FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES FENSKE,

Petitioner,

v.

SERVICE EMPLOYEES

INTERNATIONAL, INC.; INSURANCE

COMPANY OF THE STATE OF

PENNSYLVANIA; DIRECTOR, OFFICE

OF WORKERS’ COMPENSATION

PROGRAM,

Respondents.

No. 14-71512

BRB No.

13-0559

OPINION

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;

GaryK. Stearman, Counsel for AppellateLitigation; 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 theLongshore 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 headon 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.