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Estate of AUBREY P. BROOKS              )    BRB No. 92-0555
                                        ) 
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
ADDSCO INDUSTRIES,                      )
INCORPORATED                            )    
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES, DEPARTMENT OF            )
LABOR                                   )    
          Respondent                    )
                                        )
Estate of OSSIE JONES, SR.              )    BRB No. 92-0574
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
ADDSCO INDUSTRIES,                      )
INCORPORATED                            )    
                                        )
          Self-Insured                  )
          Employer-Respondent           )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )    DATE ISSUED:   02/24/1995
COMPENSATION PROGRAMS,          )
UNITED STATES, DEPARTMENT OF            )
LABOR                                   )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeals of the Decisions and Orders - Awarding Benefits of A. A.
     Simpson, Jr., Administrative Law Judge, United States Department of
     Labor.

     John D. Gibbons (Gardner, Middlebrooks, & Fleming, P.C.), Mobile,
     Alabama, for claimants.

     Walter R. Meigs, Mobile, Alabama, for the self-insured employer.

     Mark A. Reinhalter (Thomas S. Williamson, Jr., Solicitor of Labor; Carol
     DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore),
     Washington, D.C., for the Director, Office of Workers' Compensation
     Programs, United States Department of Labor.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimants appeal the Decisions and Orders - Awarding Benefits (89-LHC-3293 and
89-LHC-3295) of Administrative Law Judge A. A. Simpson, Jr., rendered on claims
filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation
Act, as amended, 33 U.S.C. §901 et seq. (the Act).[1]   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).  

     This case involves consolidated appeals by the estates of two deceased
employees of awards of occupational hearing loss benefits made by the
administrative law judge to the Special Fund pursuant to 33 U.S.C. §908(d)(3)
after the decedents' deaths.  Decedent Jones worked at employer's facility from
1942 until he voluntarily retired on February 24, 1978.  On March 28, 1978, he
underwent an audiological evaluation at the University of South Alabama Speech and
Hearing Center which indicated that he suffered from a 26 percent binaural
impairment.  On April 23, 1978, he filed a claim for noise-induced work-related
hearing loss under the Act based on the March 29, 1978, audiogram.  Decedent Jones
died of lung cancer on March 19, 1989, prior to the adjudication of his claim,
leaving no statutory survivors under Section 8(d)(1), 33 U.S.C. §908(d)(1). 
This case was referred to the Office of Administrative Law Judges on August 3,
1989.  The estate of the deceased employee was substituted as the claimant.

     Decedent Brooks worked at employer's facility from 1956 until he voluntarily
retired on June 6, 1983.  On April 3, 1987, he sought benefits under the Act for
a 5.9 percent noise-induced work-related binaural hearing loss based on an
audiometric examination administered on November 3, 1986, at the University of
South Alabama Speech and Hearing Center. Decedent Brooks died on April 17, 1989,
prior to the adjudication of his claim, leaving no survivors under Section 8(d)(1). 
This case was referred to the Office of Administrative Law Judges on August 3,
1989.  The estate of the deceased employee was substituted as the claimant.  

     No hearings were held in the consolidated cases, as the parties were in
agreement as to all material facts.  Claimants and employer entered into
stipulations regarding causation as well as the date of injury and the extent of
the binaural hearing loss revealed on the filing audiograms. According to the
administrative law judge's decisions, the parties also stipulated to the applicable
National Average Weekly Wage as of the date of the filing audiogram in each case. 
Accordingly, the only issues remaining for adjudication before the administrative
law judge were whether the decedents' occupational hearing loss benefits should be
calculated under Section 8(c)(13), 33 U.S.C. §908(c)(13) (1988) or Section
8(c)(23), 33 U.S.C. §908(c)(23)(1988), and whether the unpaid benefits which
had accrued from the date of the filing audiogram to the date of the decedents'
deaths were the property of the decedents' estates under Section 8(d)(3) of the
Act, 33 U.S.C. §908(d)(3)(1988).

     The administrative law judge found that as each decedent was a retiree,
employer was liable for permanent partial disability compensation under Section
8(c)(23).  Inasmuch as both decedents had died without any statutory survivors, the
administrative law judge further determined that benefits which accrued from the
date of the filing audiogram to the date of death were to be paid by employer to
the Special Fund pursuant to Section 8(d)(3) of the Act.  Lastly, in both cases,
the administrative law judge found that as there had been no successful prosecution
on behalf of the claimant, counsel was not entitled to an attorney's fee under
Section 28 of the Act, 33 U.S.C. §928.

