     Case: 11-60456   Document: 00511876072     Page: 1    Date Filed: 06/04/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                    June 4, 2012

                                   No. 11-60456                    Lyle W. Cayce
                                                                        Clerk

CERES GULF, INCORPORATED

                                             Petitioner

v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR;
NORRIS PLAISANCE, SR.,

                                             Respondents


                      Petition for Review of an Order of the
                              Benefits Review Board



Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
        Ceres Gulf, former employer of retired longshoreman Norris Plaisance, Jr.,
challenges a Benefits Review Board (“BRB”) decision that overruled an
Administrative Law Judge (“ALJ”) twice and held Ceres Gulf liable for
Plaisance’s hearing loss. Because the BRB initially applied the wrong legal test
and standard of review to the ALJ’s decision, we REVERSE.
                                 I. Background
        Plaisance (“Claimant”) worked as a longshoreman for various employers
beginning in the 1950s and for Ceres Gulf (“Petitioner”) from 1982 until he
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                                        No. 11-60456

retired in 1988. He noticed an initial hearing loss in 1976, for which he obtained
hearing aids.       After retiring, he was diagnosed with both conductive and
sensorineural hearing loss.1 In March 2006 he filed a claim against Ceres Gulf,
his last maritime employer, pursuant to the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §901 et seq. (“LHWCA”).
       In his initial decision and order, the ALJ found in favor of the employer.
He concluded that the Claimant provided evidence sufficient to invoke the
presumption of causation under Section 20(a) of the LHWCA, 33 U.S.C. §920(a)
(“In any proceeding for the enforcement of a claim for compensation under this
chapter it shall be presumed, in the absence of substantial evidence to the
contrary . . . [t]hat the claim comes within the provisions of this chapter.”) (the
“Section 20(a) presumption”). Nevertheless, he held that the employer rebutted
the presumption by substantial evidence, and he found based on the record as
a whole that the employer’s workplace was not the cause of Claimant’s injury.
       On appeal, the Benefits Review Board (“BRB”) vacated and remanded for
further consideration. It held that some of the evidence relied on by the ALJ to
satisfy the “substantial evidence” standard could not, as a matter of law,
contribute to rebutting the presumption. It first excluded the expert opinion of
Dr. Irwin, who stated that the relationship between the sensorineural hearing
loss and Claimant’s noise exposure was possible but not definite because of
potential exogenous causes. The BRB concluded that these statements could
not establish rebuttal in light of the aggravation rule, which holds that even if
employment combined with other preexisting causes of the loss, the entire

       1
         “Conductive hearing loss” describes a problem conducting sound waves through the
ear system. See American Speech-Language-Hearing Association, “Conductive Hearing Loss,”
available at http://www.asha.org/public/hearing/conductive-Hearing-Loss/. “Sensorineural
hearing loss” describes inability of the nerve of the inner ear or of the processing centers of the
brain to process the sound waves transmitted through the ear system. See American Speech-
Language-Hearing Association, “Sensorineural Hearing Loss,” available at
http://www.asha.org/public/hearing/Sensorineural-Hearing-Loss/.

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disability is compensable. See, e.g., Strachan Shipping v. Nash, 782 F.2d 513,
517 (5th Cir. 1986) (en banc) (“[W]here an employment injury worsens or
combines with a preexisting impairment to produce a disability greater than
that which would have resulted from the employment injury alone, the entire
resulting disability is compensable.”) (citations omitted).
       Second, the BRB excluded two of the bases for the opinion of the
employer’s expert, Dr. Seidemann:             the use of sound level surveys and
generalized population information regarding hearing loss. Dr. Seidemann
opined that the plaintiff exhibited a mixed-use hearing loss, comprising both a
mild sensorineural hearing loss and a more severe bilateral conductive hearing
loss, the latter of which could not possibly have been caused by noise exposure.2
He also concluded that while sensorineural hearing loss can be caused by noise
exposure, this Claimant’s sensorineural hearing loss was not actually caused by
noise exposure, because Claimant’s hearing was better than average for someone
his age and because the doctor’s noise studies performed in various longshore
environments did not reveal noise levels high enough to cause hearing loss.
       The first basis, the BRB wrote, could not constitute evidence against the
presumption because the hearing capacity of the average person of Claimant’s
age was logically unrelated to whether Claimant’s present hearing loss was
caused, aggravated, or contributed to by his employment. An employer takes his
employee as he finds him, even if that employee enjoys unusual hardiness or
frailty. See Gooden v. Dir., Office of Worker’s Comp., 135 F.3d 1066, 1069 (5th
Cir. 1998), quoting Southern Stevedoring Co. v. Henderson, 175 F.2d 863, 866
(5th Cir. 1949) (“There is no standard or normal man who alone is entitled to
workmen’s compensation.”).


