Fenske v. Service Emp. Int’l

Petitioner seeks review of the Board's decision holding that petitioner could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901–50. In this case, petitioner seeks concurrent compensation for a “scheduled” injury (hearing loss) under 33 U.S.C. 908(c)(13) and total disability caused by his back injury. Stevedoring Servs. of Am. v. Price allows concurrent awards for certain time-delayed injuries. The court held that, where the only evidence of hearing loss is a post-retirement audiogram, the Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs rule applies when determining the timing of disabilities under Price. Here, petitioner's last day of exposure to excessive noise was the same day as his back injury and Price does not apply. Under wage-compensation principles, concurrent payments for total disability and scheduled permanent partial disability are generally unavailable. Therefore, the Price exception does not apply because plaintiff's hearing loss did not precede his back injury. The court rejected petitioner's claim that he should at least be provided a decreased award capped at two-thirds of his wage under ITO Corp. of Baltimore v. Green. Accordingly, the court denied the petition for review. View "Fenske v. Service Emp. Int'l" on Justia Law