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Appellate Panel again knocks down reliance on the "true doubt" rule; Longshore claimant loses on "equal" evidence.

Judges hearing Longshore and Harbor Workers’ Compensation claims have long applied a “true doubt” rule – which shifts the burden of persuasion to the party opposing a benefits claim. Although the “true doubt” rule was thrown out in 1994 with the Supreme Court’s decision in Greenwich Collieries (discussed below), there is a pervasive attitude in workers’ compensation that fact disputes should always be resolved in favor of the claimant.

While the Greenwich Collieries decision is nearly 20 years old, the bias is so ingrained that recently proposed changes to the Longshore and Harbor Workers’ Compensation Act, amend Section 901(a) to state “in a claim brought under this Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer, and the laws pertaining to a claim brought under this Act are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either the employee or employer.” (See my earlier post on the proposed changes).

In case decided September 6, 2011, the Court of Appeals (4th Circuit) ruled that where both sides presented diametrically opposed but equal evidence, the claimant must lose.

The Green Decision

Robert Green claimed that exposure to loud noises during 23 years of employment as a Longshoreman caused him to develop compensable sensorineural hearing loss. According to Green, he was often removing and installing twist-lock cargo container “shoes” (which fasten one container to another on a cargo ship). Green alleges that the noise of the freed containers contacting the waiting truck chassis, along with normal dock noises – machinery, diesel forklists, etc., – led to his hearing loss.

Green provided the court with the testimony of his audiologist (Joseph Gillespie) who testified that the claimant suffered from hearing losses at specific frequencies and which impacted the claimant’s ability to distingish some spoken workds, including “the S’s and F’s and K’s and TH’s.” He diagnosed “slight to mild sensorineural hearing loss, left greater than right” and calculated a 3.75% binaural hearing loss. Gillespie recommended that Green obtain in-the-ear hearing aids. Green filed a claim for disability benefits under the Longshore and Harbor Workers’ Compensation Act.

In response, the employer had Green examined by a second licensed audiologist, who performed comprehensive audiological testing on the claimant. This new testing showed no hearing impairment (0% binaural). The claim for benefits was denied.

A trial ensued. Both audiologists testified that in order for two audiograms to be within “good reliability” there should be no more 5db difference between the two tests. The tests in question showed more than 5db variability at tested frequencies. The claimant’s audiologist, Gillespie, testified that the differences between the two tests could be due to

  1. the claimant’s inattentivieness during the test; or
  2. The presence of a cold or other medical condition which could have affected middle ear pressures.

The claimant’s audiologist recommended that the claimant get a new (third) hearing test performed – but he claimant declined to do so.

The Administrative Law Judge found that the audiograms were both credible and “entitled to equal probative value” and so averaged the results to find an overall disability of 1.85% binaural hearing loss. The Benefits Review Board affirmed this decision.

The Appeal.

The employer appealed – arguing that the claimant did not meet his burden of proof under the law. The claimant essentially argued that in the case of a “tie” – two equally credible audiologists with differing views of disability allows the Judge to make a “split the difference” call. The employer argued that the evidence was not simply reliable – that the tests demonstrated too much variability and therefore neither could be relied upon. Further, both audiologists admitted that the variability between the two tests was beyond the threshold for determining reliability – on short, neither test could be considered “reliable” and therefore a Judge averaging two unreliable results could not yield a third, more reliable estimation of disability.

In a new decision issued September 6, 2011, the Appellate Court overturned the decision, citing the Spreme Court’s decision in Director, Office of Workers’ Compensation Programs, DOL v. Greenwich Collieries (93-744), 512 U.S. 267 (1994), which stands for the proposiiton that when the evidence is evenly balanced, the claimant must lose.

Case: Ceres Marine Terminals, Inc. v. Green, — F.3d —-, 2011 WL 3891891 (4th Cir. 2011).

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