Fenske v. Service Emp. Int'l, No. 14-71512 (9th Cir. 2016)
Annotate this CasePetitioner seeks review of the Board's decision holding that petitioner could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901–50. In this case, petitioner seeks concurrent compensation for a “scheduled” injury (hearing loss) under 33 U.S.C. 908(c)(13) and total disability caused by his back injury. Stevedoring Servs. of Am. v. Price allows concurrent awards for certain time-delayed injuries. The court held that, where the only evidence of hearing loss is a post-retirement audiogram, the Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs rule applies when determining the timing of disabilities under Price. Here, petitioner's last day of exposure to excessive noise was the same day as his back injury and Price does not apply. Under wage-compensation principles, concurrent payments for total disability and scheduled permanent partial disability are generally unavailable. Therefore, the Price exception does not apply because plaintiff's hearing loss did not precede his back injury. The court rejected petitioner's claim that he should at least be provided a decreased award capped at two-thirds of his wage under ITO Corp. of Baltimore v. Green. Accordingly, the court denied the petition for review.
Court Description: Benefits Review Board. The panel denied a petition for review of a decision of the Benefits Review Board holding that the petitioner, a United States government contractor in Iraq who suffered severe injuries caused by a suicide bomber, could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers’ Compensation Act. Petitioner sought concurrent compensation for a “scheduled” injury (hearing loss) under 33 U.S.C § 908(c)(13) and total disability caused by his back injury. Petitioner alleged that he was exposed to excessive noise throughout his employment in Iraq. The panel held that the holding in Stevedoring Servs. Of Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (as amended) (awarding concurrent payments because the later total disability award was based on a wage that had already been decreased by the earlier partial disability) did not apply because a prerequisite for applying the Price theory is that the partial disability preceded the total disability, and petitioner’s hearing loss did not precede his back injury. The panel also held that in a case where the only evidence of hearing loss was a post-retirement audiogram, the rule in Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs, 506 U.S. 153, 165 (1993) (discussing when a FENSKE V. SERVICE EMPLOYEES INT’L 3 hearing loss occurs and when it is complete for calculating benefits), applied when determining the timing of disability under Price, but Price did not apply in this case because petitioner’s last day of exposure to excessive noise was the same day as his back injury. Finally, the panel declined to provide a decreased concurrent award capped at two-thirds of petitioner’s wage under ITO Corp. of Baltimore v. Green, 185 F.3d 239 (4th Cir. 1999).
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