Curtis Watson v. APS Stevedoring, LLC (Board decision, June 9, 2025)

BRB interlocutory order. The Benefits Review Board affirmed medical benefits for work-related hearing loss but vacated the denial of disability compensation and remanded that issue. The amount of any disability compensation remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

Curtis Watson sought longshore benefits for hearing loss after working around heavy equipment at the Port of Jacksonville. An administrative law judge awarded medical benefits but denied disability compensation because he had given late notice of the injury. The Board held that the judge had not adequately explained how the notice delay actually prejudiced the employer's ability to investigate or defend the claim. It vacated the compensation denial and directed the judge to reconsider prejudice and, if needed, the extent of hearing loss shown by the audiograms. The medical benefits award remains affirmed.

Decision snapshot

• Authority: Prejudice from late notice under 33 U.S.C. § 912(d)(2); hearing loss compensation under 33 U.S.C. § 908(c)(13).
• Outcome: Medical benefits affirmed; disability compensation denial vacated and remanded.
• Key point: Late notice bars compensation only if the employer shows actual prejudice, which the judge must assess using the record.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 23-0501

CURTIS WATSON
)
)
Claimant-Petitioner
)
)
v. )
)
APS STEVEDORING, LLC
)
)
and
)
NOT-PUBLISHED
)
AMERICAN LONGSHORE MUTUAL
)
ASSOCIATION, LTD. c/o THE
) DATE ISSUED: 06/09/2025
AMERICAN EQUITY UNDERWRITERS,
)
INCORPORATED
)
)
Employer/Carrier-
)
Respondents
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent
)
DECISION and ORDER
Appeal of the Decision and Order Denying Compensation Benefits and Awarding Medical Benefits of Monica Markley, Administrative Law Judge, United States Department of Labor.

Arthur J. Brewster and Jeffrey P. Briscoe (The Brewster Law Firm, LLC), Metairie, Louisiana, for Claimant.

Brian P. McElreath and J. Jacob Nixon (Lueder, Larkin & Hunter, LLC), Mount Pleasant, South Carolina, for Employer and Carrier.
 Victoria Yee (Emily H. Su, Deputy Solicitor for National Operations;
Jennifer Feldman Jones, Acting Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and JONES, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals Administrative Law Judge (ALJ) Monica Markley’s Decision and Order Denying Compensation Benefits and Awarding Medical Benefits (2021-LHC- 00209) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act).1 We must affirm the ALJ’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant alleges he sustained hearing loss while working as a longshoreman with Employer. He testified he has worked at the Port of Jacksonville since 1976 and for Employer on numerous occasions; he performed various jobs as a car driver, forklift operator, dock worker, lasher, water man, and line handler. Hearing Transcript (TR) at 24- 25, 98-99. He testified he was exposed to loud noise from the sounds of excavators, dump trucks, cement trucks, and other heavy equipment, some of which did not have mufflers, during his work at the port and for Employer. Id. at 31-32. Other than his exposure to noise during his workday as a longshoreman and when attending sporting events three to five times a year, Claimant stated he is not exposed to loud noise. Id. at 31-32, 78-80, 82.

After his family informed him that he spoke loudly, did not hear them when they spoke to him, and kept the sound on his television at a very loud level, Claimant underwent an audiogram on July 3, 2019. TR at 34. Dr. Sara Miers, an audiologist, performed the audiogram which demonstrated Claimant suffered from a 13.4% binaural hearing loss. Claimant’s Exhibit (CX) 1; Employer’s Exhibit (EX) 12. Claimant received Dr. Miers’ report the day the audiogram was performed. Cl. Brief at 1; TR at 67-68. Dr. Miers determined Claimant has hearing loss from his occupational noise exposure and needs

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Eleventh Circuit because Claimant sustained his injury in Jacksonville, Florida. 33 U.S.C. §921(c); see Roberts v. Custom Ship Interiors, 35 BRBS 65, 67 n.2 (2001), aff’d, 300 F.3d 510 (4th Cir. 2002); 20 C.F.R. §702.201(a).

2 hearing aids and annual examinations. CX 1; EX 12; TR at 43, 73. Claimant returned to his usual job as a longshoreman on July 3, 2019, following the evaluation. Joint Exhibit (JX 1); TR at 8.

