     Case: 12-60927       Document: 00512253229         Page: 1     Date Filed: 05/24/2013




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

                                                                            FILED
                                                                           May 24, 2013

                                     No. 12-60927                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CERES GULF, INCORPORATED,

                                                  Petitioner
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; MARSHALL JACKSON,

                                                  Respondents



                         Petition For Review of an Order of
                            The Benefits Review Board
                                      (12-0124)


Before REAVLEY, JOLLY, DAVIS, Circuit Judges.
PER CURIAM:*
       This case is on review of a judgment of the United States Department of
Labor’s Benefits Review Board (the “BRB”), affirming a decision of an
administrative law judge (the “ALJ”). The ALJ held that Claimant Marshall
Jackson (“Jackson”) was at maximum medical improvement and entitled to
compensation for a permanent hearing loss. Specifically, Ceres Gulf, Inc. (“Ceres


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60927

Gulf”) contends that the ALJ erred because Jackson was not at maximum
medical improvement as surgery could substantially improve Jackson’s hearing,
that the ALJ erred in averaging the results of two of Jackson’s audiograms
(hearing tests), and that the ALJ failed to properly address all evidence
presented at trial. Finding no error, we affirm for the reasons more fully set
forth below.
                                       I.
      This appeal involves Jackson’s claim for hearing loss under the Longshore
Harbor Workers’ Compensation Act, 33 U.S.C. § 908(c)(13). Jackson, who worked
as a longshoreman for eighteen years, operated heavy equipment and was
exposed to loud machinery noises during his employ.
      The Department of Labor appointed Dr. Marks, an otolaryngologist, as an
independent medical examiner in this case. Dr. Marks tested Jackson’s hearing
loss twice. This testing showed moderate sensorineural bilateral hearing loss,
and some portion of this loss was attributed to a conductive impairment. The
first audiogram Dr. Marks conducted on November 20, 2009, showed Jackson
had 56% hearing impairment; Dr. Marks’s second audiogram of Jackson on May
25, 2010, showed 39.6% hearing impairment. Dr. Marks characterized the
results of the two tests as “virtually identical.” Dr. Marks testified that it would
require surgical exploration of the ear to determine if surgery would correct any
portion of Jackson’s impairment; thus, Dr. Marks found Jackson’s impairment
permanent and best treated with the use of hearing aids.




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                                       No. 12-60927

       Jackson also had his hearing tested by Daniel Bode, a licensed clinical
audiologist1; Dr. Seidemann, Ph.D.2; and Dr. Sanborn, Au.D.3
       After a hearing on February 4, 2011, the ALJ reviewed all audiograms and
testing performed by the four experts and chose to most credit Dr. Marks. In
crediting Dr. Marks, the ALJ found that Jackson suffered a permanent loss and
was at maximum medical improvement. The ALJ, finding both audiograms
conducted by Dr. Marks reliable, averaged the results of the two tests to
conclude that Jackson suffered a 47.8% binaural loss.

                                   II.
       We must affirm the decision of the Benefits Review Board if it has
correctly concluded that the decision of the ALJ is “supported by substantial
evidence on the record as a whole and is in accordance with the law.” Diamond
M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir. 1978). “Substantial
evidence” is evidence that provides a “substantial basis of fact from which the
fact in issue can be reasonably inferred.” Id. at 1006 (quoting NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 299 (1939)). Further, “the
[ALJ] alone is charged with the duty of selecting the inference which seems most
reasonable and his choice, if supported by the evidence, may not be disturbed.”
Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1011 (5th Cir. 1981) (quoting
Presley v. Tinsley Maint. Serv., 529 F.2d 433, 436 (5th Cir. 1976)).




       1
         Bode concluded that Jackson had a bilateral, work noise-induced senosrineural
hearing loss and found a 39.8% binaural impairment.
       2
         Dr. Seidemann twice performed audiological evaluations on Jackson and concluded
that he suffered from a mild, bilateral sensorineural hearing loss, first measured at 2.8% and
then at 4.7%.
       3
        Dr. Sanborn, a clinical audiologist, conducted an audiological brainstem response
evaluation, which she concluded supported the presence of moderate to significant
sensorineural hearing loss.

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                                  No. 12-60927

