                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 14 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOHN E. SCHIESSL,                                No. 12-72909

              Petitioner,                        BRB No. 11-0671

  v.
                                                 MEMORANDUM*
GEORGIA-PACIFIC CORPORATION;
ACE AMERICAN INSURANCE
COMPANY, AKA Sedgwick CMS;
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

              Respondents.


                     On Petition for Review of an Order of the
                              Benefits Review Board

                       Argued and Submitted March 6, 2014
                                Portland, Oregon

Before: GOODWIN, TROTT, and W. FLETCHER, Circuit Judges.

       John E. Schiessl petitions for review of the Benefits Review Board’s order

affirming the denial of partial permanent disability benefits for Schiessl’s hearing

loss. We have jurisdiction under 33 U.S.C. § 921(c), and we deny the petition.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      To rebut the presumption that Schiessl’s hearing loss was compensable,

Georgia-Pacific Corp. was required to present “substantial evidence that is

‘specific and comprehensive enough to sever the potential connection between the

disability and the work environment.’” Haw. Stevedores, Inc. v. Ogawa, 608 F.3d

642, 651 (9th Cir. 2010) (quoting Ramey v. Stevedoring Servs. of Am., 134 F.3d

954, 959 (9th Cir. 1998)); see also 33 U.S.C. § 920. We agree with the Board that

Georgia-Pacific satisfied its burden of production. Dr. Hodgson’s review of the

noise studies combined with his interpretation of Schiessl’s audiogram results

sufficiently supported his conclusion that Schiessl ceased encountering injurious

levels of occupational noise before his hearing loss qualified as an impairment

under the Longshore and Harbor Workers Compensation Act. Taken as a whole,

Dr. Hodgson’s opinion “could satisfy a reasonable factfinder that [Schiessl’s

hearing loss] was not work-related.” Ogawa, 608 F.3d at 651.

      Moreover, the administrative law judge concluded after weighing all the

evidence in the case that work-related noise did not contribute to Schiessl’s hearing

loss after December 1, 1999. “[H]is decision as to the weight of the evidence may

not be disturbed by the court.” See Schwirse v. Dir., Office of Workers’ Comp.

Programs, 736 F.3d 1165, 1172 (9th Cir. 2013) (quoting Del Vecchio v. Bowers,

296 U.S. 280, 287 (1935)).


                                         2
      This conclusion also distinguishes Schiessl’s case from Port of Portland v.

Dir., Office of Workers’ Comp. Programs, 932 F.2d 836 (9th Cir. 1991). The

claimant in Port of Portland introduced evidence that his occupational hearing loss

combined with his age-related hearing loss to produce an impairment. Id. at 838-

39. Schiessl, on the other hand, ceased encountering injurious levels of noise

before his hearing loss qualified as an impairment. This is significant because

“loss of hearing[] occurs simultaneously with the exposure to excessive noise[,

and] the injury is complete when the exposure ceases.” Bath Iron Works Corp. v.

Dir., Office of Workers’ Comp. Programs, 506 U.S. 153, 165 (1993). Thus,

occupational noise no longer factored into Schiessl’s hearing loss after December

1, 1999.

      PETITION DENIED.




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