* District Judge of the Southern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–4905.

AVONDALE INDUSTRIES, INC., Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States

Department of Labor and Wilton J. Cuevas, Respondents.

Nov. 16, 1992.

Petition for review of an order of Benefits Review Board.

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON, District Judge. * *

HARMON, DistricJudge:

Petitioner Avondale Industries, Inc. challenges a final order of the Benefits Review Board,

affirming an Administrative Law Judge's finding that Avondale Industries, Inc. is responsible for

Respondent–Claimant Wilton J. Cuevas' compensation for occupational hearing loss under the

Longsh ore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 e t seq. Specifically the

employer argues that the Administrative Law Judge and the Benefits Review Board misapplied the

rule that the last marit ime em plo yer to expose a claimant to injurious stimuli before the claimant

became aware of his impairment is the responsible party. Because we find that there is no error of

law and because the record supports the Board's determination that the Administrative Law Judge's

findings were based on substantial evidence, we AFFIRM.

I. Factual and Procedural History

From 1960–1967, when he was employed as a weld er and crane operator for Avondale

In dust ries, Inc. ("Avondale"), Wilton J. Cuevas ("Cuevas") was continually exposed five to seven

days a week to injurious noise emitted from chipping hammers, chains, and fitters in the workplace.

Subsequently, in 1971 Cuevas worked as a stevedore at Sealand Terminal Corporati on ("Sealand")

for three to four weeks, between two to six hours a day, unloading bananas from a conveyor belt,1 The aggravation rule allows a claimant compensation for his entire hearing loss where

work-related acoustic trauma aggravates or combines with a prior hearing impairment. See, e.g.,

Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986) (en banc). occasionally near a forklift that would remove the bananas from the dock area. On September 23,

1986, an audiogram performed on Cuevas by Dr. Thomas Graves revealed a 20.3 percent binaural

sensorineural hearing loss, which Graves concluded was noise-induced. Report, Cuevas' Exh. # 3 in

Apr. 7 , 1989 hearing before ALJ. On April 2, 1987, Cuevas filed a claim against Avondale for

occupational hearing loss pursuant to the Longshore and Harbor Worke rs' Co mpensation Act

("LHWCA"), 33 U.S.C. §§ 901 et seq. A second audiogram on September 28, 1988, administered

by Dr. Gordon Lee Stanfield, reflected a 16.8 pe rcent hearing loss in the left ear, a 61.88 percent

impairment of the right ear, of which 16.8 percent was attributed to occupational noise exposure, and

a 24.31 percent overall binaural hearing loss. Following a hearing, in a Decision and Order dated

September 18, 1989 (Rec., Vol. I, 32–38, repeated 62–68), an Administrative Law Judge ("ALJ")

found that the two audiograms demonstrated a work-related hearing loss that met the requirements

for compensation under 33 U.S.C. § 908(c)(13). The ALJ then averaged the 20.3 percent binaural

impairment found by Dr. Graves and the 16.8 percent found by Dr. Stan field and concl uded that

Cuevas had an 18.55 percent binaural hearing loss. The ALJ further found that Avondale failed to

prove that Cuevas was exposed to injurious noise during his subsequent employment at Sealand and

that Avondale was the employer responsible for compensation to Cuevas.

On appeal, Cuevas challenged the ALJ's calculation of compensable impairment, while

Avondale cross-appealed the determination that it was the responsible employer. Rec., Vol. I, 2–5.

In a September 23, 1991 Decision and Order, the Benefits Review Board ("Board") found that the

ALJ erred in failing to apply the aggravation rule 1 when he determined what percentage of Cuevas'

hearing loss was compensable. Moreover, the Board modified the award based on its established rule

that an award for occupational, noise-induced hearing loss must be based on a binaural assessment.

Thus the Board c o ncluded that the ALJ should have used Dr. Stanfield's figure of 24.31 percent

binaural impairment, rather than the 16.8 percent for one year. It recalculated the appropriate award

by averaging the correct figures (20.3 percent and 24.31 percent) for a determination of 22.3 percent2 "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).

The Board must accept the ALJ's findings unless they are contrary to law, irrational, or

unsupported by substantial evidence. Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1011

(5th Cir.) (citing Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028

(1947)), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613 (1981). binaural impairment. This ruling has not been appealed.

Otherwise the Board 2 found that there was substantial evidence in the record to support the

ALJ's decision and that it was reasonable. It therefore affirmed t he finding that Cuevas was not

exposed to injurious stimuli while h e wo rked at Sealand and that Avondale was the maritime

employer responsible for compensation.

Contesting the finding of its responsibility for compensation, Avondale filed a t imely petition

for review by this Court under 33 U.S.C. § 921(c).

II. Discussion

(A) Standard of review

This Co urt 's review is limited to determining whether the Board's decision correctly

concluded that the ALJ's order was "supported by substantial evidence on the record as a whole and

is in accordance with the law." O dom Construction Company v. United States Department of Labor,

622 F.2d 110, 115 (1980), c ert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (19 81),

quot ing Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir.1978) "Substantial

evidence is evidence that provides "a substantial basis o f fact fro m which the fact in issue can be

reasonably inferred

... more than a scint illa

... more than create a suspicion

... such relevant evidence

as a reasonable mind might accept as adequate to su pport a concl usi on.' " D iamond, 577 F.2d at

1006, quoting NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299–300, 59 S.Ct.

