PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLAIRE GREEN-BROWN,
Petitioner,
v.
SEALAND SERVICES, INCORPORATED; No. 08-1236
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(07-0507)
Argued: September 22, 2009
Decided: October 29, 2009
Before WILKINSON and MICHAEL, Circuit Judges,
and Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Petition for review granted; reversed and remanded by pub-
lished opinion. Judge Michael wrote the opinion, in which
Judge Wilkinson and Judge Keeley joined.
COUNSEL
ARGUED: Gregory Edward Camden, MONTAGNA,
KLEIN, CAMDEN, LLP, Norfolk, Virginia, for Petitioner.
2 GREEN-BROWN v. SEALAND SERVICES
Patrick Michael Brogan, DAVEY & BROGAN, PC, Norfolk,
Virginia, for Respondents. ON BRIEF: Charlene A. Morring,
MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia,
for Petitioner. Mark E. Newcomb, Kelly A. Mosteller,
DAVEY & BROGAN, PC, Norfolk, Virginia, for Respondent
Sealand Services, Incorporated.
OPINION
MICHAEL, Circuit Judge:
Arthur L. Brown, a former longshore worker, petitioned for
review of a decision of the Benefits Review Board of the U.S.
Department of Labor (BRB or Board). Brown passed away
after his petition was filed, and Claire Green-Brown, his
widow and executrix, has been substituted as petitioner. The
challenged BRB decision affirms the administrative law
judge’s decision that awarded hearing loss compensation to
Brown under the Longshore and Harbor Workers’ Compensa-
tion Act (LHWCA or Act), 33 U.S.C. §§ 901-50, based on an
audiogram that did not comply with the American Medical
Association Guides to the Evaluation of Permanent Impair-
ment (AMA Guides). We reverse because § 908(c)(13)(E) of
the LHWCA mandates that hearing loss compensation be
based on hearing loss determinations made in accordance with
the AMA Guides. On remand benefits will be calculated
based on the one audiogram that complies with the AMA
Guides.
I.
Arthur Brown worked as a shipping container repairman
for Sealand Services, Inc. (Sealand) for approximately seven-
teen years before retiring on May 1, 1987. At Sealand Brown
worked in a four-bay shop where he was exposed to loud
noises from air hammers, impact guns, compressors, and
GREEN-BROWN v. SEALAND SERVICES 3
other sources. Brown filed a timely LHWCA claim for partial
disability benefits due to noise-induced hearing loss suffered
while he was employed by Sealand. The company agrees that
Brown had some work-related hearing loss, but it disputes the
extent of Brown’s compensable loss. The controversy centers
on whether certain audiograms administered to Brown may be
used to determine the amount of his compensable hearing
loss. The LHWCA requires that hearing loss determinations
must be made according to the AMA Guides for evaluating
permanent impairment. 33 U.S.C. § 908(c)(13)(E). The AMA
Guides, among other things, require that each ear be tested
separately at the 500, 1000, 2000, and 3000 hertz frequencies.
AMA Guides to the Evaluation of Permanent Impairment
§ 11.2a, at 247 (5th ed. 2001).
Evidence submitted to the ALJ included the following.
Brown’s first audiogram was administered on October 1,
1987 (1987 audiogram), five months after his retirement from
Sealand. It tested both ears separately at the 500, 1000, 2000,
4000, and 8000 hertz frequencies. The 1987 audiogram
reflects a binaural hearing loss of 5.65 percent. A second
audiogram was administered on August 9, 1988. In addition
to the levels tested by the 1987 audiogram, the second audio-
gram tested at the 250 hertz frequency. Its results closely
track the 1987 audiogram. A third audiogram was adminis-
tered on April 2, 2003. It tested at the 250, 500, 1000, 2000,
4000, and 8000 hertz frequencies. A fourth audiogram admin-
istered on September 2, 2005, tested at the same frequencies.
The final audiogram was administered to Brown on October
4, 2005 (October 2005 audiogram), eighteen years after his
retirement from Sealand. It tested both ears separately at the
same hertz frequencies as the previous tests, but it also
included testing at the 3000 hertz frequency. The October
2005 audiogram was the only one that tested at the 3000 hertz
frequency, as required by the AMA Guides. The October
2005 audiogram reflects binaural hearing loss of 28.7 percent.