Before filing a claim for compensation, Claimant’s Counsel requested Claimant’s wage records from the custodian handling payrolls for employers at the Port of Jacksonville to determine the last responsible employer liable for Claimant’s hearing loss among the six different port employers Claimant had worked for immediately prior to his July 2019 audiogram. Cl. Brief at 13. Claimant received the wage records on August 5, 2019. They confirmed that on July 2, 2019, the last day Claimant worked prior to his audiogram, he worked (as a line handler) solely for Employer. CXs 2, 19; EX 14; see TR at 36.

Claimant filed his hearing loss claim on August 20, 2019. CX 4. In a letter dated August 22, 2019, the Office of Workers’ Compensation Programs (OWCP) notified Employer of the claim. CX 5; EX 10. On August 28, 2019, Employer controverted the claim and filed its First Report of Injury, acknowledging it first received notice of Claimant’s alleged injury and claim on August 26, 2019. CX 6; EXs 9, 11. On November 18, 2019, Dr. Fenja Mattson, an audiologist, conducted an audiogram at Employer’s request, which showed Claimant had 0% (no ratable) hearing loss. CX 12; EX 1. On November 30, 2020, the case was forwarded to the Office of Administrative Law Judges (OALJ). D&O at 2. On May 26, 2021, Dr. Miers performed Claimant’s third audiogram, which again indicated he has a 13.4% binaural hearing loss. CX 11. On September 2, 2021, the ALJ held a formal hearing via telephone. Id.

The ALJ denied Claimant’s claim for disability benefits. D&O at 12. First, she found Employer did not receive notice of injury within the requisite thirty days of Claimant’s receipt of the July 3, 2019 audiogram as Section 12(a) of the Act requires. 33 U.S.C. §912(a) (2018); D&O at 11. She further found Employer proved it suffered prejudice due to the untimely notice under Section 12(d)(2), 33 U.S.C. §912(d)(2), because, pursuant to 20 C.F.R. §702.441(b), the untimely notice “effectively prohibited” Employer from defending against the presumptive evidence of the amount of Claimant’s hearing loss as indicated by his July 2019 audiogram. D&O at 12. Consequently, she concluded the claim for disability compensation is barred under Section 12 of the Act. Id. Nonetheless, she found Claimant produced sufficient evidence to establish a prima facie case and is entitled to the Section 20(a) presumption linking his hearing loss to his work as a longshoreman, Employer failed to rebut the presumption, and therefore Claimant established a work-related injury by virtue of the presumption. 33 U.S.C. §920(a); D&O at 14-15. Thus, she awarded Claimant medical benefits for his work-related hearing loss under Section 7 of the Act, 33 U.S.C. §907, as medical benefits are never time-barred. Id.

On appeal, Claimant contends the ALJ erred in denying disability benefits for his hearing loss. The Director, OWCP, responds, agreeing with Claimant’s arguments and 3 urging the Benefits Review Board to reverse or vacate the ALJ’s findings and remand the case for further consideration. Employer responds, urging affirmance. Claimant filed a reply brief reiterating his arguments.

Section 12(a) – Timely Notice of Claim

Claimant first contends the ALJ erred in finding his notice of injury was untimely filed.2 Cl. Brief at 12-13. He asserts the time for providing notice of his injury did not start until he received his wage records on August 5, 2019, identifying Employer as his last responsible employer liable for his hearing loss. Id. The Director agrees, asserting “the trigger” is the date Claimant first became aware his hearing loss related to “this particular employer,” citing Smith v. Aerojet- General Shipyard, Inc., 647 F.2d 518, 524 (5th Cir. 1981). Dir. Brief at 7-8. Employer asserts Claimant and the Director have misinterpreted the Smith holding.

Pursuant to Section 12(a) of the Act, an injured employee must give notice of his injury to the district director and the employer:
within thirty days after the date of such injury or death, or thirty days after the employee or beneficiary is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of a relationship between the injury or death and the employment, except that in the case of an occupational disease which does not immediately result in a disability or death, such notice shall be given within one year….