       2
       The undisputed evidence is that a significant portion of Plaisance’s hearing loss was
caused by otosclerosis, a bony growth in his ear that could not have arisen from his
employment.

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      The BRB also rejected the second basis for Dr. Seidemann’s opinion—his
noise studies in different longshore environments—as rebuttal of the
Section 20(a) presumption. The ALJ had found that there was evidence sufficient
to invoke the Section 20(a) presumption that noise levels in Claimant’s work
environment caused hearing loss. That finding was not challenged on appeal.
According to the BRB, paraphrasing New Orleans Stevedores v. Ibos, 317 F.3d
480, 485 (5th Cir. 2003), it therefore fell to the employer to “demonstrate . . . that
exposure to injurious stimuli did not cause the employee’s occupational
disease . . . .” Evidence from other longshore facilities was held irrelevant to
rebut the Claimant’s testimony concerning his exposure. The BRB remanded for
consideration whether the employer had rebutted the presumption by
substantial evidence, absent these three impermissible bits of evidence.
      On remand, the ALJ concluded that without this evidence the employer
had failed to rebut the presumption of compensability. The sole remaining
ground for Dr. Seidemann’s conclusion was that Claimant’s non-work-related
otosclerosis functioned as a built-in earplug that may have served as a hearing
protector, reducing the impact of workplace noise-exposure.            In the ALJ’s
judgment, this was not alone substantial evidence against the presumption. The
ALJ therefore held that Claimant suffered work-related hearing loss during
employment with Petitioner. He found only an 8.4% binaural hearing loss
compensable. Because Claimant had not shown that his non-work-related
hearing loss predated his work with the Employer, that condition could not have
been “aggravated” during employment.
      In its second opinion, the BRB affirmed the ALJ’s revised finding of
compensable injury. However, it held that the ALJ erred in holding that
Claimant must prove that his conductive hearing loss pre-existed his work-
related hearing loss. The BRB placed the burden on the employer to provide
substantial evidence that it did not. It held that in view of the Section 20(a)

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                                 No. 11-60456

presumption, the entire hearing impairment was work-related, and the employer
failed to produce substantial evidence that some portion of the disability was due
to an intervening cause post-dating the work injury. Ceres Gulf was accordingly
held liable for the Claimant’s total 80.8% hearing loss.
      On appeal, Ceres Gulf challenges the BRB’s exclusion in its first decision
of the two bases for Dr. Seidemann’s opinion and the BRB’s conclusion in its
second decision that the amount of compensable hearing loss was 80.8%.
                                 II. Discussion
      The critical initial issue on appeal is whether the BRB properly required
the ALJ to disregard a substantial portion of the reasoning used by
Dr. Seidemann to support his opinion that Plaisance’s hearing loss was not
caused by his longshore work at Ceres Gulf. To evaluate this holding, we restate
the fundamentals governing both this court’s and the BRB's review of ALJ
compensation decisions.
      “This court . . . reviews decisions by the BRB to determine whether it has
adhered to its proper scope of review—i.e., whether the ALJ’s findings of fact are
supported by substantial evidence and are consistent with the law.” Gulf Best
Elec., Inc. v. Methe, 396 F.3d 601, 603 (5th Cir. 2004). The BRB, in turn, is
bound by the LHWCA to uphold the factual findings of the ALJ if they are
supported by substantial evidence. 33 U.S.C. § 921(b)(3). Substantial evidence
is “that relevant evidence—more than a scintilla but less than a
preponderance—that would cause a reasonable person to accept the fact
finding.” Coastal Prod. Svc., Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir. 2009).
The ALJ is thus the factfinder who is exclusively entitled to assess both the
weight of the evidence and the credibility of witnesses. Mendoza v. Marine Pers.
Co., 46 F.3d 498, 500 (5th Cir. 1995); La. Ins. Gty. Assn. v. Director,
614 F.3d 179, 185 (5th Cir. 2010); Avondale Indust. v. Dir., Office of Worker’s
Comp., 977 F.2d 186, 189 (5th Cir. 1992).