Sealand presented testimony from a medical expert, Paul
Lambert, M.D., an otolaryngologist. Dr. Lambert testified that
4 GREEN-BROWN v. SEALAND SERVICES
the 3000 hertz frequency is typically not tested in an audio-
gram and that it is standard medical practice to substitute
4000 hertz when 3000 is not available. Dr. Lambert, however,
could not cite any medical literature that supports substituting
the 4000 hertz frequency for the 3000 frequency. Dr. Lambert
acknowledged that the 3000 hertz frequency, as opposed to
the 4000 frequency, "helps with distinguishing the disability
of a hearing loss in background noise." J.A. 134. In other
words, according to Dr. Lambert, the 3000 frequency "proba-
bly gives a little better reflection of what the day to day dis-
ability might be." J.A. 134. Dr. Lambert opined that Brown’s
increase in hearing loss between the 1987 audiogram and the
October 2005 audiogram was not caused by his prior expo-
sure to noise at the Sealand workplace. Rather, Dr. Lambert
believed that advancing age was the primary cause of the
additional hearing loss. Finally, Dr. Lambert reviewed the
records of the 1987 and 1988 audiograms administered to
Brown. These tests were accurate, Dr. Lambert concluded,
because they were internally consistent, and the results of
both tests were essentially the same.
Sealand contended that Brown’s compensable hearing loss
should be calculated at 5.65 percent based on the 1987 audio-
gram. Brown contended that his compensable hearing loss
should be calculated at 28.7 percent based on the October
2005 audiogram—the only audiogram that complied with the
AMA Guides. The ALJ recognized that the 1987 audiogram,
which did not test at the 3000 hertz frequency, was not in
compliance with the AMA Guides, as required by
§ 908.13(c)(13)(E) of the LHWCA. The ALJ concluded, how-
ever, that an audiogram that complied with the AMA Guides
and the statutory conditions in § 908(c)(13)(C) was simply
presumptive evidence of the amount of hearing loss sustained
as of the date of the test. Nothing in the statute, the ALJ held,
precluded consideration of an audiogram that was not in com-
pliance with the AMA Guides if the evidence established that
the non-compliant audiogram was a reliable indicator of hear-
ing loss. After crediting Dr. Lambert’s testimony that the
GREEN-BROWN v. SEALAND SERVICES 5
1987 audiogram was reliable, the ALJ found that the 1987
audiogram, which shows a binaural hearing loss of 5.65 per-
cent, was "a better indicator of [Brown’s] compensable hear-
ing loss than a subsequent audiogram performed 18 years
after [his] retirement," which shows a 28.7 percent loss. J.A.
277A. Accordingly, the ALJ awarded compensation based on
the 1987 audiogram.
Brown appealed to the BRB. The Board held that the ALJ
was not "precluded from crediting the 1987 audiogram due to
its lack of technical compliance with the AMA Guides." J.A.
363. In affirming the ALJ’s decision, the Board concluded
that the ALJ "rationally found that the 1987 audiogram was
the best measure of claimant’s work-related hearing loss at
the time he retired." Id. Brown petitioned this court for review
of the BRB’s decision.
II.
We must decide the following issue of statutory interpreta-
tion: whether 33 U.S.C. § 908(c)(13)(E) requires LHWCA
hearing loss compensation to be based on hearing loss deter-
minations made in accordance with the AMA Guides for the
evaluation of permanent impairment. Our review is de novo.
Newport News Shipbuilding & Dry Dock Co. v. Pounders,
326 F.3d 455, 458 (4th Cir. 2003); see also Newport News
Shipbuilding & Dry Dock Co. v. Stallings, 250 F.3d 868, 871
(4th Cir. 2001) (The BRB’s "adjudicatory interpretation of the
LHWCA is entitled to no special deference, and is subject to
our independent review.").
Section 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 Associ-
ation." 33 U.S.C. § 908(c)(13)(E) (emphasis added). Congress
enacted this provision in 1984 to establish uniform standards
for determining compensable hearing loss under the LHWCA.
6 GREEN-BROWN v. SEALAND SERVICES
See Pub. L. No. 98-426, § 8, 98 Stat. 1639 (1984). Section
908(c)(13)(E) was necessary because the absence of a "single
formula [for evaluating] hearing loss claims" under the Act
had led to "unpredictab[le] and nonuniform impairment deter-
minations." 130 Cong. Rec. 25,906 (1984) (statement of Rep.
Erlenborn). Thus, the purpose of § 908(c)(13)(E) is to ensure
that "determinations of hearing loss will be grounded on a
uniform external and professionally acceptable basis—the
AMA Guides to the Evaluation of Permanent Impairment."
