FILED
NOT FOR PUBLICATION JUL 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DIRECTOR, OFFICE OF WORKERS No. 09-72979
COMPENSATION PROGRAMS, United
States Department Of Labor, OWCP No. 09-0557
Petitioner,
MEMORANDUM *
v.
MATSON TERMINALS,
INCORPORATED; et al.,
Respondents.
On Petition for Review of an Order of the
Office of Workers Comp Program
Argued and Submitted June 15, 2011
Honolulu, Hawaii
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
The Director, Office of Workers’ Compensation Programs (“OWCP”)
petitions for review of a final decision by the Department of Labor Benefits
Review Board (“Board”) granting partial Special Fund relief to Matson Terminals,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Inc., under Section 8(f) of the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C §§ 901-950. The Board determined that under Section
8(f), Matson is entitled to Special Fund relief for a portion of its compensation
liability owed to a former employee, George Kunihiro. We deny the petition for
review.
The Director’s argument that the Board’s ruling contravenes the plain
language of Section 8(f)’s enabling regulations, 20 C.F.R. §§ 702.321 and 702.441,
is not persuasive. “As a general interpretative principle, ‘the plain meaning of a
regulation governs.’” Safe Air for Everyone v. United States EPA, 488 F.3d 1088,
1097 (9th Cir. 2007) (quoting Wards Cove Packing Corp. v. Nat'l Marine Fisheries
Serv., 307 F.3d 1214, 1219 (9th Cir. 2002)).
Section 702.321(a)(1) sets forth the procedures for determining applicability
of Section 8(f) to claims for injury due to loss of hearing. 20 CFR § 702.321(a)(1).
It provides, in part, that “[i]f the injury is loss of hearing, the pre-existing hearing
loss must be documented by an audiogram which complies with the requirements
of § 702.441.” Id. Here, the administrative law judge found that Matson provided
reliable and probative evidence of Kunihiro’s hearing loss under Section 8(f).
Indeed, the Director has conceded that the audiograms Matson administered to
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Kunihiro complied with the requirements of § 702.441(b)(1), the only provision
that directly and specifically addresses the requirements for audiograms.
Section 702.441(b) states that an audiogram shall be presumptive evidence
of the amount of hearing loss on the date it was administered if it meets certain
requirements. Among them is the requirement that “[t]he employee was provided
the audiogram and a report thereon at the time it was administered or within thirty
(30) days thereafter.” 20 CFR § 702.441(b)(2). The requirement that an employee
receive a copy of his audiogram was related to notice and statute of limitations
provisions. See Jones Stevedoring Co. v. Dir., OWCP, 133 F.3d 683, 689 (9th Cir.
1997) (“Congress explained that the purposes of requiring the employee to receive
the audiogram are to give him time to file a claim and to allow him to undertake
steps in his job to prevent further exposure to loud noise.”) (citing H.R. Rep. No.
98-570, Part I, at 9-10 (1984), reprinted in 1984 U.S.C.C.A.N. 2734, 2742-43).
Under the plain language of the statute, § 908(c)(13)(C) of the LHWCA and
supporting regulation § 702.441(b)(2) are guidelines by which an employer can
ensure that an audiogram will constitute presumptive evidence of hearing loss for
Section 8(f) purposes. An employer seeking relief from the Section 8(f) Special
Fund, who does not comply with § 8(c)(13)(C) requirements, must depend on the
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fact finding authority of the administrative law judge to certify whether its
evidence for Special Fund relief is reliable and probative.
Because the undisputed audiogram evidence demonstrated that the employee
suffered a hearing loss, we deny the petition for review.
PETITION DENIED.
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