Port of Portland v. Director, Office of Workers Compensation Programs United States Department of Labor, Saif Corporation Jones Oregon Stevedoring Company Brady-Hamilton Stevedore Company or Port of Portland v. Director, Office of Workers Compensation Programs Donald R. Ronne, Sr.

Citations: 932 F.2d 836; 91 Daily Journal DAR 5492; 91 Cal. Daily Op. Serv. 3424; 1991 U.S. App. LEXIS 33754Docket: 89-70353

Court: Court of Appeals for the Ninth Circuit; May 10, 1991; Federal Appellate Court

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Port of Portland and its insurer, SAIF Corporation, petitioned for review of a Benefits Review Board order awarding Donald Ronne benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) for his hearing loss. The Board concluded that Ronne is entitled to full compensation for his hearing loss, despite attributing part of it to aging, and determined that Port of Portland, as Ronne's employer at the time of the audiogram, is responsible for the payment rather than his last employer, Jones Oregon Stevedoring Company.

Ronne had worked in environments with excessive noise from 1970 to 1979 and sought medical evaluation for hearing difficulties on June 19, 1981. An audiogram conducted shortly thereafter indicated an 8.75 percent hearing loss, which was identified as work-related. After reviewing the audiogram results on July 6, 1981, Ronne filed claims against his employers. Initially, an Administrative Law Judge (ALJ) dismissed the claim as time-barred, but the Board reversed this decision, leading to further proceedings.

Despite conflicting evidence regarding the extent of Ronne's hearing loss attributable to age-related factors, the ALJ ultimately awarded him compensation for all his hearing loss, placing liability on Jones Oregon as the last employer exposed to industrial noise. However, the Board later affirmed the full compensation but shifted liability to Port of Portland, establishing that the date of Ronne's awareness of his disability, July 6, 1981, was critical in determining the responsible party.

Port of Portland and SAIF Corporation appeal the Board's decision regarding compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA). The Board is required to accept Administrative Law Judge (ALJ) findings unless they contradict the law, are irrational, or lack substantial evidence. While the Board's interpretations are respected, they do not receive special deference as the Director of the Office of Workers' Compensation Programs does. The appeal centers on the liability of employers regarding a compensation award for Ronne's hearing loss, with the Board applying the aggravation rule, which allows for full compensation if a work-related injury aggravates a preexisting condition. Port of Portland contends the aggravation rule is inapplicable since the noise-induced hearing loss did not impact the age-related loss, claiming that the rule cannot be applied additively. However, the argument is rejected as it conflicts with LHWCA precedent and policy. The aggravation rule holds that an employment injury that combines with a preexisting impairment to create a greater disability warrants full compensation, regardless of whether the injury worsens the underlying condition. Ronne's disability claim is thus supported, as he does not need to prove that his conditions interacted beyond an additive manner for compensation.

The interpretation of the aggravation rule aligns with the Longshore and Harbor Workers’ Compensation Act (LHWCA), which aims to provide employees with complete recovery. An impaired worker suffers a greater degree of disability from a work-related injury than an unimpaired worker, and limiting compensation based on unimpaired standards would undercompensate them. The aggravation rule applies regardless of whether the worker's major injury occurred with a specific employer. Consequently, Ronne is entitled to full compensation without deductions for potential age-related hearing loss.

The more complex issue is determining which of Ronne's employers should pay his award. Port of Portland contends that the Board misapplied the 'last employer rule.' The foundational case for this rule, *Traveler's Insurance Co. v. Cardillo*, states that the last employer exposed to harmful stimuli before the claimant recognized their occupational disease is liable for the full award. This principle was adopted in *Cordero v. Triple A Machine Shop*, which highlighted the importance of the onset of disability in assigning liability.

In Ronne's case, his audiogram indicated hearing loss before his employment with Port of Portland began, making it impossible for that employer to have contributed to his hearing loss. Thus, while the Board's approach allows for liability without establishing a medical causal link, it requires that the liability rests with the employer responsible for the most recent injurious exposure. Consequently, liability should fall on Jones Oregon, the last employer who could have contributed to Ronne's disability, as any exposure at Port of Portland is moot for this claim.

The Board determined that the Port of Portland is the liable employer based on the date Ronne became aware of his disability, specifically when his attorney received the audiogram report. The distinction between the date of awareness and the onset of the disability, as referenced in Cardillo, does not impose liability on an employer that could not have contributed to the disability. The Board's position that the same date of awareness governs both employer liability and the start of limitations is rejected, with no legislative intent found to support this view. 

The time-bar provisions and the last employer rule serve different purposes: the former aims to prevent fraudulent claims and ensure timely investigation of injuries, while the latter assigns liability among potentially liable employers to avoid administrative complications. There is no evidence that amendments to procedural rules were intended to change substantive liability assignments. Under the Cardillo-Cordero rule, Jones Oregon, the last employer to expose Ronne to harmful stimuli before the audiogram, is found liable for his hearing disability. Ronne is entitled to full compensation, and the Benefits Review Board's order against Port of Portland is reversed, with the case remanded for further proceedings in line with this opinion.

Reversal and remand are ordered in this case regarding the Longshore and Harbor Workers' Compensation Act (LHWCA). The LHWCA alleviates the impact of the aggravation principle on employers in two key ways: 

1. **Limitation of Liability**: Under Section 8(f), 33 U.S.C. § 908(f), an employer's liability in 'second injury' cases is restricted, transferring the remaining liability to a special industry fund (Strachan Shipping Co. v. Nash, 782 F.2d 513, 520 (5th Cir. 1986)).
   
2. **No Double Recovery**: Employees cannot receive compensation for disabilities for which they have already been compensated (33 U.S.C. § 903(e)).

The Act ensures that benefits are available to all employees, regardless of their health status, acknowledging that employers accept the inherent vulnerabilities of their workers (J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144, 147-48 (D.C. Cir. 1967)). 

The 'last employer rule' assigns full liability for occupational diseases to the last employer or insurer where exposure occurred, even if the claimant had multiple periods of employment or coverage (Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir. 1955)). This rule was reaffirmed in Lustig v. Director, Office of Workers' Compensation Program, 881 F.2d 593, 596 (9th Cir. 1989).

Claimants must notify of an occupational disease and file claims within specified timeframes, which start upon awareness of the connection between employment and the disease (33 U.S.C. § 913(b)(2)). The 1984 amendments introduced a provision that the time to file a hearing loss claim begins only after receiving an audiogram indicating work-related hearing loss (33 U.S.C. § 908(c)(13)(D)). The Board's reliance on Larson v. Jones Oregon Stevedoring Co., 17 BRBS 205 (BRB 1985) was noted, although that case did not reach this court.