501, 504–505, 83 L.Ed. 660 (1939). The substantial evidence standard is less demanding than that

of preponderance of the evidence, and the ALJ's decision need not constitute the sole inference that

can be drawn from

the facts. I

d. As fact finder, the ALJ determines questions of credibility of

witnesses and of conflicting evidence. He is not required to accept the opinion or theory of a medical

expert that contradicts the ALJ's findings based on common sense. Atlantic Marine v. Bruce, 661F.2d 898, 900 (5th Cir.1981).

(B) Relevant Law

Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913,

76 S.Ct . 196, 100 L.Ed. 800 (1955), established the "last employer rule" for determining under

LHWCA which marit ime employer is responsible for payment of the full amount of benefits awarded

as compensation to claimants for occupational diseases, including noise-induced hearing loss:

Congress intended that the employer during the last employment in which the claimant was

exposed to injurious st imuli, prior to the date upon which the claimant became aware of the

fact that he was suffering from an occupational disease arising out of his employment, should

be liable for the full amount of the award.

See also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir.) (applying Cardillo 's last

employer rule), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613 (1981); A rgonaut

Insurance Company v. Patterson, 846 F.2d 715, 719 (11th Cir.1988) (stating that prior to the split

of t he 5t h and 11th Circuits, the Circuit adopted the last employer rule in F ulks ). This rule was

created to avoid the difficulties and delays in administration which would result if courts attempted

to apporti on liabilit

y among mult iple employers. C ardillo, 225 F.2d at 145. Moreover "[t]he nature

of occupational diseases ... makes it exceedingly difficult

, if not practically impossible, to correlate

the progression of the disease with specific points in time or specific in dust rial experiences."

Cardillo, 225 F.2d at 144.

In Suso eff v. The San Francisco Stevedoring Co., 19 BRBS 149, 1986 WL 66392 at *2

(Ben.Rev.Bd. Nov. 28, 1986), the Board stated, "Th e last employer rule is not a rule of

compensability. Rather, it is a judicially created rule for allocating liability among employers in cases

where an occupational disease develops after prolonged exposure." Thus a claimant does not have

to prove that his employer is liable. Once he has demonstrated a p rima facie entitlement to benefits

by showing that he "sustained physical harm and that conditions existed at work which could have

caused the harm," he has established his "exposure to injurious stimuli during employment covered

under the [LHWCA], and there exists a compensable claim. Employer can then rebut this

presumption by showing that exposure to injurious stimuli did not cause the harm.... [or] that

employee was exposed to injurious stimuli while performing work covered under the [LHWCA] fora subsequent employer" (citations omitted). Id. See also General Ship Service v. Director, Office

of Workers' Compensation Programs, 938 F.2d 960, 961 (9th Cir.1991) (applying Susoeff ).

The Fifth Circuit has further held that, regardless of the brevity of the exposure, if it has the

potential to cause disease, it is co nsidered injurious. F ulks, 637 F.2d at 1012 (refusing to set de

minimis standards for duration of exposure).

Avondale's counsel contended at oral argument that its burden of proof to show a potentially

injurious environment under a subsequent, marit ime employer is "featherweight," like the claimant's

in establishing a prima facie case. He provided no legal authority for his stance. This Court finds

no policy underlying the last causative employer rule to justify lightening Avondale's burden to rebut

the presumption that it is liable. If anything, the rule is designed to insure that an injured worker is

comp ensated without delays and without administrative difficulties, not to protect employers. Indeed,

although t he shift ing burden of proof provides the employer with an opportunity to safeguard its

interests, the rule can operate inequitably where the claimant worked only a minimal time for the last

covered employer.

(C) Application

The issue before this Court is whether the Board correctly determined that the ALJ did not

err in finding that Avondale failed to meet its burden of proof.

The parties stipulated that Cuevas suffered a hearing loss because of workplace noise and that

Cuevas became aware of his injury during the first audiogram on September 23, 1986, substantially

after his employment by both Avondale and Sealand. Avondale, against which Cuevas filed his claim,

does not contest Cuevas' exposure to injurious noise at its workplace. At issue before the ALJ was

whether Cuevas was exposed to injurious noise at Sealand, his last covered employer covered by the

LHWCA. If not, Avondale is responsible for his compensation.

The ALJ ruled that Avondale did not satisfy its burden of proof to rebut the presumption that

it was the responsible employer because it did not show subsequent injurious exposure at Sealand.

The ALJ fo und t hat t he only evidence offered by Avondale, the post-hearing deposition of Dr.

Stanfield, was too speculative and t hus o f lit t le weight. Since by stipulation Cuevas established a3 At the close of the April 7, 1989 hearing, the ALJ allowed Avondale to keep the record open

to take Dr. Stanfield's deposition, which occurred on May 23, 1989. prima facie case, the burden shifted to Avondale to show that Seal and, as a subsequent employer

covered by LHWCA, exposed Cuevas to injurious noise and is therefore liable for his compensation.