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      The LHWCA further specifies the order of proof in compensation cases,
providing that “[in] any proceeding for the enforcement of a claim for
compensation under this chapter it shall be presumed, in the absence of
substantial evidence to the contrary . . .[t]hat the claim comes within the
provisions of this chapter.” 33 U.S.C. § 920(a). To invoke the presumption, a
Claimant must offer a prima facie case that he (1) suffered a harm, and (2) a
workplace condition may have been responsible for or aggravated the harm.
Conoco, Inc., v. Dir., Office of Worker’s Comp., 194 F.3d 684, 687 (5th Cir. 1999).
When the presumption is invoked, as it may be solely by a Claimant’s testimony,
“the burden shifts to the employer to rebut it through facts—not mere
speculation—that the harm was not work-related.” Id. (omitting citation). If
the presumption is rebutted by the employer, the ALJ is then obliged to weigh
all of the evidence of record to determine whether the injury arose out of the
Claimant’s employment.       Del Vecchio v. Bowers, 296 U.S. 280, 286-87,
56 S. Ct. 190, 193 (1935). The employee retains the burden of persuasion.
      The ALJ’s 24-page, single space opinion faithfully followed these rules. It
relied on the Claimant’s testimony and two expert opinions to find that
Plaisance suffered a hearing loss and his workplace could have manifested
injurious noise exposure. On this basis, the Section 20(a) presumption was
invoked.   The ALJ then found that the testimony of Dr. Seidemann was
sufficient to rebut the presumption of causation “and return to the Claimant the
burden of proof on that question.” Reviewing the record as a whole, the ALJ
credited Dr. Seidemann’s background, credentials and opinion over those of
Plaisance’s retained expert Dr. Bode. The ALJ also evaluated the testimony of
the “neutral” expert Dr. Irwin, who was found to be most credible but who
equivocated on whether Claimant’s “work for Employer [was] or [was not] a
cause or contributing factor in his sensorineural hearing loss.” Thus, the ALJ
concluded, Plaisance had not met his burden on the record as a whole.

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       The BRB did not state that the ALJ applied an incorrect standard to the
proof before him; the Board purported to rely on the above standards nearly
verbatim.      However, it placed on Ceres Gulf the burden to rebut the
Section 20(a) presumption with evidence sufficient “to demonstrate the absence
of a work-related injury incurred over the course of the employee’s employment”
(emphasis added). In a footnote, the Board held that once the presumption is
invoked, the burden shifts to an employer to “demonstrate” “that exposure to
injurious stimuli did not cause the employee’s occupational disease . . .” (citing
Ibos, 317 F.3d at 485). The BRB then held inadmissible Dr. Seidemann’s
reliance on noise studies conducted in comparable workplace environments and
his comparison of Plaisance’s hearing with that of his peer age group. Such
evidence, it held, “cannot form a proper foundation for his opinion that
claimant’s current hearing loss is unrelated to his exposure to noise while
working for [the] employer[.]”
       We interpret the BRB opinion as falling short legally in several respects.
First, the Board impermissibly placed a thumb on the evidentiary scale by
arbitrarily declaring portions of Dr. Seidemann’s testimony inadmissible. Under
the statute, the ALJ, not the BRB, was entitled to assess the relevance and
credibility of testimony, including expert testimony. “[T]he ALJ’s decision need
not constitute the sole inference that can be drawn from the facts. . . . As fact
finder, the ALJ determines questions of credibility of witnesses and of conflicting
evidence.” Avondale, supra, 977 F.2d at 189. Dr. Seidemann’s credentials and
experience in audiology were unimpeachable.3                      That he considered it
scientifically reasonable to compare the noise levels Plaisance likely experienced


       3
          Dr. Seidmann is among only 10% of audiologists with a doctorate degree. Among
other things, he has been in the profession over thirty years, has taught at Louisiana State
University (“LSU”), Tulane School of Medicine and LSU Medical Center, achieving the rank
of full professor, and has been an editorial consultant for five professional journals including
the Journal of Occupational Hearing Loss.

