James Fenske v. Service Employees Int'l Inc. ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES FENSKE, No. 14-71512
Petitioner,
BRB No.
v. 13-0559
SERVICE EMPLOYEES
INTERNATIONAL, INC.; INSURANCE OPINION
COMPANY OF THE STATE OF
PENNSYLVANIA; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAM,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted May 12, 2016*
San Francisco, California
Filed August 26, 2016
Before: John T. Noonan, Kim McLane Wardlaw,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Noonan
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FENSKE V. SERVICE EMPLOYEES INT’L
SUMMARY**
Benefits Review Board
The panel denied a petition for review of a decision of the
Benefits Review Board holding that the petitioner, a United
States government contractor in Iraq who suffered severe
injuries caused by a suicide bomber, could not receive
concurrent payments for total disability and permanent partial
disability under the Longshore and Harbor Workers’
Compensation Act.
Petitioner sought concurrent compensation for a
“scheduled” injury (hearing loss) under 33 U.S.C
§ 908(c)(13) and total disability caused by his back injury.
Petitioner alleged that he was exposed to excessive noise
throughout his employment in Iraq.
The panel held that the holding in Stevedoring Servs. Of
Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (as amended)
(awarding concurrent payments because the later total
disability award was based on a wage that had already been
decreased by the earlier partial disability) did not apply
because a prerequisite for applying the Price theory is that the
partial disability preceded the total disability, and petitioner’s
hearing loss did not precede his back injury. The panel also
held that in a case where the only evidence of hearing loss
was a post-retirement audiogram, the rule in Bath Iron Works
Corp. v. Director, Office of Workers’ Compensation
Programs, 506 U.S. 153, 165 (1993) (discussing when a
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FENSKE V. SERVICE EMPLOYEES INT’L 3
hearing loss occurs and when it is complete for calculating
benefits), applied when determining the timing of disability
under Price, but Price did not apply in this case because
petitioner’s last day of exposure to excessive noise was the
same day as his back injury. Finally, the panel declined to
provide a decreased concurrent award capped at two-thirds of
petitioner’s wage under ITO Corp. of Baltimore v. Green, 185
F.3d 239 (4th Cir. 1999).
COUNSEL
Joshua T. Gillelan, II, Longshore Claimants’ National Law
Center, Washington, D.C.; Eric A. Dupree, Dupree Law,
APLC, Coronado, California; for Petitioner.
Kenneth M. Simon, Flicker, Garelick & Associates, LLP,
New York, New York, for Respondents Service Employees
International, Inc., and Insurance Company of the State of
Pennsylvania.
M. Patricia Smith, Solicitor of Labor; Rae Ellen James,
Associate Solicitor; Mark Reinhalter, Counsel for Longshore;
Gary K. Stearman, Counsel for Appellate Litigation; Matthew
W. Boyle, Attorney; Office of the Solicitor, United States
Department of Labor, Washington, D.C.; for Respondent
Director, Office of Workers’ Compensation Programs.
4 FENSKE V. SERVICE EMPLOYEES INT’L
OPINION
NOONAN, Circuit Judge:
James Fenske petitions for review of a decision of the
Benefits Review Board of the Department of Labor (the
“Board”) holding that Fenske could not receive concurrent
payments for total disability and permanent partial disability
under the Longshore and Harbor Workers’ Compensation Act
(the “Act”), 33 U.S.C. §§ 901–50. While we generally
disallow concurrent awards, Fenske seeks relief under our
holding in Stevedoring Servs. of Am. v. Price, 382 F.3d 878
(9th Cir. 2004) (as amended) (“Price”), which allows
concurrent awards for certain time-delayed injuries. We deny
Fenske’s petition for review of the Board’s decision.
FACTS AND PROCEEDINGS
James Fenske was a truck driver for a United States
government contractor in Iraq during the Iraq War. On
October 9, 2005, a suicide bomber in a vehicle collided head-
on with the truck Fenske was driving. The bomb did not
explode, but Fenske suffered severe injuries to his lower back
from the collision. This accident ended Fenske’s tour in Iraq.
Fenske sought compensation under the Act for his
injuries. An Administrative Law Judge (“ALJ”) awarded
Fenske temporary total disability benefits from October 9,
2005 until July 27, 2008, followed by permanent partial
disability benefits. The ALJ later granted Fenske’s petition
to modify the award, granting him permanent total disability
benefits, rather than partial disability benefits, from July 28,
2008 onwards.
FENSKE V. SERVICE EMPLOYEES INT’L 5
During the proceedings, Fenske also presented an
audiogram from June 4, 2009, which showed hearing loss in
both ears. The parties stipulated to a 9.7% permanent loss of
hearing and the ALJ found that the hearing loss was caused
by Fenske’s work in Iraq. The ALJ held that under the
Board’s precedent, concurrent payments for the hearing loss
were unavailable because Fenske was already receiving
compensation for total disability. See B.S. (Stinson) v. Bath
Iron Works Corp., 41 BRBS 97 (2007); Johnson v. Del Monte
Tropical Fruit Co., 45 BRBS 27 (2011).