     Claimants appeal, challenging the administrative law judge's award of benefits
to the Special Fund. Specifically, the claimants contend that each decedent's
estate is entitled to the benefits which accrued to the decedent prior to his death
and that such benefits are properly calculable under Section 8(c)(13) of the Act. 
Employer responds, urging that the Board affirm the awards of benefits to the
Special Fund. Employer, however, concedes that since the administrative law judge
issued the decisions in the consolidated cases, the United States Supreme Court
held in Bath Iron Works Corp. v. Director, OWCP,   U.S.   , 113 S.Ct. 692,
26 BRBS 151 (CRT)(1993), that all occupational hearing loss is properly compensated
under Section 8(c)(13).  Employer asserts that if the Board concludes that Bath
Iron Works is to be retroactively applied, as employer believes it should be, 
the case must be remanded for the administrative law judge to ascertain the
appropriate average weekly wage consistent with Bath Iron Works.  The 
Director, Office of Workers' Compensation Programs (the Director), also responds,
arguing that the administrative law judge properly found that the Special Fund is
entitled to the deceased employees' accrued compensation.  The Director maintains,
however, that the administrative law judge erred in denying claimants' counsel an
attorney's fee, as employer controverted the claims and claimants ultimately
prevailed in establishing employer's liability for the decedents' hearing losses
even if, due to operation of Section 8(d)(3), such benefits are to be paid to the
Special Fund.


     Initially, we agree that in light of Bath Iron Works, which was issued
by the Supreme Court after the administrative law judge's decisions in the
consolidated cases, compensation for the decedents' hearing loss benefits must be
calculated pursuant to Section 8(c)(13) of the Act.  In Bath Iron Works, the
United States Supreme 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.  We therefore vacate the administrative law judge's award of benefits
in the consolidated cases under Section 8(c)(23), and modify the administrative law
judge's decisions to award benefits under Section 8(c)(13) consistent with the
parties' stipulations.  Employer is thus liable for 11.8 weeks of permanent partial
disability compensation for the 5.9 percent binaural loss sustained by decedent
Brooks and for 52 weeks of compensation for the 26 percent binaural loss sustained
by decedent Jones.  33 U.S.C. §908(c)(13)(B).   

     In Bath Iron Works, the Court also held that the date of the last
exposure to injurious noise is the relevant date of injury for purposes of
calculating the applicable average weekly wage rather than the date of awareness
under Section 10(i) of the Act, 33 U.S.C. §910(i).  In its response brief,
employer argues that if the Board retroactively applies Bath Iron Works, the
case should be remanded to the administrative law judge so he can recalculate the
applicable average weekly wage consistent with Bath Iron Works.  Claimants
oppose this argument, asserting that employer is attempting to back out of the
stipulations the parties agreed to in the presentation of their claims.  As the
stipulations entered into by the parties regarding the applicable average weekly
wage were based on the now incorrect application of law, we reject the claimants'
contention that employer should be bound to its stipulations. See Puccetti v.
Ceres Gulf, 24 BRBS 25 (1990).  Accordingly, we vacate the administrative law
judge's average weekly wage findings in the consolidated cases and remand to allow
him to determine the applicable average weekly wage as of each decedent's last
injurious exposure consistent with Bath Iron Works. 

