| I |
The Act - Section 8(c)(13) :
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| 8(c) |
Permanent
partial disability: In case of disability
partial in character but permanent in
quality the compensation shall be 66 2/3
per centum of the average weekly wages,
which shall be in addition to
compensation for temporary total
disability or temporary partial
disability paid in accordance with
subdivision (b) or subdivision (e) of
this section, respectively, and shall be
paid to the employee, as follows |
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| (13) |
Loss of
hearing: |
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| (A) |
Compensation
for loss of hearing in one ear,
fifty-two weeks. |
| (B) |
Compensation
for loss of hearing in both ears,
two-hundred weeks. |
| (C) |
An
audiogram shall be presumptive
evidence of the amount of hearing
loss sustained as of the date
thereof, only if
| (i)
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such
audiogram was
administered by a
licensed or certified
audiologist or a
physician who is
certified in
otolaryngology, |
| (ii) |
such
audiogram, with the
report thereon, was
provided to the employee
at the time it was
administered, and |
| (iii)
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no contrary
audiogram made at that
time is produced. |
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| II |
Section
20 Presumption : Return to Top : Exit Article |
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Section 20 Presumption is
established when: |
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| (A) |
audiogram by
board certified audiologist; |
| (B) |
employee receives
report within 30 days of audiogram; |
| (C) |
no one has
provided a contrary audiogram within 30 days of
subject audiogram if claimant is still exposed;
within 6 months if exposure ceases; |
| (D) |
audiometer is
calibrated according to national standards; and, |
| (E) |
hearing loss must
be measured in accordance with AMA Guidelines. |
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20 C.F.R. § 702.441(b)(1)-(3) and (d). |
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| III |
Timeliness
of Notice and Filing - § 8(c)(13)(D) : Return to Top : Exit Article |
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| (A) |
Time does not run
until employee receives audiogram and report,
and is aware of causal connection between loss
and employment. |
| (B) |
Oral explanation
of nexus will not suffice. Audiogram must be
accompanied by written report. Mauk v.
Northwest Marine Iron Works, 25 BRBS 118, 123
(1991). |
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| IV |
Responsible
Employer : Return to Top : Exit Article |
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Hearing loss benefits are
payable by the employer during the last maritime
employment in which the claimant was exposed to the
injurious stimuli, i.e., loud and excessive noise, prior
to the date upon which the claimant became aware of the
fact that he was suffering from an occupational disease
arising naturally out of his employment. Travelers
Ins. Co. v. Cardillo, 225 F.2d 137 (2d. Cir.), cert.
denied, 350 U.S. 913 (1955); see also Larson
v. Jones Oregon Stevedoring Co., 17 BRBS 205, 208
(1985) (last injurious exposure prior to audiogram).
| (A) |
A claimant’s
testimony of exposure can meet the burden of
proof. Avondale Industries v. Director, OWCP,
26 BRBS 111 (CRT) (5th Cir. 1992). |
| (B) |
Apportionment
between several employers not permitted. |
| (C) |
Last employer
rule is not a valid defense where subsequent
employer not covered by the LHWCA also
contributed to the occupational disease. |
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| V |
Extent of
Loss : Return to Top : Exit Article |
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| (A) |
Last responsible
employer liable for entire hearing loss when
injurious noise levels combine with pre-existing
hearing loss. Epps v. Newport News, 14
BRBS 520 (1981). |
| (B) |
Aggravation rule
does not permit a deduction for the effects of
presbycusis (hearing loss due to age). Ronne
v. Jones Oregon Stevedoring Co., 22 BRBS 344,
348 (1989). |
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| VI |
Date of
Injury - § 10(i) :
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For purposes of this
section with respect to a claim for compensation for
death or disability due to an occupational disease which
does not immediately result in death or disability, the
time of injury shall be deemed to be the date on which
the employee or claimant becomes aware, or in the
exercise of reasonable diligence or by reason of medical
advice should have been aware, of the relationship
between the employment, the disease, and the death or
disability. |
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| VII |
§ 8(c)(13) versus § 8(c)(23) : Return to Top : Exit Article |
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The Supreme Court has
held that the only correct method of granting disability
for hearing loss is through § 8(c)(13). This decision overruled prior
case law allowing benefits under § 8(c)(23) under the Act. The court held that
hearing loss is not an occupational disease. Bath Iron
Works Corp. v. Director, OWCP, __ U.S. __, 113 S.Ct
693, 26 BRBS 151 (CRT) (1993). |
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| VIII |
Special
Fund : Return to Top : Exit Article |
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If following an injury
falling within the provisions of section 8(c)(1)-(20)
[subsec. (c)(1)-(20) of this section], the employee is
totally and permanently disabled, and the disability is
found not to be due solely to that injury, the employer
shall provide compensation for the applicable prescribed
period of weeks provided for in that section for the
subsequent injury, or for one hundred and four weeks,
whichever is the greater, except that, in the case
of an injury falling within the provisions of section
8(c)(13) [subsec. (c)(13) of this section], the employer
shall provide compensation for the lesser of such
periods.
| (A) |
Hearing loss
claims, therefore, can be assessed to the Special
Fund, at the percentage of pre-employment loss.
