Eagle Marine Services v. Richard McNish

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2018
• Docket: 16-71165
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EAGLE MARINE SERVICES, No. 16-71165

Petitioner, BRB No. 15-0365

v. MEMORANDUM* RICHARD MCNISH; SSA MARINE TERMINALS, LLC; HOMEPORT INSURANCE CO.; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAM,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted March 6, 2018** Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENCIVENGO,*** District Judge.

Eagle Marine Services (Eagle Marine) petitions for review of the decision of

the Benefits Review Board (BRB) affirming its liability as the responsible

employer for Claimant Richard McNish’s (McNish) noise-induced hearing loss

under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-

950. “We review the [BRB’s] decisions for errors of law and adherence to the

substantial evidence standard.” Metro. Stevedore Co. v. Crescent Wharf &

Warehouse Co., 339 F.3d 1102, 1105 (9th Cir. 2003) (citation omitted). The BRB

must accept the findings of the administrative law judge (ALJ) “unless they are

contrary to law, irrational, or unsupported by substantial evidence.” Id. (citation

omitted).

Substantial evidence supports the BRB’s determination that Eagle Marine

was the responsible employer. The ALJ engaged in a comprehensive review of the

audiometric evidence before concluding that the October audiogram was

determinative of McNish’s disability because it first measured the onset of

McNish’s disability. See Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165

*** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. 2 (9th Cir. 2010) (“The substantial evidence test for upholding factual findings is

extremely deferential to the factfinder. . . .”) (citation and internal quotation marks

omitted). Pursuant to the last employer rule, the ALJ properly assigned liability to

Eagle Marine, as it was the last employer who, by injurious exposure, could have

contributed causally to the claimant’s disability evidenced on the audiogram that

formed the basis of the hearing loss claim. See Port of Portland v. Dir., Office of

Workers Comp. Programs, 932 F.2d 836, 840 (9th Cir. 1991).

PETITION DENIED.