33 U.S.C. §912(a); Strachan Shipping Co. v. Davis, 571 F.2d 968, 969-970 (5th Cir. 1978). Hearing loss is not “an occupational disease which does not immediately result in death or disability.” Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 163 (1993). Therefore, although hearing loss is an occupational disease for purposes of determining the last employer liable for a claimant’s hearing loss, see, e.g., Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 143 (2d Cir.), cert. denied, 350 U.S. 913 (1955), because a hearing loss injury is complete when noise exposure ends, the provisions regarding an occupational disease that does not immediately result in a disability or death under Sections 12 and 13 do not apply. 33 U.S.C. §§912, 913; Jones Stevedoring Co. v. Director, OWCP [Taylor], 133 F.3d 683, 687, 692 (9th Cir. 1997); Vaughn v. Ingalls Shipbuilding, Inc., 28 BRBS 129, 130-132 (1994) (en banc), aff’g on other grounds 26 BRBS 27, 29 (1992). The statutes of limitations for giving notice of injury and filing a work-related hearing loss claim begin to run when the employee receives an audiogram with an accompanying report indicating the existence of a work-related hearing loss. 33 U.S.C. §§908(c)(13)(D), 912(a),

2 The parties stipulated Claimant timely filed his claim. D&O at 2; JX 1; TR at 8.

4
913; Alabama Dry Dock and Shipbuilding Corp. v. Sowell, 933 F.2d 1561, 1563 n.2 (11th Cir. 1991); Argonaut Ins. Co. v. Patterson, 846 F.2d 715, 720 (11th Cir. 1988); Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84, 86-87 (1995); Vaughn, 26 BRBS at 30-31; 20 C.F.R. §702.221(b).

In this case, the ALJ correctly found Claimant received an audiogram and report on July 3, 2019, indicating he had a work-related hearing loss. She also found Employer did not receive Claimant’s notice of injury until August 26, 2019, when it received the notice of the claim from the district director. D&O at 11; see EX 9. Because Employer received notice more than thirty days after Claimant became aware of his work-related injury when he received Dr. Mier’s July 3, 2019 audiogram, the ALJ found Claimant’s Section 12(a) notice of injury was untimely. D&O at 11.

We first reject Claimant’s and the Director’s argument that the Section 12 notice requirement begins to run when a claimant obtains actual knowledge of the employer responsible for the claimant’s hearing loss. Relying on Smith, 647 F.2d at 523-524, 3 Claimant and the Director argue the time to provide notice began to run when Claimant received his wage records on August 5, 2019, and he ascertained the last responsible employer liable for his hearing loss. However, as Employer correctly asserts, Claimant and the Director mischaracterize the Smith holding.

In Smith, the injured employee filed claims in 1971 against his last two employers for disability due to work-related scoliosis. At the hearing in 1973, the claimant moved to add his next most recent employer, Aerojet-General. The ALJ found the claimant’s notice and claim were timely as to Aerojet-General and, ultimately, the case was appealed to the United States Court of Appeals for the Fifth Circuit. See generally Smith, 647 F.2d 518. The Fifth Circuit addressed timeliness under both Section 12 and Section 13 and, under Section 13, held “the one-year limitations period begins to run on a claim against a previous employer once an employee is aware, or should be aware, that liability may, under the last employer doctrine, be asserted against a particular employer.” Id. at 524. While the Fifth Circuit stated the claimant was not required to file claims against all of his prior employers within the allotted filing deadline, it noted he timely filed his claim against his most recent employers. Then he properly filed his claim against Aerojet-General before learning it would be the responsible employer liable for his work-related scoliosis and upon applying the last responsible employer doctrine – which requires the ALJ to address liability of more

3 Decisions of the United States Court of Appeals for the Fifth Circuit, issued prior

to October 1, 1981, as Smith was, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981).

5 recent employers first. Consequently, the court found the claim against Aerojet-General was timely filed. Id.

