When Claimant worked as a longshoreman for eighteen years, he operated heavy equipment and was exposed to loud machinery noises. An otolaryngologist appointed by the Department of Labor (“DOL”) tested Claimant’s hearing twice. The first test demonstrated a 56% impairment while the second test demonstrated a 39.6% impairment. The DOL doctor testified that surgical exploration was necessary to determine if surgery would correct Claimant’s hearing. The best treatment was the use of hearing aids. Ultimately, the administrative law judge (“ALJ”) presiding over the case accepted the DOL doctor’s opinions and averaged out the impairment ratings to determine that Claimant suffered a 47.8% binaural loss.
Employer appealed the ALJ’s decision, arguing that Claimant had not yet reached maximum medical improvement because the DOL doctor found a conductive component to Claimant’s hearing loss. Because there is a conductive loss, there is a possibility that surgery could correct some of the hearing loss. Based on the facts of this case and the DOL doctor’s findings, the Fifth Circuit disagreed:
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. 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.
Employer also argued that the ALJ erred by averaging the DOL doctor’s audiogram results. Again, the Fifth Circuit disagreed:
Ceres Gulf contends that the ALJ committed legal error in averaging the results of Dr. Marsk’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 exits 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.
Ceres Gulf, Inc. v. Dir., OWCP, No. 12-60927 (5th Cir. May 24, 2013) (unpublished).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
