Former Longshoreman Successfully Appeals to Fourth Circuit

Green-Brown v. Sealand Services, No. 08-1236 (October 2009)

The United States Court of Appeals for the Fourth Circuit reversed a decision of the Benefits Review Board of the United States Department of Labor ("Board") when it did not assess petitioner's hearing loss compensation based on the American Medical Association Guides to Evaluation of Permanent Impairment ("AMA"). The challenged Board decision affirmed the administrative law judge's decision to award hearing loss compensation under the Longshore and Harbor Workers' Compensation Act ("LHWCA") codified at 33 U.S.C. §§ 901-50.

Green-Brown was a shipping container repairman for Sealand Services, Inc. ("Sealand"). While employed there, he was exposed to loud noises such as air hammers, impact guns, and compressors. He filed for partial disability benefits for his hearing loss under the LHWCA. Sealand never disputed that Green-Brown suffered some degree of hearing loss.

The issue was whether certain audiograms taken of Green-Brown may be used to determine the amount of his compensable hearing loss. The LHWCA must follow the AMA guides, which require that each ear be tested separately at 500, 1000, 2000, and 3000 hertz frequencies. Petitioner was tested in 1987 at the following frequencies ¿ 500, 1000, 2000, 4000, and 8000. The 1987 test shows a binaural hearing loss of 5.65 percent.

A second audiogram was administered at 250 frequency level. The results did not differ much from the first. In 2003, a third audiogram was given and it tested at the following frequencies -- 250, 500, 1000, 2000, 4000, and 8000. A fourth was given in 2005 at the same frequencies and providing the same results. The final audiogram was given in 2005, eighteen years after his retirement, and it tested at a 3000 hertz frequency. This showed a binaural hearing loss of 28.7 percent.

Sealand contends that the Petitioner's compensable hearing loss should be calculated at 5.65 percent based on the 1987 test. Petitioner argued that it should be calculated at 28.7 percent based on the 2005 test, because it was the only test that complied with the AMA guidelines.

The Fourth Circuit applied the plain language meaning of the statute to determine that the 2005 audiogram must be used and Petitioner's disability benefits must be calculated at 28.7 percent. Sealand argued that their tests did comply with the LHWCA. In particular, Sealand points to the LHWCA provision stating:

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 audiogram, with the report thereon, was provided to the employee at the time it was administered, and (iii) no contrary audiogram made at the time is produced.

33 U.S.C. § 908©(13)(C). The court found that Sealand was ignoring a later provision that required "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 [AMA]." See 33 U.S.C. §©(13)(E). Thus, construing the statutory language together, the Fourth Circuit reversed and remanded with instructions to assess compensation in accordance with the 2005 test results.