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                                 BRB No. 98-0314

JOHN WESTERMAN                          )
                                        )
          Claimant                      )    DATE ISSUED:   10/22/1998
                                        )
     v.                                 )
                                        )
OCEAN REPAIR SERVICE                    )
                                        )
     and                                )
                                        )
STATE INSURANCE FUND                    )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order On Remand of Stuart A. Levin,
     Administrative Law Judge, United States Department of Labor.

     Richard A. Cooper (Fischer Brothers), New York, New York, for
     employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order On Remand (91-LHC-137) of
Administrative Law Judge Stuart A. Levin 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, Administrative Law Judge Robert J. Feldman denied this claim based on his
finding that claimant was receiving total disability compensation for his knee
injury.  Claimant appealed, challenging the administrative law judge's denial of
benefits for his hearing loss.  Employer responded, urging affirmance.

     On appeal, the Board held that the administrative law judge properly denied
claimant compensation for his scheduled hearing loss during those periods he 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.  Inasmuch, however, as the record contained evidence, not addressed by the
administrative law judge,  which reflected that claimant may have been paid for a
period of temporary partial disability benefits for his knee injury, the Board
vacated the denial of benefits for the hearing loss, and remanded the case.  The
Board instructed the administrative law judge that if, on remand, he found that
claimant did, in fact, receive partial disability benefits for his 1985 knee injury
after his date of last exposure to injurious noise, claimant was entitled to an
award of benefits for his hearing loss under Section 8(c)(13), 33 U.S.C.
§908(c)(13), during these periods, and that such an award should be calculated
based on the parties' stipulations.[1] 
Westerman v.  Ocean Repair Service, BRB No.  93-0947 (July 30, 1996)
(unpublished).

     On remand, as Judge Feldman had retired, the case came before Judge Stuart A. 
Levin. The parties were provided with the opportunity to submit briefing. In its
brief, employer argued that claimant was last exposed to noise on April  8, 1986,
and that although the hearing loss award would ordinarily commence as of that time,
it did not commence until July 6, 1988, because claimant was receiving temporary
total disability compensation for his 1985 knee injury up until that time.  In
addition, employer contended that because claimant had received temporary partial
disability compensation for his 1985 knee injury premised on his having a residual
wage-earning capacity of $85.17 per week,  this figure should serve as the basis
for determining the compensation rate for his scheduled hearing loss award in order
to avoid claimant's receiving a double recovery.  Accordingly, it was employer's
position that claimant was limited to compensation payments based on 66 2/3 percent
of this amount or  $56.78 per week for 18.76 weeks.  

     In his Decision and Order on Remand, Judge Levin stated that, while employer's
argument was not without merit, the Board's remand instructions were quite specific
in that they mandated that if claimant were receiving temporary partial disability
benefits for his knee injury after claimant's last injurious exposure to noise, 
he should receive permanent partial disability compensation for his scheduled
occupational hearing loss based on the parties' stipulation.  Accordingly,
consistent with the Board's instructions, the administrative law judge ordered
employer to pay claimant hearing loss benefits based on the parties' stipulation;
thus, claimant was entitled to 66 2/3 percent of his average weekly wage of $590.65
or $393.37 per week for 18.76 weeks.  Tr.  at 6; Decision and Order On Remand at
4-5.

     On appeal, employer specifically argues that the administrative law judge
erred in awarding claimant compensation under Section 8(c)(13) based on 66 2/3
percent of his $590.65 average weekly wage, as this award results in his receiving
combined temporary  partial and scheduled permanent partial disability compensation
totaling  $730.76 per week,  an amount  which exceeds not only claimant's total
disability compensation rate, but also his initial average weekly wage.  Moreover,
employer argues that, contrary to the assumption made by the administrative law
judge at the initial hearing, the parties only stipulated to the degree of
claimant's hearing loss and not to the applicable  compensation rate.  In addition,
employer argues that because neither the Board's  Decision and Order, nor the
parties' stipulations at the August  5, 1991, hearing, explicitly addressed the
rate of payment for the scheduled award, the administrative law judge erred in
failing to consider this argument on remand. Finally, employer reiterates the
argument it made before the administrative law judge  that because claimant, who
had an average weekly wage of $590.65, was receiving compensation for his 1985 knee
injury based on a loss of wage-earning capacity of $505.48 per week, this left an
uncompensated capacity of $85.17 to serve as the basis for the scheduled award
thereby limiting claimant to scheduled benefits based on two-thirds of that amount
or $56.78 per week.

     After review of the Decision and Order On Remand in light of employer's
arguments and the record evidence, we affirm the administrative law judge's
determination that claimant is entitled to receive occupational hearing loss
benefits under Section 8(c)(13)(B) based on his stipulated average weekly wage of
$590.65, rather than his residual wage-earning capacity during periods of temporary
partial disability of  $85.17 per week. Where a claimant who sustains an injury
which results in an award of permanent partial disability compensation 
subsequently suffers a second injury which results in a permanent total disability
compensation, it is well-established that he may receive concurrent awards for the
two disabilities. See  Brady-Hamilton Stevedore Co. v. Director, OWCP
[Anderson], 58 F.3d 419, 29 BRBS 101 (CRT)(9th Cir. 1995); Hastings
v. Earth Satellite Corp., 628 F.2d 85, 14 BRBS 345 (D.C. Cir. 1980), cert.
denied, 449 U.S. 905 (1980); Finch v. Newport News Shipbuilding & Dry Dock
Co., 22 BRBS 196 (1989).  In such circumstances, however, the concurrent awards
of non-scheduled permanent partial disability and permanent total disability
compensation are premised on claimant's average weekly wage at the time of each
injury and the total of the two awards should fully compensate claimant for his
total disability under Section 8(a), 33 U.S.C.§908(a). See Anderson,
58 F.3d at 420, 29 BRBS at 102 (CRT). 

