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                                    BRB No. 90-0801

DAVID D. WALLACE                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )    DATE ISSUED:   06/19/1995
                                        )
          Self-Insured                  )     
          Employer-Petitioner           )    DECISION and ORDER
     
     Appeal of the Decision and Order - Awarding Benefits and Order
     Correcting Decision of James W. Kerr, Jr., Administrative Law Judge,
     United States Department of Labor. 

     Jerry L. Hutcherson, Pascagoula, Mississippi, for claimant. 

     Paul M. Franke, Jr. (Franke, Rainey & Salloum), Gulfport, Mississippi,
     for self-insured employer.

     Before:  SMITH, BROWN and McGRANERY, Administrative Appeals Judges.   

     PER CURIAM:

     Employer appeals the Decision and Order - Awarding Benefits and Order
Correcting Decision (88-LHC-3539) of Administrative Law Judge James W. Kerr, Jr.,
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 administrative law judge's findings of fact and
conclusions of law if they are supported by substantial evidence, are rational, and
are in accordance with applicable law. O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  

     Claimant, a retiree, was exposed to loud noise while in the course of his
employment with employer.  On March 30, 1987, claimant filed a claim for benefits
under the Act for a work-related hearing loss.  CX 3.  

     In his Decision and Order, the administrative law judge determined that
claimant had sustained a 29.88 percent binaural impairment, and awarded claimant
benefits pursuant to Section 8(c)(13) of the Act, 33 U.S.C. §908(c)(13)
(1988), based upon an average weekly wage of $437.51, medical expenses and interest.  Additionally, claimant's counsel
was found entitled to an attorney's fee payable by employer.  In a subsequent Order
Correcting Decision, the administrative law judge corrected the original Decision
and Order to provide that compensation be based on an average weekly wage of
$302.66.

     On appeal, employer challenges the administrative law judge's decision to
award claimant benefits pursuant to Section 8(c)(13) of the Act.

     Employer's sole contention on appeal is that, as claimant was a retiree at the
time of injury, any award of compensation to claimant for a loss of hearing should
be made pursuant to Section 8(c)(23), 33 U.S.C. §908(c)(23) (1988), rather
than Section 8(c)(13), of the Act.  We disagree.  In the time since employer filed
its brief on appeal, the United States Supreme Court issued its decision in Bath
Iron Works Corp. v. Director, OWCP,    U.S.    , 113 S.Ct. 692, 26 BRBS 151
(CRT)(1993).  In Bath Iron Works, the Court held that claims for hearing
loss under the Act, whether filed by current employees or retirees, are claims for
a scheduled injury and must be compensated pursuant to Section 8(c)(13), rather
than Section 8(c)(23), of the Act.  Thus, for the reasons set forth in Bath Iron
Works, we reject employer's contention that the award of compensation for
claimant's hearing loss should be made pursuant to Section 8(c)(23), and we affirm
the administrative law judge's award of benefits under Section 8(c)(13) of the
Act.[1]    
     
     Accordingly, the administrative law judge's award of benefits to claimant
under Section 8(c)(13) is affirmed.

     SO ORDERED.

                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)In view of our disposition of this issue, employer's motion to remand is denied. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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