The Benefits Review Board (“BRB”) recently addressed the interplay between a hearing loss claim and the 2009 revision to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provision dealing with the recreational vessel exclusion. In Czikowsky v. Ocean Performance, Inc., BRB No. 13-0108, 2013 WL 5437444 (2013), Claimant had worked as a marine mechanic for 19 years. Claimant acknowledged that he mostly worked on recreational vessels, but that some of those vessels should be considered charter fishing boats due to the number of hours logged on the vessel’s engines. He alleged a hearing loss due to his employment, and audiograms dated April 10 and August 14, 2009 confirmed the loss.
In 2009, Congress amended Section 2(3)(F) of the LHWCA. Before the amendment, Section 2(3)(F) excluded “individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length” from the “employee” definition. In the 2009 amendment, Congress fleshed out the exclusion. Specifically, Congress excluded “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel . . . .” See 33 U.S.C. § 902(3)(F). The effective date of the amendment was February 17, 2009.
On appeal, the parties agreed that the April 10, 2009, audiogram was the “date of injury,” but the BRB did not agree. The date of injury in a hearing loss claim is “the date the individual was exposed to harmful workplace noise or other stimulus that is capable of causing hearing loss.” See 20 C.F.R. § 701.504(a)(e). But determining which version of Section 2(3)(F) to apply requires another step. When Section 2(3)(F) was amended, the Department of Labor agreed that the date of exposure controlled the date of injury in a hearing loss claim. But, it also “acknowledged that hearing loss occurs over a period of time and stated . . . ‘[i]f some or all exposures occurred prior to February 17, 2009, the amendment would simply not apply with respect to a disability resulting from those exposures.'” The BRB latched onto this statement to conclude that, if any injurious noise exposure occurred before February 17, 2009, then the prior version of Section 2(3)(F) applies.
Czikowsky v. Ocean Performance, Inc., BRB No. 13-0108, 2013 WL 5437444 (2013).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)