* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60677

Summary Calendar

_____________________

JOHN G. LAMEY,

Petitioner,

versus

INGALLS SHIPBUILDING, INC. and

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

_________________________________________________________________

Petition for Review of Decision and Order

of the Benefits Review Board,

United States Department of Labor

(93-LHC-1553)

_________________________________________________________________ June 11, 1997 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: *

John G. Lamey seeks review of the decision of the Benefits

Review Board, United States De partment of Labor, affirming the

de nial of benefits under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. §§ et. seq. (LHWCA). We A FFIRM in part

and VACATE in part.

I.- 2 -

In 1971, Lamey worked for approximately 30 hours at Ingalls

Shipbuilding, Inc. as a welder. Most of the time, Lamey worked in

two different buildings on land, learning welding and constructing

parts to be placed on the ships being built. According to Lamey,

the work environment was “ very loud”, and noise level studies

revealed that the welding machine he worked on yielded 85 decibels.

At some point, Ingalls told Lamey that “the next day”, he

would be working on board one of the ships. Lamey walked onto the

ship, looked around, and decided he did not want to work there

— so

he quit. Lamey admitted that he never actually worked on board a

vessel. Upon leaving Ingalls, Lamey worked for other employers,

including at Quality Marine, Inc. from 1974 through 1976, operating

an electrical welding machine to construct bulkhead s on shrimp

boats.

In October 1988, Lamey filed a claim for compensation benefits

under the LHWCA against Bender Shipbuilding Company, later amending

his claim to name Ingalls as the responsible employer. Lamey

alleged, based on an audiogram that revealed a hearing loss of 8%

in his right ear, 0% in his left ear, and a binaural hearing

impairment of 1%, that he had suffered an occupational hearing loss

of 8%. I ngalls voluntarily paid Lamey $194.80 for his 1% binaural

impairment. However, Lamey sought additional benefits, and his

case proceeded to trial in Octobe r 1993 before an Administrative

Law Judge.- 3 -

T he ALJ found that Lamey failed to meet the jurisdictional

requirements for pre-1972 coverage under the LHWCA; that Ingalls

was not the last maritime employer to expose Lamey to injurious

stimuli; that Lamey failed to establish a prima facie case against

Ingalls; and that interest (if compensation had been awarded) would

accrue only from the date of judici al demand. Consequently,

Lamey’s claim for benefits was denied, and Lamey was ordered to

repay compensation Ingalls had previously paid him.

Lamey appealed to the Benefits Review Board, which summarily

affirmed pursuant to provisions of the Omnibus Appropriations for

Fiscal Year 1996, Pub. L. No. 104-134.

II.

Our review of decisions of the Benefits Review Board is

limited to “considering errors of law and ensuring that the Board

adhered to its st atutory standard of review, namely, whether the

ALJ’s findings of fact are supported by substantial evidenc e and

consistent with the law”. M unguia v. Chevron U.S.A., Inc.

, 999

F.2d 808, 810 (5th Cir. 1993); see Avondale Shipyards, Inc. v.

Kennel

, 914 F.2d 88, 90 (5th Cir. 1990); see also 33 U.S.C. §

921(b)(3).

A.

Lamey first challenges the ALJ’s determination that he failed

to meet the jurisdictional requirements for pre-1972 coverage under

the LHW CA because there was no evidence that he was exposed to- 4 -

noise while on board a vessel. Lamey asserts that this conclusion

is “contrary to the overwhelming evidence in this case”. This

conclusion is supported by the evidence.

Prior to the 1972 amen dments to the LHWCA, coverage was

limited to injuries “occurring upon the navigable water s of the

United States (including any dry dock)”. 33 U.S.C. § 903(a)

(1970). Because Lamey admitted that he never actually worked on

board a vessel while working for Ingalls, and because the only

testimony as to his noise exposure concerned his land-based work,

it is not possible that he was exposed to injurious noise levels on

“navigable waters of the United States”.

B.

In the alternative, Lamey attacks the ALJ’s findings that he

failed to establish a prima facie entitlement to benefits and that

there was a subsequent maritime employer that exposed Lamey to

injurious noise stimuli. Both findings are supported by

substantial evidence and are consistent with the law.

Under the LH WCA, a claimant establishes 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”. See Avondale Indus., Inc. v. Director, Office of Workers’

Compensation Programs

, 977 F.2d 186, 190 (5th Cir. 1992) (citation

and internal quotation marks omitted). Thus, an essential element- 5 -

of Lamey’s claim is a causal connection between his hearing

impairment and his employment with Ingalls.

In this case, Lamey failed to establish that there were

w orking conditions at Ingalls that could have caused his hear ing

loss. Although it is undisputed that Lamey worked at Ingalls from

July 26 to July 3 0, 1971, for a total of approximately 30 hours,

Lamey introduced no evidence that exposure to noise for such a

short period of t ime could have caused hearing loss. In fact,

there was evide nce in the record that one of the “most important

features generally characteristic of occupational hearing loss”

includes “long-term exposure to intense noise levels” and that such

hearing loss usually develops “gradually, over a period of years”.

Five days of employment can hardly be considered long-t erm

exposure.

In addition, such hearing loss is a lmost always bilateral,

meaning t he loss is the same in both ears, and while Lamey’s

audiogram revealed an 8% loss in his right ear, it showed a 0% loss

in his left ear. Finally, Lamey’s evidence that he had a hearing

impairment at the time he ceased working for Ingalls is extremely

tenuous; he left Ingalls in 1971, but his audiogram was not taken

until 1988.

Even assuming that Lamey established a prima facie case,

Ingalls could rebut this pre sumption by showing that Lamey “was

exposed to injurious st imuli while performing work covered under- 6 -

the [LHWCA] for a subsequent employer.” See Avondale Indus. , 977

F.2d at 190 (citation and internal quotation marks omitted). Lamey

last worked for Ingalls in 1971, but worked for Quality Marine from

1974 through 1976 as a welder on the bulkhead of a shrimp boat.

Lamey’s audiogram was performed in 1988, after working for both

Ingalls and Quality Marine. Thus, if Ingalls established that

Quality Marine exposed Lamey to injurious noise levels, Lamey’s

claim would fail.

Lamey testified that he used an electric welding machine while

working for Qua lity Marine. Noise level studies from Ingalls

revealed that a center fillet welding machine yielded 85 decibels,

and aluminum welding elsewhere at Ingalls tested at 89 and 93

decibels. Studies of other shipbuilding factories showed readings

ranging from 82 to 103.7 decibels for welders. Expert testimony at

trial revealed that noise levels of 85 decibels and above is

potentially injurious and that some individuals can even be injured

by levels lower than 85 decibels. In sum, there was ample evidence

to support the ALJ’s findings that Lamey failed to establish the

causat ion element of his p rima facie case and that Ingalls

successfully established that it was not the last maritime employer

to expose Lamey to injurious noise levels.

C.

Because we conc lude that the ALJ was correct in denying

Lamey’s claim for benefits, we need not address the determination- 7 -

that any interest due to Lamey would accrue only from the date of

judicial demand.

D.

As a final matter, Lamey maintains that the ALJ was without

jurisdiction or authority to order him to repay to Ingalls the

compensation it had previousl y paid. Ingalls responds that,

“[ s]olely for the purposes of this claim ”

, it agrees to an ord e r

vacating this holding. We therefore vacate the order to that

extent.

III.

For the foregoing reasons, the order of the Benefits Review

Board is

AFFIRMED in part and VACATED in part.