In this claim for benefits brought under the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act, Claimant alleged that he sustained both a hearing loss injury and a lower back injury caused by a suicide bomber attack while deployed in Iraq. Claimant’s back injury left him permanently and totally disabled. Claimant was adjudicated permanently and totally disabled following a first formal hearing, then a modification hearing brought under Section 22 of the LHWCA.

 

During the Section 22, modification hearing, Claimant also presented an audiogram that demonstrated binaural hearing loss of 9.7%. However, the presiding administrative law judge held that concurrent payments for hearing loss were unavailable because Claimant was already receiving PTD benefits. The Benefits Review Board affirmed this finding.

 

Claimant appealed to the U.S. Ninth Circuit Court of Appeals, arguing that he should be awarded concurrent benefits pursuant to Stevedoring Servs. of Am. v. Price, 382 F.3d 878 (9th Cir. 2004). In Price, the Ninth Circuit awarded concurrent benefits to a Claimant who sustained a loss of earning capacity from one accident, and then suffered total disability from a second accident. The Ninth Circuit held in Price that, under those circumstances—where later total disability was based on a wage that had already been decreased because of a prior partial disability—concurrent benefits were merited. Here, Claimant’s two injuries occurred from one accident. The court held that Price was distinguishable, and affirmed its long-standing principle that concurrent benefits were not merited where Claimant sustained both a “scheduled injury” and a permanent and total disability.

 

Fenske v. Service Employees Int’l