Ceres Marine Terminals, Inc. v. Green, No. 10-1122

Decided: Sept. 6, 2011

Robert Green, a twenty-three year member of the International Longshoremen’s Association, worked for Ceres installing and removing “shoes” that fasten large containers together on cargo ships. Upon suggestion from family members, Green visited Mr. Joseph Gillespie, a board-certified audiologist, complaining of hearing loss. Mr. Gillespie performed a full evaluation and found that Green had suffered extensive hearing loss in both ears and recommended Widex Inteo hearing aids. When Green filed a Longshore and Harbor Worker’s Compensation (LHWCA) disability claim with Ceres, blaming the loud and frequent noise associated with his position, his employer sent him to another audiologist, Stuart Cohen, for a second opinion. Cohen found no significant hearing loss, though he did suggest Green purchase a less expensive hearing aid for his left ear. The Administrative Law Judge (ALJ) that heard the claim found both tests to be equally probative and decided to “average” the amount of hearing loss found by the two audiologists (3.75 and 0% binaural hearing loss respectively, averaged to 1.875%), citing Steevens v. Umpqua River Navigation, 35 Ben. Rev. Bd. Serv. (MB) 129, 133 (2001). The ALJ decision was affirmed by Benefits Review Board.

On appeal, the Fourth Circuit reversed. The court explicitly noted an ALJ’s ability to average conflicting though equally probative evidence in some instances. However, citing the Supreme Court decision in Dir., Office of Workers’ Comp. Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267 (1994), the court found that when evidence is directly conflicting as to whether disability even exists, the plaintiff has not met its burden of proof; specifically, one cannot average 3.75% with 0%.

Full Opinion

-C. Alexander Cable

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