Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic 8.13 - Hearing Loss
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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Topic 8.13.1 to--Section 8(c)(13) Introduction and General Concepts
Avondale Industries v. Craig , (Unpublished)( 5th Cir. No. 02-60470) ( 5th Cir. Dec. 1, 2003); 2003 U.S. App. LEXIS 24187. [ED. Note: However, since the Craig case has been removed on Dec. 29, 2003 (see below) from the trio of consolidated cases that the Fifth Circuit addressed in this litigation, the holdings noted below should be cited as Avondale Indus., Inc. v. Alario, 355 F.3d 848)( 5th Cir. Dec. 29, 2003). ]
For attorney's fee purposes, a hearing loss case is to be treated like any other case. There is not requirement that there be presumptive evidence before a hearing loss claim can be considered filed under Section 28(a). "Section 28(a) makes it clear that the operative date for avoiding the potential shifting of attorney's fees is thirty days after the employer receives formal notice of the claim' section 28(a) makes no mention of the term �evidence,' let alone require that certain evidence be provided when a claim is filed." "Although section 8(c)(13)(C) states that an audiogram accompanied by an interpretive report is �presumptive evidence of the amount of hearing loss,' the Act nowhere states that such evidence is required for a claim to be considered filed for the purposes of section 28(a)." Thus, it is significant that the Fifth Circuit is holding that a hearing loss claim can be made without a presumptive audiogram.
[ED. NOTE: On December 29, 2003, the Fifth Circuit issued Avondale Indus., Inc. v. Alario, 355 F.3d 848 ( 5th Cir. Dec. 29, 2003). In a footnote, the Fifth Circuit noted that Avondale also challenged the Board's decision awarding attorney's fees to Eugene Craig (see above). The Fifth Circuit notes that the instant opinion was originally issued referencing Craig's case along with the cases of Alario and Howard. "But the BRB's decision of these three consolidated cases actually remanded Craig's case to the district director for further proceedings. Thus, there was no final order of the Board with respect to Craig, and Craig was dismissed from this appeal on September 18, 2002. The Director of the office of Workers' compensation Programs filed a motion to amend the judgment requesting that the original opinion be revised to remove the references to Craig's case. The Director's motion is granted, and this opinion has been revised to reflect that only the cases of Alario and Howard are before this court." ]
Topic 8.13.1 Hearing Loss�General Concepts�Determining the Extent of Loss
Giacalone v. Matson Terminals, Inc. , 37 BRBS 87 (2003).
In this consolidated hearing loss claim involving two employers, with two separate audiograms, the Board applied the reasoning of the Ninth Circuit in Stevedoring Services of America v. director, OWCP [Benjamin] , 297 F.3d 797, 36 BRBS 28(CRT) ( 9th Cir. 2002). The Board found that Benjamin does not disturb the basic principles of determining Claimant's entitlement under the aggravation rule, which provides that the employer at the time of the aggravation injury is liable for the entire disability at the average weekly wage (AWW) in effect at the time of the aggravating injury. Thus, each claim against an employer for consecutive hearing loss must be adjudicated. Where a prior employer is liable for a portion of the claimant's hearing loss, the credit doctrine works with the aggravation rule to provided the most recent employer with a credit for amounts paid by the prior employer for the same injury.
Here, Claimant filed a claim against Matson Terminals for a binaural hearing loss after receipt of an audiogram in 1995. That claim had not been resolved by the time Claimant filed his second claim against Marine Terminals for an increased hearing loss. The Board found that Matson was liable for the binaural hearing loss at Claimant's 1995 AWW as a matter of law, as well as for medical treatment from that date until the date of the 1998 audiogram. Marine Terminals is liable for Claimant's binaural hearing impairment based on claimant's AWW at the time of the 1998 audiogram, and is entitled to a dollar for dollar credit for the amount Claimant receives for his prior hearing loss injuries. Additionally, the Board found that the most recent responsible employer is liable for a claimant's continuing medical treatment.
Topic 8.13.1 Hearing Loss-Introduction and General Concepts
Jeschke v. Jones Stevedoring Co ., 36 BRBS 35 (2002).
