F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A M E S F E

N S K E , P etitioner
,

v

.

S E R V I C E E M P L O Y E E S I N T E R N A T I O N A L , I N C

. ; I N S U R A N C E C O M P A N Y O F T H E S T A T E O F P E N N S Y L V A N I A ; D I R

E C T O R , O F F I C E O F W O R K E R S ’ C O M

P E N S A T I O N P R O G R A M , Respondents. N o. 14-71512

B RB No. 13-0559

OPI NI ON

O n Petition for Review of an Order of the B enefits Review B oard

Submitted May

12, 2016 * San F rancisco, California

F iled Aug ust 26, 2016

B efore: J ohn T. Noonan, Kim McL ane W ardlaw, and Richard A. Paez , Circuit J udg es.
Opinion by J udg e Noonan

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 2

SUMMARY * *

Benef its Review Board

The panel denied a p etition for review of a decision of the B enefits Review B oard hold i n g that the petitioner, a United States g overn m e n t contractor in I raq who suffered severe injuries caused by a suicide bomber, c o u l d not receive
concurrent p ay

ments for total disability and permanent partial disability under the L on gs h ore and Harbor W orkers’ Compensation Act.

Petitioner soug ht concurrent c ompensatio n f or a “s c h eduled” injury (hearing loss) under 33 U.S.C § 908(c)( 13) and total disability c aused by h is b ack injury

. Petitioner alleg ed that he was ex posed to e x c e s sive noise throug hout his employ

ment in I raq.

The panel held that the holding in Stevedoring Servs. Of Am. v

. P r ice
, 382 F .3d 878 (9th Cir. 2004) (as amended) (awarding concurrent pay ments b ecau s e the later total disability award was based o n a wag e that had already been decreased b y the earlier p artial disabili t y ) did n ot a

pply because a p rerequisite f

or apply ing the Price theory is that the partial disability preceded the total disability
, and petitioner’s hearing loss did not p recede his back injury

. The panel also held that in a case wh e re the only evidence of hearing loss

was a post-retirement audiog ram, the r ule in Bath I

ron W o rks Corp. v. D irector, Office of W orkers’ Compensation Programs
, 5 0 6 U.S. 153, 165 (1993) (discussing when a

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 3

hearing loss o ccurs a

nd when it is c o m p l e te for calculating benefits), a p plied when determining the timing of d isability under Price
, but Price d i d not apply in this case because
pe t itioner’s last day of e x posure to ex cessive noise was the

s a me day as his back injury

. F inally
, the panel declined t o provide a decreased concurrent award capped at two-thirds o f petitioner’s wag e under ITO Corp. of Baltimore v. Green
, 185 F .3d 239 (4th Cir. 1999).

COUNSEL

J oshua T. Gillelan, I I
, L ong shore Claim ants’ National L aw Center, W ashing t o n, D .C.; Eric A. D upree, Dupree L aw, APL C, Coronado, California; for Petitioner.

Kenneth M. Simon, F licker, Garelick & As s o ciates, L L P, New Y ork, New York, for Respondents Service Employ ee s I nternational, I nc., and I nsurance Company of the State o f Pennsy lvania.

M. Patric i a Smith, Solicitor of L abor; Rae Ellen J ames, Associate Solicitor; Mark Reinhalt e r , Counsel f or L ong shore; Gary K. Stearman, Counsel for Appe l l a t e L itig ation; Matthew W

. B o y le, A ttorney ; Office of the Solici t o r, United States Department o f L abo r , Washing ton, D.C.; for Respondent Director, Office of W orkers’ Compensation Prog rams.F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 4

OP INION

NOONAN, Circuit J udg e:

J am e s F e nske p etitions for review of a decision of the B enefits Review B oard of the D epartment of L abor (the “B oard”) holding that F ens k e c ould not receive concurrent pay ments for total disability a n d permanent partial d isability under the L o ng shore and Harbor Workers’ Compensation A ct (the “Act”), 33 U.S.C. §§ 901–50. While we g enerally disallow concurrent awards, F e n ske seeks r elief u nder our hold i n g in Stevedoring Servs. of Am. v. Price
, 382 F .3d 878 (9th Cir. 2004) (as a mended) (“ Price ”), w hich all o w s concurrent a

wards for certain time-delay ed injuries. We deny F enske’s petition for review of the B oard’s decision.

