                                                                           FILED
                            **
                                 NOT FOR PUBLICATION                        OCT 20 2011

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




                             FOR THE NINTH CIRCUIT



JONES STEVEDORING COMPANY,                       No. 10-72736

              Petitioner,                        BRB No. 10-0273

  v.
                                                 MEMORANDUM *
AUGUST PAGLIA; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,

              Respondents.



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

                      Argued and Submitted October 14, 2011
                                Portland, Oregon

Before: EBEL, BERZON, and N.R. SMITH, Circuit Judges.




       August Paglia filed a claim under the Longshore & Harbor Workers’

Compensation Act (LHWCA), 33 U.S.C. § 900 et seq., for occupational hearing

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
loss related to his employment as a stevedore at Jones Stevedoring Company

(Jones). The ALJ ruled that Paglia established a prima facie claim for occupational

hearing loss and was thus entitled to a presumption in favor of compensability

pursuant to 33 U.S.C. § 920(a). Jones has not contested that determination. The

ALJ further concluded that Jones produced sufficient evidence to overcome the

presumption. The Benefits Review Board (the Board), however, reversed on that

point, holding that Jones did not rebut the § 20(a) presumption, and remanded for

resolution of remaining issues. We affirm.

      1. Jones contends that the Board exceeded its authority by reviewing the

evidence de novo. The inquiry into whether an employer has produced sufficient

evidence to rebut the § 20(a) presumption is, however, a legal judgment subject to

plenary review by the Board. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642,

651 (9th Cir. 2010) (citing Bath Iron Works Corp. v. Fields, 599 F.3d 47, 54-55

(1st Cir. 2010)). The Board therefore did not exceed its authority by reviewing the

ALJ’s decision de novo.

      2. Jones alternatively contends that the Board erred in holding that Jones did

not produce substantial evidence to rebut the § 20(a) presumption. To rebut that

presumption, an employer must produce substantial evidence that is specific and

comprehensive enough to sever the connection between an employee’s disability


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and the conditions of his employment. Id. Where the conditions of covered

employment aggravate or accelerate a claimant’s pre-existing condition, the

aggravation rule renders the last covered employer liable for the entire resulting

disability. See Port of Portland v. Dir., OWCP, 932 F.2d 836, 839-40 (9th Cir.

1991). Thus, to rebut the § 20(a) presumption, Jones had to produce specific and

comprehensive evidence tending to show that Paglia’s covered employment did not

cause or contribute to his hearing loss.

      The Board correctly determined that the circumstantial and negative

evidence produced by Jones, and relied upon by the ALJ, did not satisfy this

standard. First, Jones’s circumstantial evidence of alternative sources for Paglia’s

hearing loss does not respond to the § 20(a) presumption. The existence of

alternative sources of hearing loss is not inconsistent with the proposition that the

conditions of Paglia’s employment contributed to his hearing loss. See Cordero v.

Triple A Mach. Shop, 580 F.2d 1331, 1335 (9th Cir. 1978).

      Second, Jones’s negative evidence – the medical and audiological experts’

testimony that Paglia’s hearing loss might be attributable entirely to non-

employment-related sources – is too speculative to rebut the § 20(a) presumption.

See Bath Iron Works, 599 F.3d at 56-57 (citing Wheatley v. Adler, 407 F.2d 307,

313 (D.C. Cir. 1968) (en banc)).


                                           3
      Third, that Paglia and his wife did not notice any significant hearing

problems until several years after Paglia’s retirement is not, by itself, sufficient to

rebut the § 20(a) presumption. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075,

1084 & n.52 (D.C. Cir. 1976); cf. Pedroza v. BRB, 624 F.3d 926, 929 n.2 (9th Cir.

2010) (citing Swinton’s explication of the rebuttal standard).

      In the end, the circumstantial and negative evidence, taken as a whole,

cannot overcome the § 20(a) presumption. Jones did not produce any specific and

comprehensive evidence severing the link between Paglia’s hearing loss and the

conditions of his employment (e.g., that Paglia’s employment was not noisy).

Compare Haw. Stevedores, 608 F.3d at 650-51(holding that an employer produced

sufficient evidence to rebut a claimant’s prima facie claim where the employer

produced specific evidence that the claimant’s job was not stressful).

      Because Jones failed to produce specific and comprehensive evidence

severing the connection between Paglia’s covered employment and his hearing

loss, the Board properly held that Jones did not rebut the § 20(a) presumption.

      AFFIRMED.




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