Here the claimant was prescribed binaural analog hearing aids, and began wearing completely-in-the-canal hearing aids to reduce wind noise. Subsequently he filed a hearing-loss claim against two employers and entered into a Section 8(i)settlement with one who accepted responsibility and agreed to be responsible for all future medical expenses. Sometime after, the district director issued a compensation order approving the settlement which she stated effected a final disposition of the claim. After that, the claimant obtained state-of-the-art digital hearing aids. The Board found that the ALJ was within reason in finding that the responsible employer who had settled this claim was liable for the new hearing aids as the settlement had indicated it would remain liable for all future reasonable and necessary medical expenses for treatment of the claimant's work-related hearing loss. The ALJ had determined that this was a work-related hearing loss and that this employer had accepted liability in the settlement agreement as the responsible party under the LHWCA.
Topic 8.13.1 Hearing Loss-Introduction and General Concepts
Weikert v. Universal Maritime Service Corp ., 36 BRBS 38 (2002).
The requirements of Section 8 of the LHWCA do not apply to a claim for medical benefits under Section 7 of the LHWCA. The Board held that a claimant need not have a minimum level of hearing loss (i.e., a ratable loss pursuant to the AMA Guides) to be entitled to medical benefits.
The Board also reject the employer's assertion that this case was controlled by Metro-North Commuter Railroad v. Buckley , 521 U.S. 424 (1997). Buckley involved a railroad employee who had been exposed to asbestos and sought to recover under the Federal Employers' Liability Act, 45 U.S.C. � 51 et seq. (FELA), medical monitoring costs he may incur as a result of his exposure. Because Buckley had not been diagnosed with any asbestos-related disease and was not experiencing any symptoms, the Supreme Court held that he was not entitled to medical monitoring. Besides coming under another act, the Board specifically noted that in the instant longshore case, the ALJ specifically found that the claimant has trouble hearing and distinguishing sounds and, thus, has symptoms of hearing loss.
Next the Board addressed the ALJ's delegation to the district director the issue as to whether hearing aids were a necessity in this matter. While noting that there are several instances where the district director has authority over certain medical matters, the Board stated that it has "declined to interpret the provisions of Section 7(b) of the [LHWCA], or Section 702.407 of the regulations,..., in such a manner as to exclude the [ALJ] from the administrative process when questions of fact are raised." Thus, the Board found, "the issue of whether treatment is necessary and reasonable, where the parties disagree, is a question of fact for the [ALJ]."
The Board also stated that, "Contrary to employer's contention, the absence of a prescription for hearing aids from a medical doctor, as required by Virginia law, does not make claimant ineligible for hearing aids, or medical benefits, under the [LHWCA]. While claimant must comply with specific provisions under Virginia law before he is able to obtain hearing aids, claimant's compliance or non-compliance with state requirements does not affect the authority of the [ALJ] to adjudicate claimant's entitlement to medical benefits under the [LHWCA]."
Topic 8.13.4 Hearing Loss-Responsible Employer and Injurious Stimuli
Jeschke v. Jones Stevedoring Co ., 36 BRBS 35 (2002).
Here the claimant was prescribed binaural analog hearing aids, and began wearing completely-in-the-canal hearing aids to reduce wind noise. Subsequently he filed a hearing-loss claim against two employers and entered into a Section 8(i) settlement with one who accepted responsibility and agreed to be responsible for all future medical expenses. Sometime after, the district director issued a compensation order approving the settlement which she stated effected a final disposition of the claim. After that, the claimant obtained state-of-the-art digital hearing aids. The Board found that the ALJ was within reason in finding that the responsible employer who had settled this claim was liable for the new hearing aids as the settlement had indicated it would remain liable for all future reasonable and necessary medical expenses for treatment of the claimant's work-related hearing loss. The ALJ had determined that this was a work-related hearing loss and that this employer had accepted liability in the settlement agreement as the responsible party under the LHWCA.
Topic 8.13.5 Hearing Loss�Sections 8(c)(13) and 8(f)(1)
Nival v. Electric Boat Corp ., (Unreported)(Case Nos. 2002-LHC-362; 2002-LHC-1720) (July 25, 2002).