     The case presently before us, however, involves the calculation of concurrent
awards where a claimant who is receiving  temporary partial disability compensation
for one injury under Section 8(e) also sustains an unrelated injury resulting in
permanent partial disability to a body part listed in the schedule, 33 U.S.C.
§908(c)(1)-(19).  In this case, claimant sustained a 9.38 percent hearing loss
entitling him to 18.76 weeks of compensation at 66 2/3 percent of his average
weekly wage pursuant to Section 8(c)(13).  In resolving the issue of the average
weekly wage upon which his hearing loss award is based, we note initially that,
contrary to employer's assertions on appeal, the parties in the present case did
stipulate at the initial hearing that if claimant were entitled to compensation for
his hearing loss, he should receive $393.77 per week, based on 66 2/3 percent of
his average weekly wage of  $590.65, for  18.76 weeks. Tr. at 6.  As such
stipulations are generally binding on the parties, and the Board specifically
instructed the administrative law judge that if compensation were awarded on remand
it should be based on the parties' stipulation, the compensation awarded by the administrative law judge must be affirmed on
this basis, provided that the stipulation does not evince an incorrect application of law. See Thompson
v. Northwest Enviro Services, Inc., 26 BRBS 53 (1992); Puccetti v. Ceres
Gulf, 24 BRBS 25, 29 (1990).

     We note initially that there is no case authority which directly addresses the
concurrent partial awards presented here.  Nonetheless, the cases addressing the
nature of recovery under the schedule lead us to conclude that the parties'
stipulation regarding the applicable compensation rate comports with applicable
law, and that the administrative law judge's hearing loss award premised on the
stipulation was accordingly proper.  In this regard, we note that it is well-established that if an injury resulting in permanent partial disability is to a
member specifically identified in the schedule set forth in Section 8(c)(1)-(19)
of the Act, the injured employee is entitled to receive two-thirds of his average
weekly wage at the time of the injury for a specific number of weeks, premised on
his physical impairment regardless of whether his earning capacity has actually
been affected.  See Potomac Electric Power Co. v. Director, Office of Workers'
Compensation Programs  [PEPCO], 449 U.S. 268, 269-270, 14 BRBS 363
(1980).  Moreover, the schedule establishes a presumptive loss of earning power for
specific defined injuries, thus freeing the injured employee from the inconvenience
of having to litigate and prove a loss of earning power each time he or she is
injured. See Korineck v.  General Dynamics Corp., 835 F.2d 42, 20 BRBS 63
(CRT) (2d Cir. 1987).  In contrast, in all other cases, the Act only authorizes
partial disability compensation based upon proof of a diminution in earning
capacity and awards the injured employee compensation based on two-thirds of the
difference between his average weekly wage and his post-injury earning capacity. 
33 U.S.C. §908(c)(21), (e); Barker v.  U.S. Dept.  of Labor, 138 F.3d
431 (1st Cir. 1998). 

       Unlike awards of compensation under Section 8(c)(21) or (e) which are
contingent on the employee's proving a loss in wage-earning capacity, where the
employee sustains an injury falling under the schedule, compensation must be paid
in the scheduled amount even though the scheduled injury may have no effect on the
employee's capacity to perform a particular job or to maintain a prior level of
income. PEPCO, 449  U.S. at 282, 14 BRBS at 349.  Thus, an employee who
returns to his former job at the same wages nonetheless is paid the full scheduled
amount.  It is evident from this discussion that an award of permanent partial
disability compensation under the schedule is a form of liquidated damages; for
purposes of administrative efficiency, this award is premised on physical
impairment alone and economic factors, including earning capacity, are of  no
relevance. See generally Gilchrist v.  Newport News Shipbuilding & Dry Dock
Co., 135 F.2d 915, 32 BRBS 15 (CRT) (4th Cir. 1998); Burson v. T. Smith &
Son, Inc., 22 BRBS 124 (1989).  An  injured employee who returns to suitable
alternate work and earns his full pre-injury wages following a scheduled injury
receives full compensation under the schedule even though his actual earnings in
conjunction with his disability payments will clearly exceed his average wage prior
to his injury. See PEPCO, 449 U.S. at 282,  14 BRBS at 349. 
Similarly, during his period of temporary partial disability due to his unrelated
knee injury, claimant was entitled to the payment of the full scheduled amount. We
therefore reject employer's arguments and hold that the administrative law judge
properly awarded claimant compensation for his hearing loss based on his pre-injury
average weekly wage of $590.65, as stipulated by the parties.

     Accordingly, the administrative law judge's Decision and Order On Remand 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)The record reflects that claimant was receiving temporary partial disability benefits for his knee injury from July 6, 1988, through May 9, 1989, based on the difference between his average weekly wage of $590.65 and his residual earning capacity of $85.17 per week. The parties stipulated that the average weekly wage for the hearing loss award was also $590.65. Tr. at 6. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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