The Fifth Circuit applied the same rationale to the Section 12 analysis to assess the timeliness of the claimant’s notice of injury in Smith. Smith, 647 F.2d at 524. It noted the “primary purpose” of Section 12 is to give employers and carriers “the opportunity to investigate the claim for compensation.” Id. The court also explained an employer “cannot reasonably expect notice of potential liability” until there are facts demonstrating it is potentially liable. Id. Because Aerojet-General received notice of the claimant’s injury before it was determined that the more recent employers were not liable and that it was potentially liable, the claimant’s notice to Aerojet-General was timely. Therefore, the Fifth Circuit held that if the employee timely filed against a later employer, the Section 12 and Section 13 deadlines do not begin to run against a previous employer until the employee is aware liability could be asserted against that employer under the last employer doctrine.4 Id.

The Board applied the Smith reasoning in Osmundsen v. Todd Pac. Shipyard, 18 BRBS 112 (1986), following a remand from the United States Court of Appeals for the Ninth Circuit for reconsideration under the 1984 Amendments. Osmundsen v. Todd Pac. Shipyard, 755 F.2d 730 (9th Cir. 1985). In Osmundsen, the claimant filed a claim alleging breathing difficulties arose out of his work with Todd Pacific Shipyard. The district director determined Foss Launch was the claimant’s last employer and should be joined to the action. Osmundsen, 18 BRBS at 113. The Board held the claimant logically filed a claim against Todd Pacific Shipyard as it was his “main employer” and, as that claim was timely, it tolled the time for filing a claim against Foss Launch, which he promptly filed upon learning of its potential liability. Osmundsen, 18 BRBS at 115; Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140, 145 (1989); see also Derocher v. Crescent Wharf & Warehouse, 17 BRBS 249, 251 (1985) (timely notice to employer’s agent is imputed to the employer).

Claimant and the Director fail to recognize a factual distinction between this case and Smith. In Smith, the claimant gave timely notice to his more recent employers. In this case, Claimant did not. While Claimant may have been trying to efficiently save time and expenses by identifying the last responsible employer from his wage records, in doing so

4 The Fifth Circuit stated it would be unreasonable if the deadlines begin to run on

claims against all potentially liable employers when the employee discovers his injury is work-related because the employee would have to file claims against all past employers even though the last employer doctrine precludes liability for all but the last responsible employer. Smith, 647 F.2d at 523.

6 he failed to file any timely notice.5 33 U.S.C. §912(a). The Director’s assertion that “the trigger of Section 12’s thirty-day time period in this case is August 5, 2019, when [Claimant] first became aware of the connection between his injury and this particular employer,” Dir. Brief at 7 (emphasis in original), is misplaced. Section 12’s time limitation for giving notice of an injury to the district director and the employer requires awareness of a connection of the injury to the employee’s work; it does not require the claimant’s awareness of the identity of the responsible employer before filing a notice of injury and claim. 33 U.S.C. §912(a). Indeed, which employer is responsible may be a disputed issue requiring a legal determination.

Pursuant to Section 8(c)(13)(D) and Section 12, the ALJ correctly stated Claimant’s time for filing a notice of his hearing loss began on July 3, 2019, when he received a copy of his audiogram and Dr. Miers told him he had 13.4% binaural hearing loss attributable to his work. 33 U.S.C. §§908(c)(13)(D), 912(a); Bridier, 29 BRBS at 86-87; D&O at 11; CX 1; EX 12. She further correctly noted Claimant filed his claim for compensation (Form LS-203), which also constituted his notice of injury in this case, on August 20, 2019, more than thirty days after receiving the audiogram report. D&O at 11; CX 4. In addition, she accurately stated the district director sent a letter (Form LS-215a) notifying Employer of the filing of the claim on August 22, 2019, and Employer represented on its Form LS-202 that it first became aware of the injury on August 26, 2019. D&O at 11; CXs 5, 6; EXs 10,

11. None of these facts are disputed by the parties. Because it is supported by substantial
    evidence and pre-identifying the last responsible employer is not required for filing a claim against an employer,6 we affirm the ALJ’s finding that Claimant did not provide Employer timely notice of his alleged hearing loss injury within thirty days of receiving his audiogram as the Act and regulations mandate.7 33 U.S.C. §§908(c)(13)(D), 912(a);

