                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-1542



UNIVERSAL MARITIME SERVICES;     SIGNAL    MUTUAL
INDEMNITY ASSOCIATION,

                                                          Petitioners,

          versus


WILLIE L. PERRY; CERES MARINE TERMINALS;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                                                          Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(03-468-A)


Argued:   February 2, 2005                   Decided:   March 18, 2005


Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


Richard John Barrett, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia,
for Petitioners.       Lawrence Philip Postol, SEYFARTH SHAW,
Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Universal Maritime Services (“Universal”) appeals the

decision of the Benefits Review Board of the Department of Labor

(“BRB”) awarding Willie Perry compensation for his hearing loss

under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),

33 U.S.C. §§ 901-950.         Perry v. Universal Maritime Servs., No. 03-

0468 (BRB Apr. 6, 2004) (unpublished) (the “BRB Opinion”). The BRB

Opinion   affirmed      the     earlier         Decision     and    Order       of   the

Administrative    Law   Judge        (“ALJ”),     see   Perry      v.   Ceres    Marine

Terminals, No. 2001-LHC-1909 (Dep’t Labor Mar. 17, 2003) (the “ALJ

Decision and Order”), concluding that Perry’s third audiogram was

determinative and that Universal was the employer responsible for

Perry’s hearing loss benefits.                  As explained below, the ALJ’s

finding that Perry’s third audiogram was determinative is supported

by substantial evidence, and we thus affirm the decision of the

BRB.

                                           I.

          Perry      has      been     a       member   of    the       International

Longshoreman’s Association since 1966.                  From approximately 1985

through October 30, 2000, Perry worked primarily for a work gang

assigned to Ceres Marine Terminals (“Ceres”).                 However, when Ceres

did not have available work, he worked temporarily for other




                                           2
employers.     On October 30, 2000, Universal became Perry’s primary

employer.1

             On October 26, 2000, while still employed by Ceres, Perry

underwent a baseline audiogram conducted by Taylor Made Diagnostics

(the “Taylor Made audiogram”).     Universal arranged for the Taylor

Made audiogram specifically to determine the degree of Perry’s pre-

employment hearing loss.      This audiogram was conducted prior to

Perry’s workday in a mobile van equipped with four audiometric

testing stations and a soundproof steel door.      Perry had finished

his workday four to five and one-half hours prior to the test, and

he testified that he had been exposed to loud noise while working.

The test administrator (who was neither an audiologist nor an

otolaryngologist) did not conduct other reliability tests for

hearing loss, such as bone-conduction or speech reception.        The

Taylor Made audiogram indicated that Perry was suffering an 8%

binaural hearing loss.

             On December 26, 2000, while employed by Universal, Perry

underwent audiometric testing conducted by Dr. John Jacobson (the

“Jacobson audiogram”). This audiogram was conducted at the Eastern


     1
      As a longshoreman, Perry has been employed as both a hustler
(a truck driver) and a slinger (a spotter for boxes lifted by a
crane onto and off of ships). As a slinger, he stands underneath
cranes where he is exposed to the noise of their diesel engine
motors and, as a hustler, he is exposed to similar types of noise.
Perry performed the duties of both slinger and hustler while
employed by Universal and Ceres. However, he worked primarily as
a hustler at Universal, inside a cab, whereas he worked primarily
as a slinger at Ceres, outside in the elements.

                                   3
Virginia Medical School Hearing and Balance Center in Norfolk,

Virginia, and Perry had not worked during the five days preceding

the test.      Dr. Jacobson, the test administrator, is a board

certified audiologist, and he conducted both bone-conduction and

speech reception tests on Perry.          The Jacobson audiogram revealed

a 6.3% binaural hearing impairment.2

             Perry filed separate hearing loss claims with the local

Office of Workers’ Compensation Programs against both Universal and

Ceres (which were referred to the Office of Administrative Law

Judges), and subsequently the two claims were consolidated by the

ALJ’s Order of August 22, 2001.           Prior to the hearing before the

ALJ, the parties stipulated that Perry suffered from hearing loss

which had been caused, at least partially, by occupational noise

exposure.      As Perry was thereby entitled to benefits under §

8(c)(13) of the LHWCA, the only issue to be decided by the ALJ was

which employer — Universal or Ceres — was responsible for Perry’s

benefits as a longshoreman.      The ALJ issued his Decision and Order

on   March    17,   2003,   finding   the     Jacobson   audiogram   to   be

determinative.      See ALJ Decision and Order at 17.         Accordingly,

the ALJ concluded that Universal, as the last maritime employer at

     2
      The record also reveals that a third audiogram was conducted
on Perry by a concern called Miracle-Ear on December 27, 1999,
prior to the Taylor Made and Jacobson audiograms. The ALJ advised
the parties that he would accord no weight to the Miracle-Ear test
because internal inconsistencies rendered it invalid. ALJ Decision
and Order at 6 n.7.      Universal makes no contention that the
Miracle-Ear audiogram is determinative or relevant.

                                      4
the time of Perry’s most recent exposure to occupational noise, was

responsible for Perry’s permanent partial disability benefits. Id.

             Universal appealed th ALJ Decision and Order to the BRB,

contending that the ALJ had erred in failing to credit the Taylor

Made audiogram and in determining that Universal was the employer

responsible       for   Perry’s    benefits.      The    BRB    affirmed      the   ALJ

Decision and Order on April 6, 2004, see BRB Opinion at 7, and this

appeal followed.        We possess jurisdiction pursuant to 33 U.S.C. §

921(c).


