                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 29 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WILLIAM A. HART, Jr.,                            No. 08-74063

             Petitioner,                         No. 07-1004

  v.
                                                 MEMORANDUM *
MATSON TERMINALS, INC.; et al.,

             Respondents.



                     On Petition for Review of an Order of the
                               Department of Labor

                     Argued and Submitted December 11, 2009
                             San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       William Hart appeals a decision of the Benefits Review Board (“BRB”)

affirming the order of an Administrative Law Judge (“ALJ”) awarding benefits for

occupational hearing loss under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 901, et seq. (“LHWCA” or “Act”). Because the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BRB committed no error of law and adhered to the substantial evidence standard,

we affirm.

      In claims brought before the BRB under the LHWCA, factual

determinations by an ALJ are “conclusive if supported by substantial evidence in

the record considered as a whole.” 33 U.S.C. § 921(b)(3). This court reviews

decisions of the BRB under a similar standard; “[the court] review[s] BRB

decisions ‘for errors of law and for adherence to the substantial evidence

standard.’” Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th Cir. 2005) (quoting

Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir. 1998)). Further, “this court

cannot substitute its views for the ALJ’s views.” Id. (quoting Container

Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir. 1991) (internal

quotation marks omitted)). Substantial evidence to support a decision means “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)).

      The BRB found the record contained substantial evidence supporting the

ALJ’s ultimate conclusion that the 1996 audiogram was the best measure of Hart’s

work-related hearing loss. The ALJ considered the results of twelve audiograms,

performed from 1978 to 1996 while Hart was employed by Matson, as well as two


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audiograms performed after Hart’s retirement. The ALJ determined that the results

of these audiograms indicated that Hart’s hearing had indeed diminished while

employed by Matson, but that the damage had not significantly increased

subsequent to the termination of Hart’s employment. In addition to the audiogram

evidence, the ALJ also credited Dr. Schindler’s testimony that hearing loss

becomes more subtle after extended exposure to noise and that, once Hart was

removed from the noisy environment, further hearing loss was not due to earlier

exposure. The ALJ specifically noted that these conclusions were consistent with

Dr. Schindler’s medical testimony regarding how hearing is damaged.

      Hart argues that Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153

(1993), requires employers to conduct an audiogram at retirement in order to

protect themselves from liability for further hearing loss after retirement. Hart

failed to make this argument before the ALJ and the BRB. However, we address it

because it is purely an issue of law. See AlohaCare v. Hawaii, Dept. of Human

Servs., 572 F.3d 740, 744–45 (9th Cir. 2009). Hart is mistaken regarding the

impact of Bath Iron Works.

      The LHWCA defines when an audiogram is “presumptive” evidence and

otherwise allows the ALJ to determine which evidence is the most probative. See

20 C.F.R. § 702.441(b). Bath Iron Works does not create a contrary rule.


                                          3
      Bath Iron Works concerned which provision of the Act governed the

calculation of benefits for hearing loss. 506 U.S. at 154–55. Bath Iron Works

specifically noted that a determination of the amount of hearing damaged caused

was not an issue in that case. Id. at 165. Therefore, the language regarding

“freezing” hearing loss is not a change to an employer’s duties under the law.

      Bath Iron Works does not state that an employer must perform an audiogram

at retirement or that, if the employer does not, it will automatically be responsible

for all hearing loss. Instead, Bath Iron Works points out that an employer may

protect itself from liability for post-retirement hearing loss by performing an

audiogram at retirement. While there is no affirmative duty imposed by Bath Iron

Works, employers (who fail to follow the advice of Bath Iron Works) may often be

found liable for post-retirement hearing loss.

      AFFIRMED.




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