Article Summary

• The U.S. Court of Appeals for the Ninth Circuit recently issued a decision in a novel hearing loss case under the Longshore and Harbor Workers’ Compensation Act.
• In Total Terminals International, LLC v. Director, Office of Worker’s Compensation Programs, the Ninth Circuit addressed the question of whether an injured longshoreman who has hearing loss in one ear, but bilateral tinnitus should receive compensation at the statutory rate for hearing loss in both ears.
• The Court found that when a claimant has tinnitus in addition to ratable hearing loss in just one ear, he must receive compensation for only monaural hearing loss and does not receive additional compensation for his tinnitus by treating tinnitus as if it were hearing loss in both ears.

Total Terminals International, LLC v. Director – Background

For 13 years Claimant worked at the Port of Seattle as a Senior Operations Manager for Total Terminals International, LLC (“Employer”) and was frequently exposed to loud marine operations throughout the course of his employment. On June 12, 2019, Claimant underwent an audiogram and Claimant’s otolaryngologist, Dr. Alan Langman, diagnosed Claimant with a 0% right monaural hearing loss and a 9.375% left monaural hearing loss, applying the AMA Guides’ testing formula. Based on the AMA Guides’ monaural to binaural conversion table, Dr. Langman combined those figures to derive a 1.56% binaural hearing loss rating.

After Claimant made two subsequent complaints of bilateral constant high pitch whines, Dr. Langman diagnosed Claimant with bilateral tinnitus and added 2% and 4% to Claimant’s converted binaural impairment rating, respectively. After which, Claimant’s total converted binaural impairment rating was 5.56%.

On July 11, 2019, Claimant filed a claim for benefits for his hearing loss, and Employer and its insurer, Signal Mutual Indemnity Association, Ltd. (“Carrier”). Employer and Carrier voluntarily paid $7,361.03 for monaural hearing loss of 9.375% pursuant to 33 U.S.C. Section 908(c)(13)(A). Claimant sought additional benefits for binaural hearing loss under 908(c)(13)(B) based on his overall 5.56% converted binaural impairment rating, which included the tinnitus bump up.

An Administrative Law Judge (“ALJ”) ruled in favor of Employer, relying on the Benefit Review Board (the “Board”) and circuit court precedent which generally holds that a monoaural impairment should not be converted to a binaural impairment for purposes of awarding compensation under the Act. The ALJ reasoned that because Claimant had ratable hearing loss in only his left ear, he could not convert his monaural hearing loss to a binaural impairment in order to add the additional tinnitus rating. Thus, the ALJ ruled that Claimant was not entitled to additional compensation for tinnitus under Section 908(c)(13)(B).

Claimant, joined by the Director of the Office of Workers’ Compensation Programs, appealed the ALJ’s decision to a three-judge panel of the Board. The Board held that under 908(c)(13), a claimant does not need to have measurable hearing loss in both ears to be entitled to compensation for tinnitus. Rather, according to the AMA Guides, a claimant only needs to have a measurable binaural impairment, which in cases of tinnitus, should be calculated using the monaural-to-binaural conversion formula that the Guides prescribe, and then adjusted by up to 5%.

The Board concluded that when tinnitus affecting both ears is a factor in a claimant’s work-related hearing loss, benefits under the current AMA Guides are to be awarded under Section 908(c)(13)(B), even if there is measurable hearing loss in only one ear. Meanwhile, the Board acknowledged that prior Board and federal court decisions not involving tinnitus had rejected the notion of converting a monaural loss to binaural figure and then awarding compensation under 908(c)(13)(B).

Employer then moved for reconsideration of the Board’s decision, which was denied, and then petitioned for review in the Ninth Circuit, which was granted.

Ninth Circuit’s Decision

On appeal, the Ninth Circuit reversed the Board’s decision, holding that the Longshore Act does not permit monaural hearing losses to be compensated under 908(c)(13)(B), even when the claimant also has binaural tinnitus. At the heart of this appeal is the Ninth Circuit’s application of the AMA Guides or the Longshore Act in determining how the loss should be compensated.

The Ninth Circuit made clear that while the Longshore Act requires that determinations of hearing loss be made in accordance with the AMA Guides, the Longshore Act is not compatible with the AMA Guides in every respect. Relevant here, the Ninth Circuit noted that while the AMA Guides direct that monaural hearing losses be converted to binaural ones as a matter of course, the Longshore Act directs that monaural hearing loss be compensated at a different rate than biaural hearing loss. The Ninth Circuit stated that while the AMA Guides provide the methods employed under the Act for measuring hearing loss, whether binaural or monaural, it is ultimately the Longshore Act itself that determines how the loss should be compensated. And to that end, the statute is clear that monaural and binaural hearing losses are to be compensated differently.

The Ninth Circuit further reasoned that both the Act and the AMA Guides treat tinnitus and hearing loss as separate conditions. The Ninth Circuit noted that 908(c)(13) compensates for “loss of hearing”, and gives no indication that other ear related injuries, impairments, or conditions should also be compensated under that section. Further, the AMA Guides treat hearing loss and tinnitus separately. The Ninth Circuit noted that the AMA Guides on Hearing and Tinnitus state that while hearing loss can be measured objectively, tinnitus is subjective. Also, the AMA Guides use the broader term “hearing impairment,” but the Act uses the more specific “loss of hearing.” The Ninth Circuit stated that because tinnitus is not tantamount to a loss of hearing in the first place, it has no bearing on whether a claimant has loss of hearing in one or two ears.

Conclusion

While the facts that lead to this dispute are unique, this case makes clear that a monaural impairment must be compensated under Section 908(c)(13)(A) and may not be compensated as if it were a binaural impairment by applying the AMA Guides’ monaural to binaural conversion formula. Further, when a claimant has tinnitus in addition to ratable hearing loss in just one ear, he must receive compensation for loss of hearing for monaural hearing loss only and may not receive additional compensation for his tinnitus by treating tinnitus as if it were hearing loss in both ears under Section 908(c)(13)(B).