This is a Section 8(f) hearing loss claim. At issue is who receives the credit (Employer or Special Fund) for a previously paid compensation award. Previously the claimant was awarded benefits for a 53.75 percent hearing loss. As the employee demonstrated a pre-existing hearing loss of 42.50 percent, the employer was awarded the limiting provision of Section 8(f) and was only responsible for 11.25 percent of the hearing loss. The claimant was retained in employment and continued to be exposed to loud noises. In the present case, the parties stipulated that the claimant presently suffers from a 68.92 percent binaural hearing loss. The ALJ found that the employer was responsible to the claimant for his 68.92 percent hearing loss to the extent of 15.17 (68.92 - 53.75). As noted, the sole remaining issue was whether the Employer or the Special Fund is entitled to take a credit for all or a portion of the money that the claimant had already received as a result of the prior compensation award. Section 8(c)(13)(B).
The jurisprudence notes both an "Employer-First" rule, Krotis v. General Dynamics Corp ., 22 BRBS 128 (1989), aff'd sub nom . Director, OWCP v. General Dynamics Corp ., 900 F.2d 506 ( 2d Cir. 1990), and a "Fund-First" rule, Blanchette v. OWCP, United States Dept. of Labor , 998 F. 2d 109, 27 BRBS (CRT) ( 2d Cir. 1993). Under both rules the credit offsets the compensation due to the claimant for the second injury so that a double recovery does not occur. These cases, and others, note varying fact situations (i.e. voluntary payments; no pre-existing, pre-employment hearing loss).
While noting that Krotis applied an "Employer-First" rule, the ALJ judged it inequitable to apply Krotis since the employer herein "clearly has caused most of Claimant's current hearing loss during his maritime employment" and "would escape any liability herein." Agreeing with the District Director, the ALJ found Blanchette (Congress intended the employer to compensate the disabled employee for the entire second (work-related) injury.) to be controlling. Thus, the ALJ concluded that the "Special Fund-First" rule applied and the Special Fund was entitled to take a credit for the money paid to the claimant as a result of his first hearing loss claim.
Topic 8.13.6 Hearing Loss�Duplicative Claims and Section 8(f)
Nival v. Electric Boat Corp ., (Unreported)(Case Nos. 2002-LHC-362; 2002-LHC-1720) (July 25, 2002).
This is a Section 8(f) hearing loss claim. At issue is who receives the credit (Employer or Special Fund) for a previously paid compensation award. Previously the claimant was awarded benefits for a 53.75 percent hearing loss. As the employee demonstrated a pre-existing hearing loss of 42.50 percent, the employer was awarded the limiting provision of Section 8(f) and was only responsible for 11.25 percent of the hearing loss. The claimant was retained in employment and continued to be exposed to loud noises. In the present case, the parties stipulated that the claimant presently suffers from a 68.92 percent binaural hearing loss. The ALJ found that the employer was responsible to the claimant for his 68.92 percent hearing loss to the extent of 15.17 (68.92 - 53.75). As noted, the sole remaining issue was whether the Employer or the Special Fund is entitled to take a credit for all or a portion of the money that the claimant had already received as a result of the prior compensation award. Section 8(c)(13)(B).
The jurisprudence notes both an "Employer-First" rule, Krotis v. General Dynamics Corp ., 22 BRBS 128 (1989), aff'd sub nom. Director, OWCP v. General Dynamics Corp. , 900 F.2d 506 ( 2d Cir. 1990), and a "Fund-First" rule, Blanchette v. OWCP, United States Dept. of Labor , 998 F. 2d 109, 27 BRBS (CRT) ( 2d Cir. 1993). Under both rules the credit offsets the compensation due to the claimant for the second injury so that a double recovery does not occur. These cases, and others, note varying fact situations (i.e. voluntary payments; no pre-existing, pre-employment hearing loss).
While noting that Krotis applied an "Employer-First" rule, the ALJ judged it inequitable to apply Krotis since the employer herein "clearly has caused most of Claimant's current hearing loss during his maritime employment" and "would escape any liability herein." Agreeing with the District Director, the ALJ found Blanchette (Congress intended the employer to compensate the disabled employee for the entire second (work-related) injury.) to be controlling. Thus, the ALJ concluded that the "Special Fund-First" rule applied and the Special Fund was entitled to take a credit for the money paid to the claimant as a result of his first hearing loss claim.
Topic 8.13.11 ultiple Hearing Loss Claims and Date of Injury
Giacalone v. Matson Terminals, Inc. , 37 BRBS 87 (2003).