    5 Unlike the claimant in Smith who would not have known which of his employers

exposed him to silica while sandblasting, Claimant in this case worked for only one employer on the day before his audiogram. Smith, 647 F.2d at 520-521; CX 2; TR at 36.
6 As timely filing against one employer tolls the time for filing against another, the

cases make clear there need only be a reasonable belief of an employer’s liability. It is unnecessary for a claimant to carry the legal burden of establishing, or trying to establish, which employer ultimately will be held liable prior to filing the notice or claim. Smith, 647 F.2d at 524; Osmundsen, 18 BRBS at 113.
7 The Director contends the ALJ erred by not applying the Section 20(b) presumption, 33 U.S.C. §920(b), as she made no mention of that provision when assessing the timeliness of the notice of injury. Dir.’s Brief at 8. Section 20(b) of the Act provides a claimant with a presumption that his notice of injury and claim were timely filed. 33 U.S.C. §920(b). In this case, we agree with the Director’s position that the ALJ did not 7
Sowell, 933 F.2d at 1563 n.2; Patterson, 846 F.2d at 720; Bridier, 29 BRBS at 86-87; Vaughn, 26 BRBS at 29; 20 C.F.R. §702.441(b); D&O at 11.

Section 12(d)(2) –Prejudice

Having rejected Claimant’s and the Director’s assertions that Claimant timely filed his notice of injury, we now address their argument that the ALJ erred in finding Employer was prejudiced by the late notice. Section 12(d) provides a claimant possible reprieve in the event he did not timely file his notice of injury. In pertinent part, it states:

Failure to give such notice shall not bar any claim under this chapter (1) if the employer (or his agent or agents or other responsible official or officials designated by the employer pursuant subsection (c) of this section) or the carrier had knowledge of the injury or death, (2) the [district director] determines that the employer or carrier has not been prejudiced by failure to give such notice….

33 U.S.C. §912(d). To meet its burden of establishing prejudice, an employer must demonstrate with substantial evidence that because of the claimant’s untimely notice it was “unable to effectively investigate the injury to determine the nature and extent of the illness or to provide medical services.” Vinson v. Resolve Marine Services, 37 BRBS 103, 106 (2003); see 33 U.S.C. §912(d); 20 C.F.R. §702.216. However, a mere “conclusory allegation of prejudice or of an inability to investigate the claim when it is fresh is insufficient to meet employer’s burden of proof.” Vinson, 37 BRBS at 106; see Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 649 (9th Cir. 2010) (the employer’s “bare assumption that an immediate medical exam might have provided more or different information” was “speculative and conjectural” and “insufficient [to show prejudice] as a matter of law”).8

In this case, the ALJ found Employer met its burden and established it was prejudiced because it was unable to timely “rebut” with an audiogram of its own the

discuss or apply the Section 20(b) presumption. However, considering the undisputed evidence of record, see CX 4, 6, and Claimant’s concession that he gave notice more than thirty days after he received the audiogram, Cl. Brief at 5, the ALJ’s error is harmless; she correctly determined Claimant did not file a timely notice of injury.
8 The employer in Ogawa had access to the claimant and his medical records after

he had a stroke and for four years after that. The court held the employer had ample opportunity to investigate the claim and affirmed the ALJ’s rejection of the employer’s “bare assumption” argument. Ogawa, 608 F.3d at 649.

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“presumptive” evidence of the amount of Claimant’s hearing loss indicated by the July 3, 2019 audiogram. D&O at 12. Specifically, the ALJ stated an employer can challenge the presumptive nature of an audiogram by obtaining a contrary audiogram within thirty days. D&O at 11-12; see 20 C.F.R. §702.441(b)(3). Because Claimant failed to timely notify Employer of his hearing loss and his noise exposure continued, the ALJ found Employer was effectively prohibited from defending against the July 3, 2019 audiogram by obtaining a contrary audiogram within thirty days. Id. She explained that the late notice of Claimant’s hearing loss “essentially obviated one of Employer’s possible defenses to a hearing loss claim, resulting in a very specific prejudice.” Id. Employer’s receipt of the notice approximately fifty-four days after Claimant was first aware of his hearing loss injury persuaded the ALJ to find Employer was prejudiced by that delay. D&O at 11; see CXs 5, 6; EXs 9-11.