                                      III.
                                       A.
      Ceres Gulf first argues that Jackson is not entitled to benefits because he
has not reached maximum medical improvement (“MMI”).
      Awarding benefits under the Longshore Act for a scheduled injury first
requires finding that the claimant is at MMI. SGS Control Servs. v. DOWCP, 86
F.3d 438, 443 (5th Cir. 1996). A medical expert then prescribes an impairment
rating, and the court uses such ratings to determine the scope of compensation
for scheduled injuries. See 33 U.S.C. § 908(c)(13)(E).
      Ceres Gulf contends there is a factual dispute as to whether Jackson has
achieved MMI because Dr. Marks found a conductive component to Jackson’s
hearing loss. All the experts in this case agree that when a claimant suffers from
a conductive loss, the possibility exists that the loss can be corrected.
      The ALJ relied on Dr. Marks’s opinion in finding that while Jackson
suffered from a conductive loss, Jackson was at MMI and that no treatment
beyond amplification was appropriate. While Dr. Marks testified that the
conductive portion of Jackson’s loss could “theoretically” be improved through
medication or surgery, a doctor would have to first preform an exploratory
surgery to preliminarily evaluate if further surgical intervention could correct
Jackson’s conductive loss. In light of this, Dr. Marks ultimately opined that
hearing aids were the best form of treatment for Jackson’s condition. The other
experts agreed that surgery could potentially correct a portion of Jackson’s loss,
but those same experts admitted they would defer to the opinion of a medical
doctor to determine when such intervention is appropriate.
      When surgery is not anticipated, or if the prognosis after surgery is
uncertain, the claimant’s condition may be considered permanent. Bunge Corp.
v. Carlisle, 227 F.3d 934, 940 (7th Cir. 2000). Further, if recovery after surgery
is uncertain or unknown, a disability may still be found permanent. Exxon Corp.


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                                  No. 12-60927

v. White, 9 BRBS 138, 142 (1978), aff’d mem., 617 F.2d 292 (5th Cir. 1980). Thus,
even where experts disagree over the benefit of surgery or where an expert
acknowledges a surgery may be beneficial, a finding of MMI is not precluded.
      Here the ALJ credited Dr. Marks’s opinion and concluded that surgery was
not anticipated and that Jackson’s loss was permanent in nature. Finding that
this conclusion is supported by substantial evidence, we affirm the ALJ’s finding
that Jackson suffered a permanent loss.
                                       B.
      Ceres Gulf next alleges that the ALJ erred as a matter of law in averaging
the results of the two audiograms that Dr. Marks performed on Jackson.
      The ALJ reviewed five audiograms and the opinions of four experts and
found Dr. Marks’s opinion regarding Jackson’s loss most credible. In finding Dr.
Marks most credible, the ALJ averaged results derived from Dr. Marks’s two
audiograms—56% hearing impairment and 39.6% hearing impairment—to
determine the extent of Jackson’s hearing loss was 47.8%.
      Ceres Gulf contends that the results of Dr. Marks’s two tests were not
within the acceptable test/retest variance of each other. Yet the Guide for
Conservation of Hearing and Noise produced by the American Academy of
Otolaryngology provides that if two “audiograms agree within 10 [decibels] at
four or more of the audiometric frequencies (.5, 1, 2, 3, 4, 6, and 8 kHz), they may
be considered consistent.” As Dr. Marks’s two audiograms yielded results that
were within 5 decibels at a majority of the given frequencies and more than four
of these seven frequencies yielded results that were within the 10 decibel
threshold, the results met this standard of consistency.
      While admittedly the Guide for Conservation of Hearing and Noise
suggests that the audiogram that yields the smallest number should be accepted
as representing an individual’s hearing, the ALJ, finding both of Dr. Marks’s
audiograms reliable, instead chose to average the results.


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                                  No. 12-60927

      Ceres Gulf contends that the ALJ committed legal error in averaging the
results of Dr. Marks’s audiograms because under DOWCP v. Greenwich
Collieries, 512 U.S. 267 (1994), the claimant bears the burden of proving that he
is disabled and if the evidence is equal the claimant must lose. Further, Ceres
Gulf argues that Ceres Marine Terminals, Inc. v. Green, 656 F.3d 235 (4th Cir.
2011) stands for the proposition that audiogram results may not be averaged. In
Ceres Marine Terminals, the Fourth Circuit stated, “[W]hen there is
contradictory, equally probative evidence as to whether a disability exists at all,
an ALJ cannot average a ‘zero’ result with a higher result to find a disability
exists.” Id. at 241 n.2. We find Ceres Marine easily distinguishable from the case
at hand as it involved an ALJ averaging the results of two audiograms to find
that a disability existed when one audiogram yielded a zero result. In fact, the
Fourth Circuit explicitly stated: “[W]e do not take the position that an ALJ can
never average evidence presented by two medical professionals to make a
determination as to the extent of disability.” Id. Thus we are not convinced that
the ALJ erred in averaging the results of Dr. Marks’s audiograms.

                                      C.
      Finally, Ceres Gulf argues that the ALJ’s decision does not comport with
the Administrative Procedure Act because the ALJ did not discuss all the
evidence before him and failed to explain why he rejected evidence that was
contrary to his findings of fact. This argument is without merit. While the ALJ
is required to address each issue with substantial evidence, the ALJ is not
required to address each conflicting fact. See H.B. Zachary Co. v. Quinones, 206
F.3d 474, 480 (5th Cir. 2000). Contrary to Ceres Gulf’s assertion, the ALJ in a
thorough and lengthy opinion supported his findings with detailed evidence from
the record and addressed each expert’s findings in turn.

                                       IV.


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 Accordingly, the decision of the Benefits Review Board is AFFIRMED.




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