In this consolidated hearing loss claim involving two employers, with two separate audiograms, the Board applied the reasoning of the Ninth Circuit in Stevedoring Services of America v. Director, OWCP [Benjamin] , 297 F.3d 797, 36 BRBS 28(CRT) ( 9th Cir. 2002). The Board found that Benjamin does not disturb the basic principles of determining Claimant's entitlement under the aggravation rule, which provides that the employer at the time of the aggravation injury is liable for the entire disability at the average weekly wage (AWW) in effect at the time of the aggravating injury. Thus, each claim against an employer for consecutive hearing loss must be adjudicated. Where a prior employer is liable for a portion of the claimant's hearing loss, the credit doctrine works with the aggravation rule to provided the most recent employer with a credit for amounts paid by the prior employer for the same injury.
Here, Claimant filed a claim against Matson Terminals for a binaural hearing loss after receipt of an audiogram in 1995. That claim had not been resolved by the time Claimant filed his second claim against Marine Terminals for an increased hearing loss. The Board found that Matson was liable for the binaural hearing loss at Claimant's 1995 AWW as a matter of law, as well as for medical treatment from that date until the date of the 1998 audiogram. Marine Terminals is liable for Claimant's binaural hearing impairment based on claimant's AWW at the time of the 1998 audiogram, and is entitled to a dollar for dollar credit for the amount Claimant receives for his prior hearing loss injuries. Additionally, the Board found that the most recent responsible employer is liable for a claimant's continuing medical treatment.
Topic 8.13.11 Multiple Hearing Loss Claims and Date of Injury
Stevedoring Services of America v. Director, OWCP , 297 F.3d 797 ( 9th Cir. 2002).
The "last employer doctrine" does not contemplate merging two separate hearing loss claims into one. Here the claimant had filed two separate hearing loss claims based on two separate reliable audiograms. There was no dispute that the claimant's jobs at both employers were both injurious. The Ninth Circuit , in overruling both the ALJ and the Board, noted that, "[n]o case holds that two entirely separate injuries are to be treated as one when the first one causes, or is at least partially responsible for, a recognized disability."
The Ninth Circuit explained that, "[I]t is clear that had the first claim been dealt with expeditiously, the second claim would have been considered a separate injury....It was only fortuitous that the case was delayed to the point that the second claim became part of the same dispute. It is true that the last employer doctrine' is a rule of convenience and involves a certain amount of arbitrariness. However, the arbitrariness does not extend to an employer being liable for a claim supported by a determinative audiogram filed previously against a separate employer that simply has not been resolved."
The court opined that, "[T]reating the two claims separately is supported by sound public policy principles. In hearing loss cases, a claimant is likely to continue working even after the onset of disability. If a later audiogram is conducted--something the claimant will undoubtedly undergo in the hope of getting compensated for any additional injury--the first employer can simply point to the later audiogram as determinative' and hand off the burden of primary liability."
Topic 8.13.12 Hearing Loss and Average Weekly Wage
Giacalone v. Matson Terminals, Inc. , 37 BRBS 87 (2003).
In this consolidated hearing loss claim involving two employers, with two separate audiograms, the Board applied the reasoning of the Ninth Circuit in Stevedoring Services of America v. Director, OWCP [Benjamin] , 297 F.3d 797, 36 BRBS 28(CRT) ( 9th Cir. 2002). The Board found that Benjamin does not disturb the basic principles of determining Claimant's entitlement under the aggravation rule, which provides that the employer at the time of the aggravation injury is liable for the entire disability at the average weekly wage (AWW) in effect at the time of the aggravating injury. Thus, each claim against an employer for consecutive hearing loss must be adjudicated. Where a prior employer is liable for a portion of the claimant's hearing loss, the credit doctrine works with the aggravation rule to provided the most recent employer with a credit for amounts paid by the prior employer for the same injury.
Here, Claimant filed a claim against Matson Terminals for a binaural hearing loss after receipt of an audiogram in 1995. That claim had not been resolved by the time Claimant filed his second claim against Marine Terminals for an increased hearing loss. The Board found that Matson was liable for the binaural hearing loss at Claimant's 1995 AWW as a matter of law, as well as for medical treatment from that date until the date of the 1998 audiogram. Marine Terminals is liable for Claimant's binaural hearing impairment based on claimant's AWW at the time of the 1998 audiogram, and is entitled to a dollar for dollar credit for the amount Claimant receives for his prior hearing loss injuries. Additionally, the Board found that the most recent responsible employer is liable for a claimant's continuing medical treatment.