In other words, if a pre-employment audiogram
shows a 30% binaural loss and a subsequent
audiogram shows a 35% loss, then the Special Fund
would be liable for 30% and the last responsible
employer would be liable for 5%. This is the only
exception releasing the employer from
responsibility for the first 104 weeks of
permanent disability. Skelton v. Bath Iron
Works, 27 BRBS 28 (1993). |
| (B) |
All other
requirements applicable to ' 8(f) apply such as: (1)
the pre-existing disability needs to be manifest;
and, (2) that the present disability is
materially and substantially greater than that
which would have resulted from the subsequent
injury alone. |
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| IX |
Credit
Doctrine : Return to Top : Exit Article |
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In cases where the
claimant has received a prior award or settlement for
hearing loss, the credit doctrine applies. The last
responsible employer is entitled to a dollar for dollar
credit for any previous monies paid to the claimant for
hearing loss. It should be noted that this is not a
percentage credit. For example, if the claimant received
a 30% award in 1970 netting $2,000 (in light of ’70
wages) and the claimant now has a 35% hearing loss which
is valued at $8,000 (in light of ’97 wages), the
employer owes $6,000.00 not 5%. Brown v. Bethlehem
Steel Corp., 19 BRBS 200 (1987), aff'd in
pertinent part and rev'd on other grounds sub nom. Director,
OWCP v. Bethlehem Steel Corp., 868 F.2d 759, 22 BRBS
47 (CRT) (5th Cir. 1989). |
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| X |
Monaural
versus Binaural Hearing Loss : Return to Top : Exit Article |
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| (A) |
The Second,
Fourth and Fifth Circuits have held that loss of
hearing in one ear should be compensated by the
method of calculation for monaural impairment (50
weeks). ' 8(c)(13)(A). |
| (B) |
The Board has
refused to follow these Circuit rulings. The BRB
has held that where an audiogram reflects
monaural hearing loss, the impairment should be
converted to a binaural hearing rating (200
weeks). The end result is an increase in
benefits. In support of this holding, the Board
reasoned that authorities agree that occupational
noise-induced hearing handicap is a binaural
assessment. Garner v. Newport News
Shipbuilding & Dry Dock Co. (Garner II),
24 BRBS 173, 176 (1991) (en banc) (Decision and
Order on Reconsideration), vacating 23
BRBS 345 (1990) (Garner I). |
| (C) |
The Circuit
decisions are much more persuasive in light of
the Longshore Act’s plain meaning. However, Garner
II, can be utilized as an effective argument.
The Board has specifically stated that noise
induced hearing loss is a binaural assessment. It
would stand to reason then, that noise exposure
would result in binaural hearing loss and that
monaural loss, unless traumatic, can not be a
result of work related exposure. |
| (D) |
The Third Circuit
has not ruled on this issue. Any adverse BRB
decision on this issue should be appealed. |
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| XI |
Time
Lapse and Causation :
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to Top : Exit Article |
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When there is a
significant time lapse between the last date of maritime
employment and the audiogram, the Board has been
dramatically inconsistent with their decisions. There are
some characterizations, which can be made, however. |
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| (A) |
Bruce v. Bath
Iron Works Corp., 25 BRBS 157 (1991) –
Board affirmed a denial of benefits when a 1968
audiogram verified a measurable hearing loss. The
last injurious exposure was in 1953. The ALJ
concluded that a 1968 audiogram failed to
establish a causal nexus with 1953 exposure. |
| (B) |
Compare Bruce
with Dubar v. Bath Iron Works, 25 BRBS 5
(1991) ( a 1988 audiogram can be used to
establish hearing loss in 1971 [last maritime
employment] when claimant continued to work at a
non-maritime site for same employer) and Labbe
v. Bath Iron Works, 24 BRBS 159 (1991) ( a
1986 audiogram can be used to establish hearing
loss in 1979 [last maritime employment] when
claimant continued to work at a non-maritime site
for same employer) |
| (C) |
It seems that the
Board is more willing to find a causal link when
the employee has worked for the same company
after the alleged exposure even when a factual
distinction should not be made as the subsequent
employment was non-maritime. However, the Bruce
case can and should be used in cases where
there is a large time lapse between alleged
exposure and audiogram date. |
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| XII |
Penalties
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Section 14(e) penalties
apply to hearing loss claims. Employer must begin paying
benefits or properly controvert claim (Form LS-207 or
LS-208) upon knowledge of the injury, and not the receipt
of the claim. |
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| XIII |
Statute
of Limitations : Return to Top : Exit Article |
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| (A) |
The §12 and 13 Statute of
Limitations do not begin to run until claimant is
aware of the full extent, character, and impact
of the new harm that has occurred. Abel v.
Director, OWCP, 932 F.2d 819, 24 BRBS 130
(CRT) (9th Cir. 1991); Bath Iron Works Corp.
v. Galen, 605 F.2d 583, 10 BRBS 863 (1st Cir.
1979). |
| (B) |
Once the statute
of limitations begins to run, the claimant has
one year to file a claim. |
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| XIV |
Average
Weekly Wage : Return to Top : Exit Article |
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| (A) |
Employee Still
Working – AWW is set based on 52 week wages
prior to the date of injury (date employee became
aware or reasonably should have been aware of
impairment and its connection to work place
exposure). Grace v. Bath Iron Works, 21
BRBS 244, 247 (1988). |
| (B) |
Voluntary Retiree
– Based upon Average Weekly Wage at time of
last injurious exposure. Bath Iron
Works Corp. v. Director, OWCP, 942 F.2d 811,
25 BRBS 30 (CRT) (1st Cir. 1991),
aff'g on other grounds 22 BRBS 384 (1989), aff'd,
___U.S.___, 113 S. Ct. 692, 26 BRBS 151 (CRT)
(1993). |
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