Documente Academic
Documente Profesional
Documente Cultură
No. 07-2031
DONALD ARSENAULT,
Petitioner,
v.
BAE SYSTEMS NORFOLK SHIP REPAIR;
WORKERS COMPENSATION PROGRAMS,
DIRECTOR,
OFFICE
OF
Respondents.
Argued:
December 2, 2008
Decided:
PER CURIAM:
Donald Arsenault appeals the decision of the Department of
Labor
Benefits
Review
Board
(BRB)
denying
his
claim
for
Decision
and
Order
of
the
Administrative
Law
Judge
I.
Arsenault
began
working
as
an
electrical
calibration
conducted
BAE
at
accepted
BAEs
the
workplace
claim
and
clinic
on
compensated
August
21,
Arsenault
for
occupational
hearing
loss
incurred
between
considered
the
testimony
of
several
witnesses,
physiological
otolaryngogly
and
acoustician;
and
neck
specialist.
surgery
Dr.
Brian
Deutsch,
Apart
from
a
the
constant
noise
while
in
the
calibration
lab,
he
(J.A. 36.)
Two BAE employees also testified that, when the compressors are
running
on
outside,
raise
the
pier
and
individuals
their
voices
sandblasting
working
in
order
in
the
to
operations
calibration
be
heard.
are
lab
ongoing
need
(J.A.
32;
to
74.)
approximately
six
trips
to
the
marine
Erdreich
was
hired
by
BAE
to
Arsenault
electrical
shop
(J.A. 37-38.)
conduct
an
acoustical
Dr.
Erdreich
on
the
Safety
and
testified,
noise-exposure
based
standards
on
set
these
by
the
measurements
Occupational
and
In Dr. Erdreichs
(J.A.
audiogram
administered.
that
forms
the
basis
for
this
claim
was
(J.A. 101.)
hearing
loss,
to
his
Eustachian
tube
and
led
(J.A. 419-20.)
Dr.
Deutsch
to
Arsenaults
overall
(Id.)
Arsenault
underwent
dysfunction in 1987.
surgery
for
Eustaschian
tube
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
role.
the inner ear and auditory nerve, and measure the sensorineural
hearing
loss,
exposure.
or
Noise
hearing
exposure
loss
will
attributed
very
solely
specifically
to
noise
cause
an
(J.A. 418.)
his employment. 6
(J.A. 465.)
of
Arsenaults
testimony
regarding
(J.A. 466.)
that
that
Dr.
Deutsch
conceded
the
noises
he
was
Arsenault
has
work-related
and
had
(Id.)
the
record
as
established
whole,
causal
the
ALJ
concluded
relationship
that
between
his
on
September
18,
2007,
the
ALJs
award
of
compensation.
determining
additional
that
compensation,
Arsenault
the
BRB
was
noted
not
that
entitled
Dr.
to
Deutsch
not
introduce
any
medical
evidence
that
his
increased
(J.A. 528.)
loss
was
not
supported
by
substantial
evidence,
and
II.
We review BRB decisions for errors of law and for adherence
to the statutory standard governing an ALJs factual findings.
See Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378,
380 (4th Cir. 2000).
review
by
the
BRB
shall
supported
by
33
U.S.C. 921(b)(3).
be
conclusive
if
evidence.
We
will
not
disregard
those
findings
as
more
than
scintilla
but
less
than
accept
as
adequate
quotations omitted)).
to
assess
whether
to
support
conclusion
(internal
substantial
evidence
supported
the
factual
2004)
conclusions
(noting
is
de
further
novo
and
that
review
without
of
the
deference
BRBs
to
the
legal
BRBs
An employee
Universal Maritime
After the
Id.
evidence
must
be
weighed
to
determine
if
causal
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
10
III.
Arsenault contends that the BRB erred in determining that
the ALJs finding was not supported by substantial evidence.
He
air-conduction
studies
shall
be
used
when
evaluating
Although Dr.
that
noise-induced
hearing
loss
will
He
very
(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 claimants hearing
impairment, not the cause thereof.
noting
that
the
Longshore
Procedure
Manual 8
Further
directs
that
concluded
that
reliance
subsequent
audiograms
irrelevant.
to
on
Dr.
conform
Deutschs
to
the
opinion
AMA
is
not
Guides
is
12
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
The
AMA
for
Guides
provide
the
methods
employed
under
the
Act
Steel
(emphasis added).
and
computing
Corp.,
24
F.3d
632,
634
(4th
Baker v.
Cir.
1994)
hearing
impairment,
not
determining
its
cause.
Dr.
Deutschs
opinion,
which
used
baseline
comparison
13
after
the
audiogram
that
formed
the
basis
for
Arsenaults
21,
2002,
when
the
first
claim
for
compensation
was
brought, and November, 2004, when the instant claim was filed,
Arsenault
alleges
that
baseline
audiogram
and
Dr.
Deutsch
failed
to
relied
account
on
for
an
the
improper
increased
hearing loss that may have occurred between August 21, 2002, and
December 9, 2002.
Arsenaults
argument
Deutsch
that
Mr.
hearing
loss
during
that
Arsenault
the
there
did
period
not
of
bears
the
ultimate
bears
causation
and
he
the
has
no
suffer
August
evidence
of
put
noise
induced
21,
2002
through
persuasion
presenting
forth
from
as
burden
not
burden
is
evidence
substantial
The
to
the
Thus,
regarding
evidence
or,
indeed, any evidence of his own, showing that the increase was
work-related.
10
For the foregoing reasons, the BRB did not err in relying
on
Dr.
Deutschs
opinion.
Dr.
Deutsch
presented
unrebutted
has
presented
nothing
else
in
the
way
of
medical
between
August,
2002,
and
December,
2002,
or
between
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
ALJs
substantial
evidence,
he
argues,
to
support
the
15
that
conditions
hearing loss.
were
present
that
could
cause
his
increased
workplace.
As
outlined
above,
the
BRB
did
not
err
in
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
properly
the
found
foregoing
that
substantial evidence.
reasons,
the
ALJs
we
conclude
decision
was
that
not
the
supported
BRB
by
16