BRB No. 93-0947
JOHN WESTERMAN )
)
Claimant-Petitioner )
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v. )
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OCEAN REPAIR SERVICE ) DATE ISSUED: 07/30/1996
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and )
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STATE INSURANCE FUND )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of Robert J. Feldman, Administrative
Law Judge, United States Department of Labor.
Philip J. Rooney (Israel, Adler, Ronca & Gucciardo), New York, New York,
for claimant.
Richard A. Cooper (Fischer Brothers), New York, New York, for
employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (91-LHC-137) of Administrative Law
Judge Robert J. Feldman rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). We must affirm the findings of fact and conclusions of
law of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
On October 28, 1985, claimant, a ship rigger, sustained an injury to his left
knee while working for employer. Employer voluntarily paid claimant compensation
for this knee injury. Claimant stopped working on April 9, 1986. On November 1,
1988, claimant filed a claim for an occupational hearing loss. In his Decision and
Order, the administrative law judge denied claimant compensation for his hearing
loss because he was receiving total disability compensation for his knee injury. On appeal, claimant challenges the
administrative law judge's denial of benefits for his hearing loss. Employer
responds in support of the administrative law judge's denial of additional
benefits.
Claimant contends that the administrative law judge erred in not awarding
benefits for his hearing loss. The administrative law judge properly denied
claimant compensation for his scheduled hearing loss when claimant was receiving
temporary total and permanent total disability benefits for his 1985 knee injury,
as an award of total disability cannot run concurrently with a scheduled award.
Korineck v. General Dynamics Corp., 835 F.2d 42, 20 BRBS 63 (CRT)(2d Cir.
1987); Rupert v. Todd Shipyards Corp., 239 F.2d 273 (9th Cir. 1956);
Carver v. Ingalls Shipbuilding, Inc., 24 BRBS 243 (1991); Tisdale v.
Owens-Corning Fiber Glass Co., 13 BRBS 167 (1981), aff'd mem. sub nom.
Tisdale v. Director, OWCP, 698 F.2d 1233 (9th Cir. 1982), cert. denied,
462 U.S. 1106 (1983); James v. Bethlehem Steel Corp., 5 BRBS 707 (1977).
There is evidence of record, however, which the administrative law judge did
not address, that claimant may have received partial disability benefits for his
knee injury, and if total disability lapsed, claimant is entitled to receive his
scheduled award during this time. See Turney v. Bethlehem Steel
Corp., 17 BRBS 232, 235 (1985). The record reflects that claimant was
receiving temporary partial disability benefits from July 6, 1988 through May 9,
1989. Emp. Ex. 10; Emp. Post-Hearing Br. at 2 n. 2. In light of the fact that the
administrative law judge denied compensation for claimant's hearing loss claim for
periods when claimant may have been receiving partial disability benefits for his
knee injury, we vacate the administrative law judge's denial of benefits for the
hearing loss. On remand, the administrative law judge must initially determine
which type of compensation claimant received for specific periods. If the
administrative law judge finds that claimant in fact received partial disability
benefits for his 1985 knee injury after claimant's date of last exposure to
injurious noise, the administrative law judge must award compensation for
claimant's hearing loss for these periods based on the parties' stipulation.[1] See generally Bath Iron Works Corp. v.
Director, OWCP, U.S , 113 S.Ct. 692, 26 BRBS 151 (CRT) (1993); Moore v. Ingalls Shipbuilding, Inc., 27 BRBS 76 (1993);
Turney, 17 BRBS at 235.
Accordingly, the administrative law judge's Decision and Order denying
benefits is vacated, and this case is remanded to the administrative law judge for
further consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)As stipulated by the parties, the schedule award would last for
18.76 weeks based on a 9.38 percent binaural hearing loss. Tr. at 6; 33 U.S.C.
§908(c)(13)(B). Despite claimant's attempt to establish that Section 8(c) of
the Act, 33 U.S.C. §908(c), provides for a schedule award in addition to
compensation for temporary total disability, the Board has not interpreted the
statute in that manner. James, 5 BRBS at 707. Cf. Henry v. George
Hyman Construction Co., 749 F.2d 65, 17 BRBS 39 (CRT)(D.C. Cir. 1984), where
the court allowed an overlapping scheduled award and award of temporary total
disability benefits arising out of the same work accident to a deceased claimant.
In Henry, the court stated the Board's holding in James was arguably
incorrect but noted that James involved a living claimant who could receive
his scheduled award once the temporary total disability lapsed. See also
Turney, 17 BRBS at 235 n. 4. We need not address claimant's reliance on
Henry in this case because the instant case apparently involves a lapse of
total disability to partial disability.
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NOTE: This is an UNPUBLISHED LHCA Document.
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