Claimant sustained a work-related back injury on October 10, 1990, which rendered him temporarily totally disabled for a period of nearly one year, and permanently totally disabled thereafter. Over seventeen years later, Claimant underwent an audiogram demonstrating a 24.4 percent binaural hearing loss which was attributed to employment-related noise exposure that last occurred on October 10, 1990, when Claimant stopped working for Employer. Claimant argued that he was entitled to receive a scheduled award for his hearing loss concurrently with the temporary total disability award for his back injury. The Administrative Law Judge determined, however, that the scheduled hearing loss claim for PPD benefits was subsumed in Claimant’s total disability award. Claimant appealed, but the Benefits Review Board (“BRB”) affirmed the ALJ’s decision.
A claimant may not receive concurrently a scheduled permanent partial disability award for one injury and a total disability award for another injury, as a claimant cannot receive compensation greater than that for a total disability. The Board has held that, in cases where a claimant sustains two injuries, one of which is totally disabling and the other which would result in a scheduled award, the claimant can receive scheduled benefits only where he is able to show that the permanently partially disability injury occurred prior to the onset of total disability. That did not happen here. Claimant’s last exposure to injurious industrial noise coincided with the date of Claimant’s back injury.
The BRB also addressed the meaning of the phrase “in addition to” in light of the relevant legislative history. When the Longshore and Harbor Workers’ Compensation Act was amended in 1934, a new preface accompanied Section 8(c). The new Section 8(c) preface stated that the payment of PPD benefits “shall be in addition to” TTD benefits. The BRB interpreted this phrase to support the longstanding precedent that a claimant is not entitled to concurrently receive scheduled PPD benefits and total disability benefits, whether the total disability is temporary or permanent.
Johnson v. Del Monte Tropical Fruit Co., BRB No. 10-0541, 2011 WL 2616914 (BRB 06/15/11).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