The Director contends the ALJ’s finding “makes no sense whatsoever.” Dir. Brief at 11. Specifically, Claimant and the Director argue Employer was not prejudiced by the late notice of Claimant’s hearing loss injury because it had every opportunity to investigate the claim and submit its own evidence – which it did. Cl. Brief at 4-6; Dir. Brief at 9-12. They assert the parties’ evidentiary standing was not adversely affected by the timing of the notice, noting Claimant’s medical condition remained the same between the July 2019 audiogram and the notice to Employer, and Employer was able to investigate the claim and mount a defense based on Dr. Mattson’s audiogram, which showed a 0% ratable hearing impairment. Id.; see CX 12; EX 1. As Claimant and the Director assert, the ALJ’s finding of prejudice cannot be affirmed.

As stated above, to show it suffered prejudice due to the late filing, an employer must put forth substantial evidence of its inability to effectively investigate the injury to determine the nature and extent of the illness or provide medical services, or otherwise adequately defend against the claim. See 33 U.S.C. §912(d); Vinson v. Resolve Marine Services, 37 BRBS 103, 106 (2003); 20 C.F.R. §702.216. Sections 8(c)(13)(C) and 702.441(b) provide only that, if specific criteria are met, an audiogram may be presumptive evidence of the amount of a claimant’s hearing loss. 33 U.S.C. §908(c)(13)(C); 20 C.F.R.
§702.441(b). To be considered “presumptive evidence,” an audiogram must have been administered by a professional trained and certified to conduct audiometric testing, the employee must have received the audiogram with a report setting out the standards and the reliability of the testing within thirty days of the testing, and there must have been no equally probative contrary audiogram made at the “same time.” 33 U.S.C. §908(c)(13)(C); 20 C.F.R. §702.441(b) (subsection (b)(3) defines “same time” as within thirty days from when the employee continues to be exposed to noise).

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 While the July 2019 audiogram may qualify as “presumptive evidence” in this case, and the ALJ seems to have summarily concluded so,9 it is presumptive only of the amount of Claimant’s hearing loss at that time.

In narrowing her focus on prejudice to Employer’s ability to file a contrary audiogram within thirty days, the ALJ did not consider whether Employer was precluded from being able to investigate the claim or provide medical services for the injury, or otherwise adequately defend against the claim. Vinson, 37 BRBS at 106. Although Employer was not given the opportunity to submit an audiogram within thirty days of the July 3 audiogram, it did take other actions and was able to submit its own evidence. On the same date it filed its notice of controversion, August 28, 2019, Employer also submitted an LS-208 Form (Notice of Payments) indicating it paid Claimant $2,656.42 for a binaural hearing loss from July 3, 2019, to July 16, 2019. CX 7. Additionally, in November 2019, it had Dr. Mattson evaluate Claimant’s hearing, and he concluded there was no hearing loss.10 EX 1.

If an audiogram constitutes persuasive evidence for the ALJ to consider, the Board has recognized it is essentially immaterial whether it is given “presumptive” effect under 33 U.S.C. §8(c)(13)(C) and 20 C.F.R. §702.441. Instead, the question for establishing the extent of hearing loss is whether there is sufficient probative evidence, applying the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), and the procedures that Section 702.441(d) sets forth to establish the extent of a claimant’s hearing loss at a particular point in time. R.H. v. Bath Iron Works Corp., 42 BRBS 6, 8 (2008). The ALJ failed to cite to specific evidence that demonstrated Employer was “unable to investigate some aspect of the claim.” Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233, 240 (1990); see ITO Corp. v. Director, OWCP [Aples], 883 F.2d 422, 424 (5th Cir. 1989) (finding the employer’s assertion that it had no opportunity to investigate the claim while it was fresh unpersuasive as it lacked evidentiary support); Bustillo v. Southwest Marine, Inc., 33 BRBS 15, 16-17 (1999) (rejecting employer’s argument that it was prejudiced by its inability to supervise the claimant’s medical care because evidence did not support its assertion that such supervision would have altered the course of the medical treatment). Based on the audiograms of record, Claimant’s hearing loss did not worsen between Dr. Mier’s initial July 2019 audiogram (a 13.4% impairment rating) and Dr. Mattson’s November 2019 audiogram (a 0% loss). Consequently, the lack of immediate medical care provided by Employer may

9 The ALJ did not reach this question or make any findings on the matter.

10 Indeed, it is possible that the audiogram conducted by Dr. Mattson could constitute presumptive evidence, in which case the ALJ would have to resolve the conflict. We note there also is a third audiogram that the ALJ would need to consider.