F ACTS AND PROCEEDI NGS

J ames F e nske was a truc k d r iver for a United States government contractor in I raq during the I raq W ar. On October 9, 2005, a suicide b omber in a vehicle collided headon w i t h t h e truck F e nske was driving

. The bomb did not

ex p lode, but F enske suffered severe injuries to his lower back from the collision. This a ccident ended F enske’s tour in I raq.

F enske soug h t c ompensation under the Act for his injuries. An Administrative L aw J udg e (“AL J ” ) aw ar d ed F enske temporary total disabil i t y benefits from October 9, 2005 until J u ly 27, 2008, followed by p e r manent partial disability benefits. The A L J later g r an t e d F enske’s petition
to modify the a

ward, g ranting h im permanent total d isability benefits, r ather than partial disability benefits, from J uly 28, 2008 onwards.F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 5

During the procee ding s, F enske also presented an audiog ram from J une 4, 2009, which showed hearing loss in both ears. The parties stipulated to a 9.7% permanent loss o f hearing a nd the AL J found that the hearing loss was c aused by Fenske’s work in I raq. The AL J held that under the B oard’s precedent, concurrent pay ments for the hearing

loss

w e r e unavailable because F enske was already receivin g compensation for total disability

. Se e B

. S

. ( Stinson) v

. Bath Iron W o rks Corp.
, 41 B RB S 9 7 (2007); Johnson v. Del Monte Tropical Fruit Co. , 45 B RB S 27 (2011).

F enske appealed to the B o ard, w hich up held the AL J ’s decision deny ing concurrent p ay ments. F enske now p e titions for review of the B o ard’s decision.

STANDARD OF REVI EW

W e review the B oard’s decisions on questions o f law de

novo. Price
, 382 F

. 3 d at 883. The B oard reviews the AL J ’s factual finding s for substantial eviden c e and w e review the B oard to ensure it applied that standard

. T o d d Shipyards Corp. v. Dir., OW

CP , 792 F .2d 1489, 1491 (9th Cir. 1986).

W e review the litig ation position of the Director of t h e Office of W orkers’ Compensa tion Prog rams w ith some deference u n d e r S

kidmore v. Swift & Co.
, 323 U.S. 134 (1944), a nd U nited S tates 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 d eg ree o f deference we p r ovide the g overnment d epends on “the thoroug hness evid en t in its consideration, the validity of its

r e a s o n i n g , i t s c o n s i s t e n c y w i t h e a r l i e r a n d l a t e r pronouncements, and all those factors which g ive it power toF E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 6

persuade, if lacking p o wer to control.” Skidmore
, 323 U.S. at 140.

D I SCUSSI ON

I

F enske seeks concurrent compensation for a “scheduled” injury ( hearing loss) under 33 U.S.C. § 9 0 8(c)(13) and total disability caused by his back injury

. Under the Act, a worker suffering permanent o r temporary total disability i s entitled
to two-thirds of his or her week l y wag e during the continuance of the d isability

. Id. § 9 0 8 ( a )
, ( b). Similarly
, a worker su f

f e ring a p ermanent p artial d isability under 33 U.S.C. § 908(c)(21) is entitled to two-thirds of his or her lost wag e-earning capacity f o r t he c ontinuance o f the disability

.

“Scheduled” losses, in contrast, a r e a set of common statutorily -enumerated permanent partial disabilities, such a s hearing loss, that are compensated at two-thirds of a worker’s weekly wag es for a number of weeks p r escr i bed by statute. See id. § 908(c)(1)–(20); see, e.g. , id. § 908(c)(1 3)(B ) (“Compensation for loss of hearing in both ears, two-hundred weeks.”). The le n g th of compensation is p roportionally shorter if the loss is not compl e te: a 25% loss o f h earing

r equires only fifty rather than two-hundred wee k s o f
pay ment. See id. § 908(c)(19).

