Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 128
February - March 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Acting Associate Chief Judge for Black Lung
A. United States Supreme Court
In Ingalls Shipbuilding, Inc. v.
Director, OWCP, ___ U.S. ___, Case No. 95-1081 (1997), the Supreme Court held that
an injured worker's spouse is not a "person entitled to compensation" within the
meaning of § 33(g) of the Act and does not forfeit the right to collect death benefits under
the Act for failure to obtain prior written approval by the employer of settlements entered into
before the worker's death. In so holding, the court stated that the "relevant time for
examining whether a person is entitled to compensation' is the time of settlement."
[ 33.6, "person entitled to compensation" defined ]
B. Benefits Review Board
In Roberts v. Alabama Dry Dock & Shipbuilding Corp., ___
B.R.B.S. ___, BRB No. 96-515 (Jan. 10, 1997), the Board held that, in the case of a voluntary
retiree, where one carrier was on risk at the time of the 1987 audiogram and another carrier was
on risk at the time of a 1989 audiogram then:
. . . on the facts presented in this case, we hold that the responsible party for
claimant's hearing loss benefits is the one on the risk immediately prior to May 1,
1987, the date of the determinative audiogram yielding the highest impairment
rating, as this date represents the date of onset of claimant's disability.
The Board noted that the 1989 audiogram did not reveal any aggravation of Claimant's hearing
loss such that it "could not have contributed causally to the compensable hearing
loss" and, therefore, the carrier on risk during the time of the second audiogram was not
liable.
[ 8.13.8, hearing loss and proving disability at last exposure ]
In Rochester v. George Washington University, ___ B.R.B.S. ___,
BRB No. 93-2124 (Jan. 17, 1997), the Board reiterated that "Section 8(i) settlement
agreements are final under the Act and may not be reopened pursuant to Section 22, even in its
pre-1984 Amendments incarnation." The Board determined that "while claimant (in
this case) may now possess new medical literature which may have bolstered the theory of his
case in 1983, he is simply precluded at this late date from setting aside the accord on the grounds
specified in Section 22." The Board noted that "[e]quitable concerns do not come
into play."
[ 8.10.8, section 22 modification of settlement agreement ]
In Morgan v. Ingalls Shipbuilding, Inc., BRB Nos. 95-2152 and
95-2152A (Feb. 4, 1997)(unpublished), the Board addressed a "hand-arm vibration
syndrome" (HAVS) case for the first time. The Board affirmed the administrative law
judge's determination that Claimant suffered disability due to carpal tunnel syndrome, which was
classified as an occupational disease under the facts of the case. The administrative law judge
rejected a diagnosis of HAVS in favor of carpal tunnel syndrome based upon the facts of the
case, but the judge did conclude that HAVS is a bonafide occupational disease. The Board
upheld the award of benefits based upon carpal tunnel syndrome without directly addressing the
merits of the HAVS claim except to acknowledge that HAVS is a type of repetitive strain injury
recently recognized as an occupational disease by the National Institute of Occupational Safety
and Health (NIOSH).