Id. The AMA Guides are specified because they are "the most
widely accepted medical standards and [Congress] wish[ed]
to assure that determinations will always be in accordance
with the most recently revised edition." H.R. Rep. No. 98-
1027, at 28 (1984) (Conf. Rep.), reprinted in 1984
U.S.C.C.A.N. 2771, 2778.
We read § 908(c)(13)(E) according to "the basic and unex-
ceptional rule that courts must give effect to the clear meaning
of statutes as written." Estate of Cowart v. Nicklos Drilling
Co., 505 U.S. 469, 476 (1992) (interpreting § 33(g) of the
LHWCA). The provision unequivocally mandates that deter-
minations of hearing loss "shall be made" according to the
AMA Guides. 33 U.S.C. § 908(c)(13)(E). The AMA Guides
are equally clear in providing that "the following step[ ]
should be taken" in administering an audiogram: "Test each
ear separately with a pure-tone audiometer and record the
hearing levels at 500, 1000, 2000, and 3000 Hz [hertz]. It is
necessary that the hearing level for each frequency be deter-
mined in every subject." AMA Guides § 11.2a, at 247 (5th ed.
2001) (emphasis added). The same requirements appear in the
edition of the AMA Guides in effect at the time of Brown’s
1987 audiogram. AMA Guides 154 (2d ed. 1984).
In this case the 1987 audiogram, used by the ALJ to deter-
mine Brown’s hearing loss and compensation, did not mea-
sure hearing at the 3000 hertz frequency as required by the
AMA Guides. The second edition of the guides explained that
"3,000 Hz is included to provide an accurate assessment of
GREEN-BROWN v. SEALAND SERVICES 7
hearing impairment in a variety of everyday listening condi-
tions." AMA Guides 154 (2d ed. 1984). Sealand’s expert, Dr.
Lambert, acknowledged that the 3000 hertz frequency "gives
a little better reflection of what the day to day disability might
be." J.A. 134.
According to the ALJ, an audiogram with accurate and reli-
able test readings that did not test at the AMA Guides-
stipulated 3000 hertz frequency may still be used to determine
hearing loss and compensation. The only qualification, the
ALJ held, is that such a non-compliant audiogram cannot be
offered as "presumptive evidence of the amount of hearing
loss" under § 908(c)(13)(C), which provides:
An audiogram shall be presumptive evidence of the
amount of hearing loss sustained as of the date
thereof, only if (i) such audiogram was administered
by a licensed or certified audiologist or a physician
who is certified in otolaryngology, (ii) such audio-
gram, with the report thereon, was provided to the
employee at the time it was administered, and (iii) no
contrary audiogram made at that time is produced.
33 U.S.C. § 908(c)(13)(C). Notwithstanding subsection (C),
§ 908(c)(13)(E) still mandates that all hearing loss determina-
tions must be made in accordance with an audiogram that
complies with the AMA Guides. As the BRB recently
explained: "an administrative law judge evaluating a claim
under [§ 908(c)(13)] may credit an audiogram as determina-
tive evidence of hearing loss so long as it complies with
[§ 908(c)(13)(E)]. If the audiogram meets the additional
requirements of [§ 908(c)(13)(C)], it may further serve as
‘presumptive evidence’ of a hearing loss." R.H. v. Bath Iron
Works Corp., B.R.B. No. 07-0739, 2008 WL 899271, at *2
(March 28, 2008). The ALJ therefore missed the mark when
he determined that the 1987 non-compliant audiogram was
only disqualified as presumptive evidence of hearing loss. It
was disqualified entirely.
8 GREEN-BROWN v. SEALAND SERVICES
We hold that § 908(c)(13)(E) requires that a hearing loss
and compensation determination must be made using an ABA
Guides-compliant audiogram. The ALJ therefore erred in
relying on the 1987 audiogram to make the determination
because that audiogram did not include a test at the 3000 hertz
frequency, as required by the AMA Guides.
Our holding means that compensation will be awarded in
this case based on the October 2005 audiogram, the only one
in the record that complies with the AMA Guides. That audio-
gram may be used, consistent with Board precedent, even
though it was administered eighteen years after Brown retired
from Sealand. See Labbe v. Bath Iron Works Corp., 24
B.R.B.S. 159, 1991 WL 55439, at *3 (1991) (affirming a ben-
efits decision in which the ALJ had (1) credited a 1986 audio-
gram that complied with the AMA Guides and (2) discredited
a 1967 audiogram that did not list the credentials of the tester,
even though this audiogram was administered closer to the
time the claimant had left covered employment).
We grant the petition for review, reverse the BRB’s deci-
sion, and remand for an award of compensation based on the
October 2005 audiogram, which complies with the AMA
Guides.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED