Eagle Marine Services v. Richard McNish ( 2018 )

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NOT FOR PUBLICATION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.
3