                                        II.

             We    review   BRB    decisions    for    errors    of    law    and   for

adherence to the statutory standard governing an ALJ’s factual

findings.     Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d

378, 380 (4th Cir. 2000).           Section 921(b)(3) of the LHWCA directs

that “the findings of fact in the decision under review by the

Board shall be conclusive if supported by substantial evidence in

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

the Board, we will uphold the factual findings of an ALJ so long as

they   are   supported      by    substantial    evidence,      and    we    will   not

disregard     those     findings     merely     “‘on    the    basis    that    other

inferences might have been more reasonable.’”                  Faulk, 228 F.3d at

380 (quoting Director, OWCP v. Newport News Shipbldg. & Dry Dock

Co., 138 F.3d 134, 140 (4th Cir. 1998)).                 Our review of factual

findings made by an ALJ is limited, however, and “deference must be

                                         5
given the fact-finder’s inferences and credibility assessments.”

Id. (internal citations and quotation marks omitted).


                                          III.

               Whether Ceres or Universal is the responsible employer

for Perry’s benefits turns on the factual determination of when

Perry had an audiogram that was determinative of his disability

under Section § 908(c)(13) of the LHWCA.                  33 U.S.C. § 908(c)(13)

(providing that loss of hearing is compensable, audiogram is

presumptive evidence of amount of hearing loss, and statute of

limitations begins to run when employee receives audiogram); see

also Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 961 (9th

Cir. 1998) (determining which audiogram most reliable and awarding

benefits based on date of employee’s last exposure to noise prior

to determinative audiogram).              Universal does not contend in this

appeal that the Jacobson audiogram is inaccurate; it instead

maintains that the Taylor audiogram is adequate and determinative,

under    the    LHWCA      and   its   implementing     regulations,    to   assign

liability for Perry’s benefits to Ceres.                  Yet, experts testified

before   the        ALJ   that   the   Taylor    and   Jacobson    audiograms   were

contradictory, and that both could not be accurate.                   ALJ Decision

and Order at 14.

               In    resolving     this   dispute,     the   ALJ   engaged   in    an

exhaustive      review      of   the    audiometric     evidence,    weighing     and

commenting on it, and then finding the Jacobson audiogram to be the

                                           6
determinative one.   See ALJ Decision and Order at 6-17.   Because

the facts relied upon by the ALJ are amply supported by the record,

and the inferences drawn by him are reasonable, we are constrained

to defer to the ALJ’s assessment of the hearing tests.           That

reasoning was aptly spelled out in the BRB Opinion, which related

the following:

     Ultimately, having taken into account the following
     factors: 1) claimant had not been exposed to noise for
     five days before the test, thus eliminating concerns of
     a temporary threshold shift; 2) tests which confirmed the
     accuracy    of   the    audiogram,    including    speech
     discrimination, speech reception and bone conduction,
     were performed; 3) the experts agreed that Dr. Jacobson’s
     audiogram was the most accurate; and 4) Dr. Jacobson’s
     audiogram meets the requirements of a presumptive
     audiogram under the [LHWCA],3 the [ALJ] concluded that
     Dr. Jacobson’s audiogram is the most credible and
     reliable. [ALJ] Decision and Order at 17. In finding
     the Taylor Made audiogram to be less reliable, the [ALJ]
     considered that this test was not interpreted and
     certified by a licensed or certified audiologist or
     otolaryngologist; that claimant had worked, and had been
     exposed to loud noise, four to five and one-half hours
     prior to testing,4 that additional testing to confirm the
     audiogram was not performed, and that the experts agreed


     3
      An audiogram provides presumptive evidence of the extent of
a claimant’s hearing loss if certain conditions are met.       BRB
Opinion at 4-5 n.3 (citing 33 U.S.C. §908(c)(13); 20 C.F.R.
§702.441(b); Steevens v. Umpqua River Navigation, 35 BRBS 129, 133
n.6 (2001)). In this proceeding, the parties have stipulated that
the Jacobson audiogram meets the requirements of a presumptive
audiogram. See id. (citing ALJ Decision and Order at 3).
     4
      The ALJ observed that an employee being tested should be away
from noise for a period longer than four to five and one-half hours
prior to an audiogram being conducted.       BRB Opinion at 5 n.4
(citing ALJ Decision and Order at 15-16). Specifically, the ALJ
relied on the expert opinions of Drs. Jacobson, Hecker, and Lee in
concluding that a tested employee should not be exposed to noise
for a period of at least 24 hours prior to his audiogram. Id.

                                   7
     that the Taylor and Jacobson audiograms, although
     similar, are not within the values for test/retest
     reliability. See [ALJ] Decision and Order at 11-17.

BRB Opinion at 5-6.     According proper deference to the ALJ’s

factual finding — that the Jacobson audiogram was determinative —

we readily conclude there is substantial evidence to support it.

We therefore sustain the BRB Opinion affirming the ALJ Decision and

Order of the ALJ, and we are content to affirm on its reasoning.

Perry v. Universal Maritime Servs., No. 03-0468 (BRB Apr. 6, 2004)

(unpublished); Perry v. Ceres Marine Terminals, No. 2001-LHC-1909

(Dep’t Labor Mar. 17, 2003).


                               IV.

          Pursuant to the foregoing, we affirm the decision set

forth in the BRB Opinion.

                                                          AFFIRMED




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