10 be irrelevant. CXs 1, 12; EXs 1,12. There is evidence, based on the appropriate factors, on which a reasonable factfinder could base a finding of no prejudice by finding Employer was able to have Claimant examined and mount its own defense – despite Claimant’s late notice of injury. See Taylor, 133 F.3d at 690-691 (affirming the ALJ’s finding that Employer was not prejudiced by the claimant’s late notice because it still had ample time to obtain discovery and conduct sound surveys, claimant’s hearing loss had not worsened since his first audiogram, and his medical condition did not change in a way that prevented Employer from ascertaining the extent of the hearing loss); see also U.S. Indus./Fed. Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 613-614 n.7 (1982) (emphasizing the broad nature of the procedural requirements of workers’ compensation systems and under Section 12 of the Act).

For these reasons, the ALJ erred in finding Employer was prejudiced under Section 12(d)(2) because it was not given the opportunity to obtain its own audiogram within thirty days pursuant to Section 702.441(b) to rebut Claimant’s initial and purportedly presumptive audiogram. Because the ALJ failed to adequately explain her findings and conclusions of law, we vacate her finding that Employer was prejudiced by Claimant’s untimely notice and her denial of benefits.

On remand, the ALJ must consider the proper factors to assess whether Claimant’s late notice of his alleged hearing loss injury prejudiced Employer. Specifically, Employer bears the burden of demonstrating it was actually prejudiced by Claimant’s failure to timely file his notice; thus, the ALJ must determine whether Employer was precluded from investigating the nature and extent of Claimant’s alleged hearing loss injury or from providing Claimant with medical services to lessen the harm, or otherwise adequately defend against the claim. Taylor, 133 F.3d at 690-691;11 Vinson, 37 BRBS at 106; Bivens, 23 BRBS at 240. If she finds Employer was not prejudiced, she must address the extent of Claimant’s work-related hearing loss, if any, and award disability benefits in accordance with Section 8(c)(13) of the Act, 33 U.S.C. §908(c)(13).12 See generally Brown v. Bath

11 In Taylor, the Ninth Circuit affirmed the ALJ’s finding that the employer was not

prejudiced by the claimant’s late notice because it had ample time to obtain discovery and conduct sound surveys, the claimant’s hearing loss had not worsened since his first audiogram, and his medical condition did not change in a way that prevented the employer from ascertaining the extent of his hearing loss. Taylor, 133 F.3d at 690-691.
12 As no party challenges the ALJ’s finding that Claimant sustained a work-related

hearing loss, we affirm her award of medical benefits. Scalio v. Ceres Marine Terminals, Inc., 41 BRBS 57, 58 (2007). In addressing the extent of Claimant’s hearing loss, the ALJ must consider the audiograms of record. Audiograms that do not meet the requirements 11
Iron Works Corp., 22 BRBS 384 (1989); Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).

Accordingly, we vacate the ALJ’s denial of disability benefits and remand this case for further consideration consistent with this opinion. In all other respects, we affirm the ALJ’s Decision and Order Denying Compensation Benefits and Awarding Medical Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

for “presumptive evidence” of a hearing loss under Section 8(c)(13)(C) of the Act and 20 C.F.R. §702.441 of the regulations nonetheless may constitute probative evidence which an ALJ may credit in determining the extent of hearing loss.
33 U.S.C.
§908(c)(13)(C); R.H. [Harris] v. Bath Iron Works Corp., 42 BRBS 6, 8 (2008); see also Steevens v. Umpqua River Navigation, 35 BRBS 129, 132 (2001) (in the absence of credible evidence regarding the extent of hearing loss at the end of covered employment, an ALJ may rely on the most credible evidence of record in determining the extent of a claimant’s work-related hearing loss); Labbe v. Bath Iron Works Corp., 24 BRBS 159, 161-162 (1991) (same); Dubar v. Bath Iron Works Corp., 25 BRBS 5, 8 (1991); 20 C.F.R.
§702.441(d).

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