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with studies at other comparable longshore facilities was certainly relevant,
whether or not alone determinative, of the issue of workplace causation.
      The BRB relied on its own previous decision in Everson v. Stevedoring
Services of America, 33 BRBS 149 (Ben. Rev. Bd. 1999), which upheld an ALJ’s
finding that noise surveys were insufficiently substantial evidence to rebut the
Section 20(a) presumption. In that case, however, the administrative decisions
were based not on the legal irrelevance of the noise level surveys, but on the
sufficiency of noise level surveys that were produced under materially different
working conditions. Appellee points to Damiano v. Global Terminal & Container
Serv., 32 BRBS 261 (Ben. Rev. Bd. 1998), where the BRB upheld an ALJ’s
rejection of noise-level surveys as insufficient evidence to rebut the presumption.
Here, too, the ALJ had found the noise-level surveys relevant rebuttal evidence,
even though he found them insufficient to rebut the presumption in light of the
fact that the noise-level surveys at issue there tended to demonstrate compliance
with OSHA standards of 90 air-weighted decibels, but the ALJ concluded the
injury could have occurred at lower decibel levels. Id.
      That the BRB has itself considered noise level surveys in the past
demonstrates their relevance. Their use by Dr. Seidemann goes to the weight,
not the admissibility, of the surveys, and the weighing was exclusively under the
ALJ’s control.
      The BRB also erroneously excluded a comparison between the degree of
hearing loss exhibited by Plaisance and the hearing loss of his peers as
irrelevant to determining causation. Dr. Seidemann testified that “[i]f we were
to look at the normal aging process, we would expect an 80-year-old to have
hearing worse than [Claimant’s], just on the basis of normal aging alone.”
Simply the observation that Claimant’s hearing is better than the average
person of his age might not be relevant, because a Claimant is taken as he is
found, and there is no evidence regarding whether, if he began with better-than

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average hearing, any loss from injury would still be compensable. See Gooden,
135 F.3d at 1069 (Employer takes employee as he finds him.).
      If Dr. Seidemann’s statement was offered as evidence that an injured
Claimant had nothing to complain about, since despite injury, his hearing was
still better than expected for a person of his age, it would be inapposite. But the
statement, taken in context, was actually intended as an alternative explanation
of causation: Claimant’s hearing loss may have been caused by the normal
process of aging. For this, the loss of hearing that would typically be expected of
someone of Claimant’s age (80 years old) is relevant.           Indeed, the ALJ
specifically mentioned that Dr. Irwin cited aging as a possible cause of
sensorineural hearing loss, and combined this with Dr. Seidemann’s observation
regarding Claimant to conclude that the employer had provided “substantial
evidence” to rebut the presumption of causation. Here, again, BRB had no basis
to exclude the testimony, as such decision lay within the ALJ’s province as
factfinder.
      The Board was required to consider all of this evidence for an additional
reason.   The Board evidently raised the employer’s burden of rebutting the
Section 20(a) presumption from that of simply adducing “substantial evidence”
to the more onerous task of disproving the Claimant’s prima facie case. Thus,
the Board states that the employer must “demonstrate” the absence of causation
or a work-related injury. Plaisance’s brief is even more emphatic that the
presumption must be rebutted with specific and comprehensive medical evidence
“proving the absence” or “severing the connection” between the harm and the
employment. This court has explicitly held, however, that the BRB may not
adopt standards requiring employers’ rebuttal evidence to “rule out,”
“unequivocally state,” or “affirmatively state” their positions to the exclusion of
the plaintiff’s case. See Conoco, supra 194 F.3d at 690. In Ortco Contractors,
Inc., v Charpentier, 332 F.3d 283, 287 (5th Cir. 2003), the court stated the

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reason for this holding: “We have repeatedly held that this evidentiary standard
[substantial evidence] is less demanding than the ordinary civil requirement
that a party prove a fact by a preponderance of evidence.”4 And in Conoco, on
which Ortco heavily relied, the court stated, “To place a higher standard [than
substantial evidence] on the employer is contrary to statute and case law.”
Conoco, 194 F.3d at 690. The Board’s “demonstrate” requirement heightens the
substantial evidence standard by making the employer prove the deficiency in
the Claimant’s prima facie case, when all it must do is advance evidence to
throw factual doubt on the prima facie case. Having produced substantial
evidence, the employer then casts the duty on the ALJ to weigh all the record
evidence. As Ortco also noted, the “only effect of a presumption is to shift [the]
burden of producing evidence to challenge the presumed fact.” Ortco, 194 F.3d
at 691 (citing Pennzoil Co. v. FERC, 789 F.2d 1128 (5th Cir. 1986)). Put
otherwise, this court has articulated the working of the Section 20(a)
presumption as follows:
      To rebut this presumption of causation, the employer was required
      to present substantial evidence that the injury was not caused by
      the employment. When an employer offers sufficient evidence to
      rebut the presumption–the kind of evidence a reasonable mind
      might accept as adequate to support a conclusion–only then is the
      presumption overcome; once the presumption is rebutted it no
      longer affects the outcome of the case.

