Quarterly LHWCA Caselaw Summary highlights (posted December 3, 2024):
In Total Terminals International LLC v. Director, OWCP, the 9th Circuit held monaural hearing loss with binaural tinnitus should be compensated as monaural PPD, with no additional award for tinnitus. Previously, workers with monaural impairment and binaural tinnitus were compensated with a binaural PPD award. Monaural impairment was converted to binaural impairment, and the value for tinnitus was added to the binaural impairment percentage. The Court reasoned PPD under the LHWCA is paid for loss of hearing. Tinnitus is not loss of hearing and can only be added to binaural hearing (i.e., more than 0% impairment in both ears). Defense counsel filed a petition for panel rehearing and for rehearing en banc. As of December 3, 2024 the court has not ruled on the petitions.
In Ede v. ICTSI Oregon, Inc., the Board issued a published decision holding legal determinations, including whether modification for a mistake in fact would render justice under the act, are not facts that must be admitted or denied in response to Requests for Admission. Requests for Admission are limited to matters relating to facts, the application of law to fact, or opinions about either, but cannot be used to compel an admission of a conclusion of law.
In an unpublished decision, Morgan v. Teknotherm, Inc., the claimant, when at maximum medical improvement, could not perform the full extent of his regular duties as a welder, but he nevertheless secured employment in modified welding work for other employers. The ALJ based conclusions on residual earning capacity on the average of suitable jobs in a labor market survey. The Board remanded because the ALJ failed to consider if post-injury modified welding work was suitable alternate employment and if actual post-injury earnings fairly and reasonably represented wage earning capacity.
In Schulmeister v. Blackwater USA, also unpublished, the ALJ granted summary decision, concluding a prior settlement agreement precluded new litigation involving the same condition. The Board reversed and remanded because the ALJ resorted almost entirely to extrinsic evidence the Employer submitted without deciding if the agreement was ambiguous. Also, the ALJ did not view the evidence in the light most favorable to the claimant as the non-moving party.
