                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            MAR 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


EAGLE MARINE SERVICES,                           No.   16-71165

              Petitioner,                        BRB No. 15-0365

 v.
                                                 MEMORANDUM*
RICHARD MCNISH; SSA MARINE
TERMINALS, LLC; HOMEPORT
INSURANCE CO.; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAM,

              Respondents.


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

                             Submitted March 6, 2018**
                                Seattle, Washington




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENCIVENGO,***
District Judge.

      Eagle Marine Services (Eagle Marine) petitions for review of the decision of

the Benefits Review Board (BRB) affirming its liability as the responsible

employer for Claimant Richard McNish’s (McNish) noise-induced hearing loss

under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-

950. “We review the [BRB’s] decisions for errors of law and adherence to the

substantial evidence standard.” Metro. Stevedore Co. v. Crescent Wharf &

Warehouse Co., 339 F.3d 1102, 1105 (9th Cir. 2003) (citation omitted). The BRB

must accept the findings of the administrative law judge (ALJ) “unless they are

contrary to law, irrational, or unsupported by substantial evidence.” Id. (citation

omitted).

      Substantial evidence supports the BRB’s determination that Eagle Marine

was the responsible employer. The ALJ engaged in a comprehensive review of the

audiometric evidence before concluding that the October audiogram was

determinative of McNish’s disability because it first measured the onset of

McNish’s disability. See Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165



      ***
             The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
                                          2
(9th Cir. 2010) (“The substantial evidence test for upholding factual findings is

extremely deferential to the factfinder. . . .”) (citation and internal quotation marks

omitted). Pursuant to the last employer rule, the ALJ properly assigned liability to

Eagle Marine, as it was the last employer who, by injurious exposure, could have

contributed causally to the claimant’s disability evidenced on the audiogram that

formed the basis of the hearing loss claim. See Port of Portland v. Dir., Office of

Workers Comp. Programs, 932 F.2d 836, 840 (9th Cir. 1991).

      PETITION DENIED.




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