     Claimants further challenge the administrative law judge's decision to award
benefits accruing prior to the decedent's death to the Special Fund.  Section 8(d)
of the Act provides for the disbursement of a deceased employee's scheduled
disability benefits in the event he dies prior to the payment of benefits for
reasons unassociated with his work-related injury.  If the employee dies leaving
statutory survivors, as enumerated in Section 8(d)(1), 33 U.S.C. §908(d)(1),
his unpaid scheduled benefits are distributed accordingly; however, if he dies
without statutory survivors, his benefits are paid to the Special Fund pursuant to
Section 8(d)(3).  The Board has recently interpreted Section 8(d) and held that an
employee has a vested interest in benefits which accrue during his lifetime and,
after he dies, his estate is entitled to the accrued benefits, regardless of when
an award is entered. Clemon v. ADDSCO Industries, 28 BRBS 104 (1994);
Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27 (1994), modified in part
on recon., 28 BRBS 156 (1994). See generally Alabama Dry Dock & Shipbuilding
Corp. v. Director, OWCP, 804 F.2d 1558, 19 BRBS 61 (CRT)(11th Cir. 1986);
Turner v. Christian Heurich Brewing Co., 169 F.2d 681 (D.C. Cir. 1948);
Wilson v. Vecco Concrete Construction Co., 16 BRBS 22 (1983).  In accordance
with this holding, the Board additionally held that the term "unpaid" in Section
8(d) means "unaccrued," and that, upon the death of an employee, his unaccrued
scheduled permanent partial disability benefits go either to his statutory
survivors, determined on the date of his death, or to the Special Fund upon his
death without survivors. Clemon, 28 BRBS at 112-113; Wood, 28 BRBS
36-38.

     In the cases currently before us, as decedent Jones retired in 1978, the
entire 52 weeks of benefits due for his hearing loss claim accrued prior to his
death on March 19, 1989.  As decedent Brooks retired in 1983, the 11.8 weeks of
benefits due for his hearing loss claim also accrued prior to his death on April
17, 1989.  33 U.S.C. §908(c)(13)(1988); Bath Iron Works, 113 S.Ct. at
699-700, 26 BRBS at 154(CRT); Moore v. Ingalls Shipbuilding, Inc., 27 BRBS
76, 79 (1993). As both decedents had a vested right in the permanent partial
disability benefits which accrued during their lifetimes, their estates are
entitled to these permanent partial disability benefits. Accordingly, we reverse
the administrative law judge's award of the accrued benefits to the Special Fund
for the reasons set forth in Clemon and Wood, and modify the
administrative law judge's awards in the consolidated cases to reflect that each
decedent's estate is entitled to the accrued but unpaid scheduled permanent partial
disability benefits owed to the decedent. Clemon, 28 BRBS at 111;
Wood, 28 BRBS at 35. See also Hamilton v. Ingalls Shipbuilding, Inc.,
28 BRBS 125, 129 (1994)(Decision and Order on Remand).  

     In their Supplemental Petition For Review, the claimants also contend that the
administrative law judge erred in denying counsel an attorney's fee because the Act
"authorizes payment of attorney['s] fees when payment is obtained."  The
administrative law judge denied claimants' counsel an attorney's fee payable by
employer because he concluded that counsel's efforts did not result in the
successful prosecution of the claim on behalf of the claimant as is required under
Section 28 of the Act, 33 U.S.C. §928.

     The administrative law judge's denial of a fee is reversed.  Under Section
28(a) of the Act, 33 U.S.C. §928(a), if an employer declines to pay any
compensation within 30 days after receiving written notice of a claim from the
district director, and the claimant's attorney's services result in a successful
prosecution of the claim, the claimant is entitled to an attorney's fee payable by
employer.  Inasmuch as employer disputed liability for decedents' occupational
hearing loss benefits and their estates succeeded in establishing entitlement to
these benefits, claimants have prevailed in obtaining compensation which employer
declined to pay.  Claimants' counsel is thus entitled to an attorney's fee payable
by employer pursuant to Section 28(a).  On remand, the administrative law judge
must enter an appropriate fee. See Hamilton, 28 BRBS at 128.

     Accordingly, the administrative law judge's Decision and Orders - Awarding
Benefits are reversed insofar as they award benefits to the Special Fund, and the
awards in the consolidated cases are modified to reflect employer's liability
pursuant to Section 8(c)(13), payable to decedents' estates.  The cases are
remanded for a determination of the applicable average weekly wage consistent with
Bath Iron Works.  Further, the administrative law judge's denial of an
attorney's fee in both cases is reversed, and the cases are remanded for
consideration of counsel's fee petition and any objections made thereto.  In all
other respects, the administrative law judge's Decisions and Orders are affirmed. 


     SO ORDERED.



                                                                         
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge
 

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Footnotes.


1)By Order dated August 18, 1992, the Board granted claimants' motion to consolidate the appeals in Brooks v. ADDSCO Industries, Inc., BRB No. 92-0555 and Jones v. ADDSCO Industries, Inc., BRB No. 92-0574, for purposes of decision. 20 C.F.R. §802.104(a). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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