Background:
Plaintiff, Claire Green-Brown, ("Green-Brown") brought an action under the Longshore Harbor Workers' Compensation Act ("LHWCA") on behalf of decedent, former longshore worker.

Arthur Brown, decedent, worked as a shipping container repairman for Sealand Sercices, Inc. for about 17 years. While working for defendant, Sealand Services ("Sealand"), the decedent was exposed to loud noises and accordingly, filed a timely LHWCA claim for partial disability benefits due to noise-induced hearing loss suffered while he was employed by Sealand.

Sealand conceded that Brown had hearing loss but disputed the extent of the loss. Brown underwent an audiogram five months after his retirement from Sealand to determine his hearing loss. Brown had multiple audiograms with his final one occurring 18 years after retiring from Sealand. The last test included testing at the 3000 hertz frequency, which happened to be the only one that was conducted in accordance with guidelines set forth by the American Medical Association. (AMA)

Sealand argued, before an Administrative Law Judge (ALJ) that it should consider the initial hearing test, conducted merely 5 months following his retirement.

Ultimately, the ALJ found that the initial hearing examination was a better indicator of the decedent's hearing loss than subsequent audiograms performed 18 years after his retirement.

Brown appealed the decision to the BRB which ultimately found that the ALJ was not precluded from crediting the first exam due to a technical lack of compliance with AMA Guides.

Brown petitioned this Court for review of the BRB decision.

Issue:
Did the ALJ and BRB err finding that the first audiogram was the best measure of decedent's work-related hearing loss at the time he retired?

Held:
Sealand's expert acknowledged that the 3000 hertz frequency, used in the final audiogram, gave a little better flection of "what day to day disability might be".

The ALJ found that a reliable test conducted, but that didn't follow AMA Guides, may still be used to determine hearing loss and compensation. The only limitation being that the non-complaint exam cannot be offered as "pre-sumptive evidence of the amount of hearing loss".

The LHWCA mandates all hearing loss determinations must be made in accordance with an audiogram that complies with the AMA Guides. The statute states that an ALJ may credit an audiogram as determinative evidence of hearing loss so long as it complies with certain steps and may further serve as "presumptive evidence" of a hearing loss.

 This Court held that such language was not consistent with the ALJ's finding that the first audiogram could be relied upon because it did not include a 3000 hertz frequency test as required by the AMA Guides.

Accordingly, this Court held that the final audiogram may be the only one used in determining decedent's compensable hearing loss attributed to his work.

Comment:
Under the LHCWA, determinations of hearing loss "shall be made" in accordance to AMA guidelines. The AMA Guides are clear in providing that each ear should be tested separately with pure-ton audiometers at hearing levels recorded at 500, 1000, 2000, and 3000 Hz.

Furthermore it is necessary that the hearing level for each frequency be determined in every subject. The first few audiograms, conducted shortly after the decedent's retirement, did not comply with these regulations. However, the audiogram conducted nearly 18 years following decedent's retirement did and therefore would be the test considered by the ALJ, on remand, to determine compensable loss.

Steve Gordon