Fenske appealed to the Board, which upheld the ALJ’s
decision denying concurrent payments. Fenske now petitions
for review of the Board’s decision.
STANDARD OF REVIEW
We review the Board’s decisions on questions of law de
novo. Price, 382 F.3d at 883. The Board reviews the ALJ’s
factual findings for substantial evidence and we review the
Board to ensure it applied that standard. Todd Shipyards
Corp. v. Dir., OWCP, 792 F.2d 1489, 1491 (9th Cir. 1986).
We review the litigation position of the Director of the
Office of Workers’ Compensation Programs with some
deference under Skidmore v. Swift & Co., 323 U.S. 134
(1944), and United States v. Mead Corp., 533 U.S. 218
(2001). Price v. Stevedoring Servs. of Am., 697 F.3d 820,
824–33 (9th Cir. 2012) (en banc) (“Price II”). The degree of
deference we provide the government depends on “the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
6 FENSKE V. SERVICE EMPLOYEES INT’L
persuade, if lacking power to control.” Skidmore, 323 U.S. at
140.
DISCUSSION
I
Fenske 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. Under the Act, a worker
suffering permanent or temporary total disability is entitled
to two-thirds of his or her weekly wage during the
continuance of the disability. Id. § 908(a), (b). Similarly, a
worker suffering a permanent partial disability under
33 U.S.C. § 908(c)(21) is entitled to two-thirds of his or her
lost wage-earning capacity for the continuance of the
disability.
“Scheduled” losses, in contrast, are a set of common
statutorily-enumerated permanent partial disabilities, such as
hearing loss, that are compensated at two-thirds of a worker’s
weekly wages for a number of weeks prescribed by statute.
See id. § 908(c)(1)–(20); see, e.g., id. § 908(c)(13)(B)
(“Compensation for loss of hearing in both ears, two-hundred
weeks.”). The length of compensation is proportionally
shorter if the loss is not complete: a 25% loss of hearing
requires only fifty rather than two-hundred weeks of
payment. See id. § 908(c)(19).
We have generally denied concurrent payments involving
total disability because the Act “invokes wage-compensation
principles rather than tort principles.” Rupert v. Todd
Shipyards Corp., 239 F.2d 273, 274–77 (9th Cir. 1956) (per
curiam) (denying concurrent payments for permanent total
FENSKE V. SERVICE EMPLOYEES INT’L 7
disability and facial disfigurement, a scheduled loss under
§ 908(c)(20)). While tort principles seek to compensate a
plaintiff for every injury wrongfully suffered, see Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306–07 (1986);
Dan B. Dobbs, et al., The Law of Torts § 10 (2d ed. 2016),
wage-compensation principles repay workers for lost earning
capacity, not the injury itself. Once a worker has lost all
earning capacity through total disability, an additional award
would constitute “double dipping,” that is, the worker would
be compensated “for a loss of earning capacity that is
accounted for in another award.” Price, 382 F.3d at 885.1
These principles and the rule against double dipping apply
to scheduled losses. Rupert, 239 F.2d at 275–76. The D.C.
Circuit has held that scheduled losses are “based upon a
damages concept rather than loss of wage-earning capacity”
because they are paid regardless of an actual loss in earning
capacity. See Henry v. George Hyman Constr. Co., 749 F.2d
65, 73 (D.C. Cir. 1984). However, a scheduled loss disability
only exists under the Act if there is an “incapacity . . . to earn
the wages which the employee was [previously] receiving.”
33 U.S.C. § 902(10). Rather than changing the Act’s
underlying wage-compensation principles, scheduled losses
exist to “ameliorate an otherwise intolerable administrative
burden by providing a certain and easily applied method of
determining the effect on wage earning capacity of typical
and classifiable injuries.” Rupert, 239 F.2d at 275–76; see
1
We have never directly held that the double dipping prohibition applies
to temporary total disability under § 908(b). Because Fenske’s argument
is premised entirely on our holding in Price, described below, we need not
reach the issue here. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998
(9th Cir. 2012) (“‘We review only issues which are argued specifically
and distinctly in a party’s opening brief.’” (citation omitted)).
8 FENSKE V. SERVICE EMPLOYEES INT’L
also Korineck v. Gen. Dynamics Corp. Elec. Boat Div.,
835 F.2d 42, 43–44 (2d Cir. 1987).
II
While accepting the above principles, Fenske argues that
he should be paid a concurrent award based on our holding in
Price. There, the petitioner suffered a permanent partial
disability under § 908(c)(21) and was awarded two-thirds of
his lost earning potential. Price, 382 F.3d at 882. Years
later, Price suffered a second injury causing permanent total
disability. Id. We held that under those circumstances,
concurrent payments were warranted because the later total
disability award was based on a wage that had already been
decreased by the earlier partial disability. Id. at 889; see also
Hastings v. Earth Satellite Corp., 628 F.2d 85, 91 (D.C. Cir.