W e have g enerally denied c oncurrent pay ments involving total disability because the A ct “invokes wag e -compensation principles rather than t o r t principles.” Rupert v. Todd Shipyards Corp.
, 239 F .2d 2 7 3, 274–77 (9th Cir. 1956) (per curiam) (deny

ing concurrent p ay

ments for permanent totalF E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 7

disability a

nd facial disfig urement, a scheduled loss under § 908(c)(20)). While tort principles seek to compensate a plaintiff for every injury wrong fully suffered, see Memphis C m t y. Sch. Dist. v. Stachura
, 477 U.S. 299, 306–07 ( 19 8 6 ) ; Dan B

. Dobbs, et al., The Law of Torts § 10 (2d e d. 2016),
wag e-compensation principles repay workers f or lost e arning capacity
, not the injury itself. Once a worker h as lost all earning c apacity throug h total d isability
, an additional award would constitute “double dipping ,” that is, the worker would be compensated “for a loss of earning ca pacity that is accounted for in another award.” Price , 382 F .3d at 885. 1

These principles and the rule a g ainst double d ipping a pply
t o scheduled losses. Rupert
, 239 F

. 2d at 275–76. The D. C

. Circuit has held that sched u l e d losses are “based upon a damag es concept rather than loss of wag e-e a r n ing c apacity ” because t h ey are paid reg ardless of a n actual loss in e arning capacity

. S

ee Henry v. George Hyman Constr. Co.
, 749 F .2d 65, 73 (D.C. Cir. 1984). H owever, a scheduled loss d isability only ex ists u nder the Act if there is an “incapacity

. . . to earn the wag es which the employ ee was [ previo u sly ] receiving

. ” 33 U.S.C. § 902(10). Rather than chang ing t h e Act’s underly ing wag e-compensation principles, s cheduled losses

ex ist to “ameliorate a

n otherwise intolerable administrative burden by providing a certain and easily applied method o f determining the effect on wag e e a rning capacity o f ty pical and cla s s i fiable injuries.” Rupert
, 2 39 F .2d at 275–76; see

1 W e h av e n ev er d irectly h eld th at th e d o u b le d i p p in g p ro h ib itio n ap p lies
to tem p o rary t o tal d isab ility u n der § 9 0 8 (b ). B ecau se Fen sk e’ s arg u m en t is p rem ised en tirely o n o u r h o ld in g in Price
, d escrib ed b elo w , w e n eed n o t reach t h e issu e h ere. S

ee Cru z v. In t’l Co llectio n Co rp

. , 6 7 3 F.3 d 9 9 1
, 9 9 8 (9 th Cir. 2 0 1 2 ) (“ ‘ W e rev iew o n ly issu es w h ich are arg u ed sp ecif

ically

an d d istin ctly

in a p arty ’ s o p en in g b rief

.’ ” (citatio n

o m itted )).F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 8

also Korineck v. Gen. Dynamics Corp. Elec. Boat Div.
, 835 F .2d 42, 43–44 (2d Cir. 1987).

I I

W h ile accepting the a

bove principles, F enske arg ues that he should b e paid a concurrent award b ased on our holding in Price

. There, the petitioner suffered a permanent p ar t i al disability under § 908(c)(21) and was awarded two-thirds of his lost e a r n i n g potential. P rice
, 382 F .3d at 882. Years later, Price suffered a second injury causing permanent total disability

. Id. W e held that u n der those circumstances,
concurrent pay

ments were warranted because th e later total disability award was based o n a wag e that had already been decreased b y the earlier partial disability

. Id. at 889; see also Hastings v. Earth Satellite Corp.
, 6 28 F .2d 85, 91 (D.C. Cir. 1980) (allowing con c u rrent p ay ments under similar circumstances).

F enske seeks to ex tend P rice ’ s holding bey o nd p e r manent partial disabilities u nder § 908(c)(2 1) to scheduled losses. W e need not address this issue: a prerequisite for apply ing the Price theory is that the pa r t ial d isability preceded the total disability

. B ecause F enske’s hearing loss did not precede his back injury
, Price does not apply

.