Noble Drilling v. Drake, 795 F.2d 478, 481 (5th Cir. 1986) (emphasis added)
(internal citations omitted).
      To the extent the Board implicitly or explicitly relied on this court’s
characterization, in Ibos, 317 F.3d at 485, of the employer’s burden to rebut the
presumption of compensability with “proof” that “exposure to injurious stimuli
did not cause the employee’s occupational disease,” it erred. First, Ibos is an


      4
          E.g., Avondale Shipyards, 914 F.2d 88, 91 (5th Cir. 1990).

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asbestos case in which the job-related nature of the disease was not contested.
The court’s statement was dicta as to the causation inquiry. Second, the major
issue in Ibos was the last-employer rule, which is not disputed here. Third,
although the last employer rule is common to occupational disease and hearing
loss claims under the LHWCA, there is no reason why the substantial evidence
required for an employer’s rebuttal of the Section 20(a) presumption should
differ in hearing loss cases from the injuries at issue in Ortco (heart attack) or
Conoco (shoulder injuries), as questions of multiple causation can arise in such
instances. See Avondale Indust., supra 977 F.2d 186, 190 (hearing loss case
where last employer rule, but not employment-related causation, was disputed).
Occupational diseases, on the other hand, are governed by a separate prong of
the LHWCA’s definition of “injury” that does not include hearing loss; they are
notable for their much closer and sometimes unique connection with the
workplace. That the employer might have to adduce more evidence to rebut a
plaintiff’s prima facie case of occupational disease would not be surprising
(although it facially appears incongruous with the statute). See 33 U.S.C.
§ 902(2).
      Disregarding the BRB’s errors, we finally evaluate whether substantial
evidence supported the ALJ’s initial decision denying compensation on the
record as a whole. Although another factfinder might have reached a different
conclusion, the ALJ thoroughly explained his reasons in this disputed case.
Even the Claimant declines to place much weight on his own medical expert,
whose testimony was impeached. The neutral expert Dr. Irwin’s testimony was
too neutral to support compensability. Dr. Seidemann’s testimony, in contrast,
thoroughly grounded in the facts of the case, was comprehensive, direct and
unequivocal that work-related noise did not cause the Claimant’s sensorineural
hearing loss. He relied in part on representative longshore noise studies he had
conducted and on studies performed for OSHA. He also relied on the earplug

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effect created by Plaisance’s otosclerosis, which lessened his sensorineural
deterioration. He supported his conclusion that Plaisance’s relevant hearing
tests showed his sensorineural hearing is better than 80-year-old peers who were
not exposed to occupational or recreational noise.       Further, the fact that
Claimant’s hearing continued to decline after he stopped working implied a non-
work-related cause of his problem. The ALJ’s determination that Claimant
failed to prove causation by a preponderance of the evidence is supported by
substantial evidence.
                               III. Conclusion
      For all these reasons, the Board erred in rejecting Dr. Seidemann’s
evidence in part and in then rejecting the ALJ's first conclusion based on his
evaluation of the evidence. We need not reach the aggravation rule issue raised
by Ceres Gulf. The Board erred in excluding Dr. Seidemann’s noise-level
surveys, because those surveys are relevant to the question whether potentially
harmful working conditions existed that could have caused Claimant’s harm.
It erred when it excluded Dr. Seidemann’s comparison of Claimant’s hearing to
the typical person of his age, because this was offered as part of Dr. Seidemann’s
explanation that aging was a more likely cause of Claimant’s particular type of
hearing loss, which is clearly relevant to determine what caused Claimant’s
hearing loss. The ALJ properly considered both of these evidentiary bases as
rebuttal to the Section 20(a) presumption. The decision of the Benefits Review
Board is REVERSED, and the first decision of the Administrative Law Judge
is reinstated.




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