"When the evidence is evenly balanced, the benefits claimant must lose."

In a published decision, the United States Court of Appeals for the Fourth Circuit discussed burdens of proof and the "true doubt" rule with respect to Longshore and Harbor Workers' Compensation Act ("LHWCA") claims. In Ceres Marine Terminals, Inc., v. Green, the court was presented with a hearing loss claim that had conflicting audiological reports. Claimant's audiologist stated that Claimant had a 3.75% binaural hearing loss, but Employer's audiologist determined that there was no hearing loss. Following a formal hearing, the Administrative Law Judge ("ALJ") determined that Claimant had the burden of proof, but that the ALJ was entitled to average the two audiograms to determine the amount of hearing loss. Significantly, the ALJ determined that both audiograms were entitled to "equal probative value," and this finding was not challenged on appeal. Seventeen years ago, the Supreme Court decided Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). There, the Court reviewed whether the "true doubt" rule, which "shifts the burden of persuasion to the party opposing a benefits claim and grants benefits to a claimant if the evidence is equally balanced" complied with the Administrative Procedure Act ("APA"). 5 U.S.C. § 556. It did not. The APA provides that the proponent of a rule has the burden of proof. As such, "when the evidence is evenly balanced, the benefits claimant must lose." Greenwich Collieries, 512 U.S. at 281. Here, Claimant failed to meet his burden of proof to establish disability. Even if the Fourth Circuit accepted Claimant's arguments, and confirmed the hearing loss "was in equipoise," the Supreme Court made it "abundantly clear" that "when evidence is evenly balanced, the benefits claimant must lose." Ceres Marine Terminals, Inc. v. Green, – F.3d –, 2011 WL 3891891 (4th Cir. 2011).

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