Claimant was employed by Employer from 1977 to 1987.  Thereafter, he worked for a number of other non-maritime employers.  In 2006, Claimant underwent a pre-employment audiogram for a non-maritime employer.  At that time, it was determined that he possessed a 10% binaural hearing impairment.  Claimant was then re-evaluated in 2011, at which time he was found to have a 24.7% binaural hearing impairment.  Employer accepted the 10% impairment and paid permanent partial disability benefits for same.  Claimant contested the payment as rendered, alleging that he was entitled to an additional 14.7% permanent partial disability to compensate him for the entirety of his hearing loss as per the 2011 audiogram.

The ALJ determined that Claimant was limited to a 10% loss, stating that Employer had successfully rebutted the 20(a) presumption and finding that the 2006 audiogram was more probative of Claimant’s hearing loss upon leaving covered employment because it was performed closer in time to that employment.  Claimant appealed.  He alleged that the 2006 audiogram was not the most reliable and that Employer should be liable for the entirety of any hearing loss.

Noting that the Supreme Court has found that noise-induced occupational hearing loss is not progressive, but is complete when the exposure ceases, the BRB declined to find that Employer was liable for the entirety of the hearing loss.  The BRB further concluded that the more reliable evidence of Claimant’s work-related hearing loss was the 2006 audiogram, as it was taken nearer in time to Claimant’s last day of covered employment.  Essentially, the BRB determined that where there are two audiograms probative of the degree of hearing loss, the more reliable evidence of work-related hearing loss is the audiogram that is performed nearest to the last date of covered employment.

Ostarly v. Huntington Ingalls, Inc., BRB No. 13-0539 (May 28, 2014).