Fenske v. Service Employees International, Inc.
2016 U.S. App. LEXIS 15791
| 9th Cir. | 2016Background
- James Fenske, an Iraq truck driver, suffered severe back injuries on Oct. 9, 2005, when his vehicle was struck; he stopped working that day.
- An ALJ awarded temporary total disability (Oct. 9, 2005–July 27, 2008) and later permanent total disability from July 28, 2008 onward after modification.
- A June 4, 2009 audiogram (post-employment) showed bilateral hearing loss; parties stipulated to a 9.7% loss causally related to work.
- The ALJ and the Benefits Review Board denied concurrent compensation for the scheduled hearing loss while Fenske received total disability, relying on Board precedent.
- Fenske invoked the Ninth Circuit’s Price decision (allowing concurrent awards in certain time-staggered injuries) to justify concurrent payment; the Board denied and Fenske petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fenske may receive concurrent total-disability benefits and scheduled (hearing) benefits | Fenske: Price permits concurrent awards where a partial disability preceded and reduced the wage base later used for total-disability calculation; apply Price to get concurrent payment | Board/Director: General wage-compensation rule prohibits double recovery; Price applies only when partial disability preceded total disability | Denied — Price inapplicable because the hearing loss did not precede the back injury; last exposure = date of injury, so no time-staggered sequence |
| Whether scheduled hearing loss can be treated as a latent injury with an earlier disability date | Fenske: Hearing loss "occurs simultaneously with exposure" — argue for earlier effective date to fit Price | Board/Director: Bath Iron Works holds hearing loss completes at last exposure; post-retirement audiogram uses date of last exposure as date of injury | Held that Bath Iron Works controls: hearing loss is dated to last exposure (the day Fenske left Iraq), so it did not precede his back injury |
| Whether a reduced concurrent award capped at two-thirds of wage (per ITO Corp. of Baltimore v. Green) should be provided if full concurrency disallowed | Fenske: If full concurrency not allowed, adopt Green cap so total of awards does not exceed two-thirds of wage | Board/Director: No basis to adopt Green cap here; does not justify concurrent payments or alter double-dipping rule | Denied — court declines to provide ITO/Green-style relief and affirms refusal of concurrent awards |
| Standard of review / deference to Director’s litigation position | Fenske: N/A (procedural) | Board/Director: Director’s positions receive Skidmore deference depending on persuasiveness | Court applies de novo review to legal questions, Skidmore factors to Director positions; outcome turns on legal precedent (Bath Iron Works, Price) |
Key Cases Cited
- Stevedoring Servs. of Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (allows concurrent awards when partial disability preceded and reduced the wage base used for later total-disability award)
- Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153 (1993) (hearing loss completes at date of last exposure; use last exposure to date injury)
- Rupert v. Todd Shipyards Corp., 239 F.2d 273 (9th Cir. 1956) (articulates wage-compensation principles and rejects double recovery)
- Ramey v. Stevedoring Servs. of Am., 134 F.3d 954 (9th Cir. 1998) (reliability of audiograms and use of last-exposure rule for post-retirement audiograms)
- ITO Corp. of Baltimore v. Green, 185 F.3d 239 (4th Cir. 1999) (proposed ceiling that cumulative awards should not exceed two-thirds of average weekly wage)