W h ile F enske was ex posed to ex c essive noise throug hout his e mploy

ment in I raq, the o nly evidence of his hearing loss

was an a udiog ram obtained on J une 4, 2009, four y ears a fter hi s e m p loy

ment ended. I n Bath I ron W orks Corp. v

. Director, Office of W

o rkers’ Compensation Progr a m s , the Supreme Court held that hearing loss is no t a latent disease involving a delay ed o nset of disabili t y

. 5 0 6 U.S. 153, 162, 165 (1993) (“

Bath Iron W

orks ”); see also 33 U.S.C. § 910(i).F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 9

I nstead, hearing loss “ occurs simultaneously w ith t h e

ex p osure to ex cessive noise” and “the injury is complete when the ex posure ceases.” Bath I ron W orks
, 50 6 U

. S

. at 165. As a result, the Court held that when a post-retirement audiog ram shows hearing l o s s , “the date of last ex posure— the date upon which the injury is complete—is the re l ev a n t time of injury for calculating a reti r e e ’s benefits for occupational hea r i n g l o ss.” I d. Under this rule, F enske’s date of last ex posure was the same day F enske suf f e red his back injury

and was forced to leave I raq.

F enske arg

ues that we should formulate an alternate rule based on the Supreme Court’s statement in Bath Iron W o rks that a h e aring loss injury “occurs simultane o u s l y with the

ex p osure to ex cessive noise.” I d. Althoug h not addressed b y Bath I ron W orks directly
, F enske’s arg ument is simply inconsistent w ith the brig ht-line date-of-last-ex posure ru l e adopted b y the Court. That rule “aids in the g oal of avoiding
unnecessary administrative difficulties and delay s” by not setting the date of disability on the ex act date of injury

. Ramey v

. Stevedoring Servs. of Am.
, 1 3 4 F.3d 954, 962 (9th Cir. 1 998) (citations and intern al quotation marks omitted). As an injury that prog resses with ex p o s u r e over time, determining the date and e x tent o f h e aring loss before the d a te of last e x posure would likely delay proceeding s a nd require more speculation than fact.

Additionally
, we h ave previously rejected attempts to set the date of hearing loss disability earlier than the date of last

ex p osure when the proof of earlier hearing loss was a ny thing less than a reliable audiog r a m. I n Ramey
, a worker obtained

an audiog ram during his employ m e nt and two other audiog rams after he retired, all of which showed hearing loss. Id. at 960–62. T he AL J f oun d o n e of the post-retirementF E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 10

audiog rams to b e the most r eliable a nd therefore “determinative.” Id. W e held that “the date of last ex posure prior to the determinative [ post-retirement] audiog ram” was the relevant d a te for disability benefits and reje c t e d t h e date
set by the less-reliable a udiog ram obtained during employ ment. Id. ; see also Stevedoring S ervs. of Am. v. Dir., OW C P
, 297 F .3d 797, 803–05 (9th Cir. 2002) (holding that

a reliable audiog r am o btained during employ ment can b e o ne of multiple determinative au d i o g rams). Here, F enske does
not even p r o vide unreliable evidence of hearing loss before his date of last ex posure to ex c essive noise.

I n a c as e where the only evidence of hearing loss is a post-retirement audiog r am, we hold that the Bath I ron W o rks rule applies when determining the timing of disabilities under Price

. F enske’s last day of ex posure to ex cessive noise was the same day

as his back injury

and Price does not apply

.

I I I

F enske requests that if the full measure of concurrent pay ments a re not available, he s h o u l d at least be provided a decreased award capped at two-thirds of his wag e u nder ITO Corp. of B altimore v. G reen , 185 F. 3 d 2 39 (4th Cir. 1999). There, the F ourth Circuit held that the tota l o f multiple

awar d s should have a ceiling of two-thirds of a worker’s
averag e weekly wag e—the amount awarded to a worker with
to t a l d i sability

. Id. at 242–43. T h is r elief would benefit F enske because his total disability a ward was capped b y § 906(b) a t 200 times the national averag e weekly wag e, an amount that was less than t w o

- t h i r d s of his averag e weekly
wag e for multiple y ears. The § 906(b) cap does not limit the total amount paid for multiple awards. Price
, 382 F .3d at 889–92.F E N S K E V

. S E R V I C E E M P L O Y E E S I

N T ’ L 11

This arg ument pro v i d es no a dditional rationale for allowing concurrent pay

ments. W e decline to provide the requested relief.

CONCL USI ON

Under wag e-compensati o n principles, concurrent pay ments for total disability and scheduled permanent partial disability are g enerally unavailable. The Price e x c eption does not apply because F enske’s hearing loss did not precede his back injury . W e DENY F enske’s petition for review.