At the hearing on April 7, 1989, Cuevas testified that the noise at Avondale's shipyard was

so loud that "you couldn't hardly hear yourself talk." Rec., Vol. II, 8. In contrast, he described the

noise environment at Sealand as "just like around town, standing on a corner...." I d. at 10. His job

was to take bananas off a little conveyor belt, made mostly of rubber, and to load them onto another

man's back. I

d. at 12–13, 15, 16. He did not operate a forklift, crane, or other equipment at Sealand.

Id. at 12, 16. Occasionally forklifts and machinery came by, and the men would take their load of

bananas about twenty-five yards and set them down. I d. at 14. No material was offloaded from the

boats by crane. Id.

After Cuevas filed his claim, Avondale sent him to Dr. Stanfield for another audiogram. Rec.

Vol. II, 17. Subsequently Cuevas' claim was presented to the ALJ. As its only evidence to rebut the

presumption of its liabilit y, Avondale submitted, with approval of the ALJ, a transcript of Stanfield's

post-hearing deposition. During that deposition, Avondale's attorney asked Stanfield to respond to

a hypothetical question conditioned on some suggestively worde d and unsubstantiated assertions

about Sealand's workplace:

Doctor, if I was to tell you that Mr. Cuevas has testified at the trial 3 of his case in 1971, which

would have been after he worked for Avondale, that he work ed for Sea–Land Terminal

Corporati on in Gulfport, and worked there for a minimal period of time for the quarter April

to June, and then worked another week or so for the quarter July to September of that year, again 1971, that in that employment he worked as a stevedore unloading bananas off of ships

that came into the Gulfport facilit y, that in that job he worked more or less on a conveyor belt

where the conveyor would go into the hold of the ship, bananas would then be placed on the

conveyor belt, then come out of the hold of the ship onto the dock, where Mr. Cuevas would

take bananas as they came from the conveyor belt, take them off of the conveyor belt, and

either put them on someone's shoulder, another stevedore, or would put them on a pallet for

the fo rklift, that he worked on the dock, that there were forklifts that were involved in his

employment, that he came in contact with these forklifts on a regular basis, and was involved

with this conveyor system th at went into the hol d of the shi p i n order to transport the

bananas, knowing that he worked around forklifts, ships, conveyor belts, and t he normal

noises that one would associate with dock activity, do you feel that he was exposed during

that employment to high levels of noise or dangerous levels of noise, that is sufficient enough

to cause hearing loss?Complete transcript of Dr. Stanfield's May 23, 1989 deposition ("Dep."), pp. 21–23.

Dr. Stan f ield did not hear or review Cuevas' actual testimony at the April 7, 1989 hearing;

the hypothetical question, which exaggerated Cuevas' st at ed contact with forklifts and implies the

dock a rea and conveyor system were noisy, was Stanfield's sole guide to alleged conditions of

Cuevas' employment at Sealand. A visit to the premises, eighteen years after the time in issue, was

not likely to be probative.

Stanfield answered the question with a further inaccuracy about the legally irrelevant duration

of the Sealand job and with emphasis on the limited picture provided to the audiologist:

Wit hin the confines of what you have given me there of approximately six months, from what

I gat her, probably, on and off, and the equipment of forklifts or tow motors, conveyor

systems, I would without any othe r info rmation feel like there was probably potentially

hazardous noise in the environment.

I have not measured the specifics that you said or t he particular environment. I have take

measures on forklifts in other environments, and I would probably be basing it primarily on

that information, and I have measured them at greater than eighty-five, eighty-five to possibly

eighty-eight db levels, and I feel like at that point you are becoming into [ sic ] a hazardous

noise area.

Dep. at 23–24. He further stated that "the forklift itself measures generally over eighty-five. The

backup warning devices, which are generally required on them go even higher...." Id. at 26.

On cross-examination, Stanfield admitted that he had never seen any dosimeter studies that

might have been performed on Sealand's equipment or work areas. I d. at 25. Moreover in response

to the critical question, "Wouldn't it be important to know how close the patient was to the

forklifts?," Stanfield answered, "Well, the most desirable on e would have been to have full sound

recordings and dosimeters, yes. Certainly." I d. at 27. Although Avondale had the burden of proof,

its counsel never asked Cuevas how near to the forklifts he had worked. Finally, when Stanfield was

asked if he had any reason to disbelieve Cuevas' testimony that the noise at Sealand was not unusually

loud, Stanfield replied, "No. A forklift is not a terribly loud device." Id. at 28.

We find reasonable and substantially supported by the record the ALJ's decision to believe

Cuevas' testim

o ny o f personal experience over Stanfield's theoretical response to a hypothetical

question of dubious accuracy and completeness.

The Director of the Office of Workers' Compensation Programs has asked the Court to issuea procedural rule mandating the joinder of any alleged, subs equent causative employer before the

ALJ. Because the Court upholds the decision of the Board here, that request is not relevant to this

case. Moreover we consider this issue to be more appropriately addressed to the agency or the ALJ.

Accordingly, we AFFIRM the Board's decision.