arsenault has presented nothing else in the way of medical

evidence to show that he did sustain noise-induced hearing loss,

either between August, 2002, and December, 2002, or between

December, 2002, and November, 2004. See infra Part III.C.

C.

Finally, Arsenault contends that the BRB erred in finding

that he failed to provide medical evidence supporting his claim

that his hearing loss was caused by work-related noise. There

was substantial evidence, he argues, to support the ALJ’s

finding that his increased hearing loss was due to occupational

noise.

Arsenault argues that the audiograms conducted by the BAE

clinic and Dr. Deutsch, coupled with the testimony of the BAE

employees and Arsenault himself, are sufficient evidence to show

induced, and to assert otherwise perverts Dr. Deutsch’s
testimony and takes it out of context. As discussed above,
supra Part I.A, Dr. Deutsch recognized that Arsenault had a
“pretty significant” overall hearing loss. (J.A. 419-20.) He
concluded, however, that there was no new or increased noise-
induced loss between 2002 and 2005. See supra n.5 and
accompanying text. Logically and factually, there can be no
cause absent an effect.

15
that conditions were present that could cause his increased

hearing loss. However, Dr. Deutsch, the only medical expert to

opine as to the cause of Arsenault’s hearing loss, concluded

that the increased hearing loss was not due to noise exposure in

the workplace. As outlined above, the BRB did not err in

relying on Dr. Deutsch’s opinion, and Arsenault himself did not

put forth any medical evidence regarding the causation of his

hearing loss. See supra Parts III.A and B. Consequently, the

BRB did not err in holding there was not substantial evidence

before the ALJ to find that the 2.5% increase in hearing loss

was caused by work-related injurious noise.

IV.

For the foregoing reasons, we conclude that the BRB

properly found that the ALJ’s decision was not supported by

substantial evidence. Accordingly, we affirm the decision of

the BRB, reversing the ALJ’s award of compensation.

AFFIRMED

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