WILLIAM A. HART, Jr. v. Matson Terminals, Inc.;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM A. HART, Jr.,
Petitioner,
v.
MATSON TERMINALS, INC.; et al.,
Respondents.
No. 08-74063
No. 07-1004
MEMORANDUM *
On Petition for Review of an Order of the
Department of Labor
Argued and Submitted December 11, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
William Hart appeals a decision of the Benefits Review Board (“BRB”)
affirming the order of an Administrative Law Judge (“ALJ”) awarding benefits for
occupational hearing loss under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 901, et seq. (“LHWCA” or “Act”). Because the
FILED
DEC 29 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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BRB committed no error of law and adhered to the substantial evidence standard,
we affirm.
In claims brought before the BRB under the LHWCA, factual
determinations by an ALJ are “conclusive if supported by substantial evidence in
the record considered as a whole.” 33 U.S.C. § 921(b)(3). This court reviews
decisions of the BRB under a similar standard; “[the court] review[s] BRB
decisions ‘for errors of law and for adherence to the substantial evidence
standard.’” Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th Cir. 2005) (quoting
Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir. 1998)). Further, “this court
cannot substitute its views for the ALJ’s views.” Id. (quoting Container
Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir. 1991) (internal
quotation marks omitted)). Substantial evidence to support a decision means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)).
The BRB found the record contained substantial evidence supporting the
ALJ’s ultimate conclusion that the 1996 audiogram was the best measure of Hart’s
work-related hearing loss. The ALJ considered the results of twelve audiograms,
performed from 1978 to 1996 while Hart was employed by Matson, as well as two

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audiograms performed after Hart’s retirement. The ALJ determined that the results
of these audiograms indicated that Hart’s hearing had indeed diminished while
employed by Matson, but that the damage had not significantly increased
subsequent to the termination of Hart’s employment. In addition to the audiogram
evidence, the ALJ also credited Dr. Schindler’s testimony that hearing loss
becomes more subtle after extended exposure to noise and that, once Hart was
removed from the noisy environment, further hearing loss was not due to earlier
exposure. The ALJ specifically noted that these conclusions were consistent with
Dr. Schindler’s medical testimony regarding how hearing is damaged.
Hart argues that Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153
(1993), requires employers to conduct an audiogram at retirement in order to
protect themselves from liability for further hearing loss after retirement. Hart
failed to make this argument before the ALJ and the BRB. However, we address it
because it is purely an issue of law. See AlohaCare v. Hawaii, Dept. of Human
Servs., 572 F.3d 740, 744–45 (9th Cir. 2009). Hart is mistaken regarding the
impact of Bath Iron Works.
The LHWCA defines when an audiogram is “presumptive” evidence and
otherwise allows the ALJ to determine which evidence is the most probative. See
20 C.F.R. § 702.441(b). Bath Iron Works does not create a contrary rule.

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Bath Iron Works concerned which provision of the Act governed the
calculation of benefits for hearing loss. 506 U.S. at 154–55. Bath Iron Works
specifically noted that a determination of the amount of hearing damaged caused
was not an issue in that case. Id. at 165. Therefore, the language regarding
“freezing” hearing loss is not a change to an employer’s duties under the law.
Bath Iron Works does not state that an employer must perform an audiogram
at retirement or that, if the employer does not, it will automatically be responsible
for all hearing loss. Instead, Bath Iron Works points out that an employer may
protect itself from liability for post-retirement hearing loss by performing an
audiogram at retirement. While there is no affirmative duty imposed by Bath Iron
Works, employers (who fail to follow the advice of Bath Iron Works) may often be
found liable for post-retirement hearing loss.
AFFIRMED.

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