1980) (allowing concurrent payments under similar
circumstances).
Fenske seeks to extend Price’s holding beyond permanent
partial disabilities under § 908(c)(21) to scheduled losses.
We need not address this issue: a prerequisite for applying the
Price theory is that the partial disability preceded the total
disability. Because Fenske’s hearing loss did not precede his
back injury, Price does not apply.
While Fenske was exposed to excessive noise throughout
his employment in Iraq, the only evidence of his hearing loss
was an audiogram obtained on June 4, 2009, four years after
his employment ended. In Bath Iron Works Corp. v.
Director, Office of Workers’ Compensation Programs, the
Supreme Court held that hearing loss is not a latent disease
involving a delayed onset of disability. 506 U.S. 153, 162,
165 (1993) (“Bath Iron Works”); see also 33 U.S.C. § 910(i).
FENSKE V. SERVICE EMPLOYEES INT’L 9
Instead, hearing loss “occurs simultaneously with the
exposure to excessive noise” and “the injury is complete
when the exposure ceases.” Bath Iron Works, 506 U.S. at
165. As a result, the Court held that when a post-retirement
audiogram shows hearing loss, “the date of last exposure—
the date upon which the injury is complete—is the relevant
time of injury for calculating a retiree’s benefits for
occupational hearing loss.” Id. Under this rule, Fenske’s
date of last exposure was the same day Fenske suffered his
back injury and was forced to leave Iraq.
Fenske argues that we should formulate an alternate rule
based on the Supreme Court’s statement in Bath Iron Works
that a hearing loss injury “occurs simultaneously with the
exposure to excessive noise.” Id. Although not addressed by
Bath Iron Works directly, Fenske’s argument is simply
inconsistent with the bright-line date-of-last-exposure rule
adopted by the Court. That rule “aids in the goal of avoiding
unnecessary administrative difficulties and delays” by not
setting the date of disability on the exact date of injury.
Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 962 (9th
Cir. 1998) (citations and internal quotation marks omitted).
As an injury that progresses with exposure over time,
determining the date and extent of hearing loss before the
date of last exposure would likely delay proceedings and
require more speculation than fact.
Additionally, we have previously rejected attempts to set
the date of hearing loss disability earlier than the date of last
exposure when the proof of earlier hearing loss was anything
less than a reliable audiogram. In Ramey, a worker obtained
an audiogram during his employment and two other
audiograms after he retired, all of which showed hearing loss.
Id. at 960–62. The ALJ found one of the post-retirement
10 FENSKE V. SERVICE EMPLOYEES INT’L
audiograms to be the most reliable and therefore
“determinative.” Id. We held that “the date of last exposure
prior to the determinative [post-retirement] audiogram” was
the relevant date for disability benefits and rejected the date
set by the less-reliable audiogram obtained during
employment. Id.; see also Stevedoring Servs. of Am. v. Dir.,
OWCP, 297 F.3d 797, 803–05 (9th Cir. 2002) (holding that
a reliable audiogram obtained during employment can be one
of multiple determinative audiograms). Here, Fenske does
not even provide unreliable evidence of hearing loss before
his date of last exposure to excessive noise.
In a case where the only evidence of hearing loss is a
post-retirement audiogram, we hold that the Bath Iron Works
rule applies when determining the timing of disabilities under
Price. Fenske’s last day of exposure to excessive noise was
the same day as his back injury and Price does not apply.
III
Fenske requests that if the full measure of concurrent
payments are not available, he should at least be provided a
decreased award capped at two-thirds of his wage under ITO
Corp. of Baltimore v. Green, 185 F.3d 239 (4th Cir. 1999).
There, the Fourth Circuit held that the total of multiple
awards should have a ceiling of two-thirds of a worker’s
average weekly wage—the amount awarded to a worker with
total disability. Id. at 242–43. This relief would benefit
Fenske because his total disability award was capped by
§ 906(b) at 200 times the national average weekly wage, an
amount that was less than two-thirds of his average weekly
wage for multiple years. The § 906(b) cap does not limit the
total amount paid for multiple awards. Price, 382 F.3d at
889–92.
FENSKE V. SERVICE EMPLOYEES INT’L 11
This argument provides no additional rationale for
allowing concurrent payments. We decline to provide the
requested relief.
CONCLUSION
Under wage-compensation principles, concurrent
payments for total disability and scheduled permanent partial
disability are generally unavailable. The Price exception
does not apply because Fenske’s hearing loss did not precede
his back injury. We DENY Fenske’s petition for review.