ALJ KRANZ (NORFOLK) FINDS LAST PAYROLL EMPLOYER RESPONSIBLE FOR HEARING LOSS CLAIM IN ABSENCE OF ANY OTHER INFORMATION

In this case, three potentially responsible operators remain: Lavino, Southeast, and
Slafkosky. There is no exculpatory evidence in the record with respect to Southeast. It is clear
that Southeast has not exculpated itself from liability. There is credible evidence that Slafkosky,
a priest who lived only in Pennsylvania and Florida, was never actually an employer or tied to
the longshore industry. However, Social Security records show Claimant earned income from
Southeast and Slafkosky in 1989. (CX I, G) The evidence regarding Slafkosky is conflicting and
likely insufficient to meet a burden of substantial evidence. However, in this case the
exculpation of Southeast and Slafkosky are moot because there is no evidence that either was the
last employer.
Noise-induced hearing loss has traditionally been treated under the Act as an
occupational disease. Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 144 (2d Cir.), cert. denied,
350 U.S. 913 (1955). In hearing loss cases, the Board has imposed liability on “the last
employer to expose claimant to injurious stimuli prior to the determinative... audiogram and the
filing of the claim.” Good v. Ingalls Shipbuilding, Inc., 26 BRBS 159, 163-64 (1992); Mauk v.
Northwest Marine Iron Works, 25 BRBS 118, 125 (1991); Cox v. Brady-Hamilton Stevedore
Co., 25 BRBS 203, 208 (1991). “In occupational disease cases, the last covered employer is
liable for the totality of claimant's disability from the occupational disease, regardless of whether
it was aggravated by subsequent non-covered employment.” Labbe v. Bath Iron Works Corp., 24
BRBS 159, 162 (1991)(citing to Johnson v. Ingalls Shipbuilding Div., 22 BRBS 160 (1989)); see
Bath Iron Works v. Brown, 194 F.3d 1 (1st Cir. 1999).
There is no evidence as to the final dates Claimant worked for Southeast or Slafkosky.
However, Claimant’s testimony, the check stub admitted into evidence, the Summary of
Application for Retirement Pension, and the pension verification letter from the Fund all support
the assertion that Claimant worked for Lavino in 1989. Further, Claimant’s testimony, the
Summary of Application, and the Fund letter all provide a last date worked as September 12,
1989, and state that Claimant worked for Lavino on this date. Claimant’s assertion that this was
his last day of work is supported by evidence that he had a disabling stroke two days later and
has not worked since. No party argued that Southeast or Slafkosky are the last employer; nor has
any party has argued that Lavino is not the last employer.
Lavino’s sole entry in the record is its notice of controversion, which relies on
documentation from Florida regarding a business that dissolved in 1980, which cannot be
Claimant’s employer as he has a paycheck stub dated August 1989, nine years later. There is no
clear relevance of the website printout from Virginia, as this case deals only with the port in
Wilmington, North Carolina. Further, the Virginia document shows a company purged in 1995,
well after Claimant’s last day worked. The printout from North Carolina shows only that at
some unspecified date, a company called Lavino Shipping Company had a status of “office

discontinued.” I do not find these four pages persuasive evidence that Lavino was not
Claimant’s last employer.
When no employer presents persuasive exculpatory evidence, as none has here, the Board
has held the purposes of the Act would best be served by assigning liability to the
later employer, consistent with case law defining responsible employer in an
occupational disease context. See, e.g., General Ship Service v. Director, OWCP
[Barnes], 938 F.2d 960, 25 BRBS 22(CRT) (9th Cir. 1991).
Buchanan v. Int’l Transp. Services, 33 BRBS 32 (1999), aff’d mem. sub nom. Int’l Transp.
Services v. Kaiser Permanente Hospital, Inc., 7 Fed. Appx. 547 (9th Cir. Feb. 26, 2001).
I find that Claimant’s testimony, the check stub, the Summary of Application, and Fund
letter are the best evidence of record on the issue of which employer last employed Claimant. I
find that Lavino was the last maritime employer, and, following Buchanan, I assign liability to
Lavino.

Batts vs. Lavino Shipping Company