Total Disability is the Maximum Compensation Allowed - Maritime Lawyer

The Parties

Mr. Maglione worked as a longshoreman for APM Terminals. APM Terminals is an international container terminal operating company. Its headquarters are in The Hague, Netherlands.

The Facts

Mr. Maglione filed a claim alleging that he sustained a hearing loss as a result of his occupational exposure to noise. This included exposure on his last day of covered work with APM Terminals on March 9, 2001.  However, Mr. Maglione had previously filed a claim for total disability benefits against multiple employers for orthopedic injuries sustained in work accidents on June 20, 1998, and April 16, 2000.  That claim was resolved in 2005 and Mr. Maglione received a lump sum settlement in the amount of $200,000.

Mr. Maglione officially retired from longshoreman work in 2003; however, he had rarely worked in 2001 and 2002, and he stopped working on March 9 of 2001.

Employment Conditions

The injuries

Mr. Maglione sustained hearing loss; more specifically, tinnitus, which is a type of ongoing noises or ringing in the ears.

The employer’s actions

Mr. Maglione filed his claim for hearing loss benefits on April 24, 2014. This was based on a doctor’s audiogram administered April 15, 2014. The results of the audiogram reflected a 12% binaural (relating to both ears) impairment, including tinnitus, or a 9.37% binaural impairment without tinnitus.  APM Terminals voluntarily paid Mr. Maglione permanent partial disability benefits based on the 9.69% binaural impairment found by their expert. APM Terminals also paid an average weekly wage and furnished medical benefits.

A dispute, however, arose over the appropriate permanent impairment rating, as well as Mr. Maglione’s average weekly wage and corresponding compensation rate.  The case was then referred to an administrative law judge for adjudication.

Results of the Initial Hearing

APM Terminals moved for summary judgment (summary judgment is a judgment entered by a for one party and against another party summarily, without a full trial or hearing). The ground was that Mr. Maglione had, through APM Terminals’ voluntary payment, already received all of the permanent partial disability benefits owed him under the Longshore and Harbor Workers’ Compensation Act for his work-related hearing impairment.  Mr. Maglione opposed APM Terminals’ motion.  The administrative law judge granted APM’s motion for summary decision and, as a result, denied Mr. Maglione’s claim for additional benefits.

The Appeal

Mr. Maglione challenged the administrative law judge’s decision to grant APM Terminals’ motion for summary decision and to deny his claim for additional benefits.  He also contended that the administrative law judge erred in denying his claim for additional hearing loss benefits. This was based on the administrative law judge’s finding that Mr. Maglione had no average weekly wage on March 9, 2001. That was because this was the date of Mr. Maglione’s last occupational exposure to noise. Therefore, the administrative law judge ruled that Mr. Maglione suffered no loss of earning capacity as a result of his hearing loss.  In this regard, Mr. Maglion maintained that neither party proposed an average weekly wage of zero for him as of the date of his last exposure to injurious noise on March 9, 2001.

In addition, contrary to the administrative law judge’s implicit finding, Mr. Maglione argued that the settlement of his prior claims resulting from the June 1998 and April 2000 work injuries was not for permanent total disability.  Mr. Maglione also contended that the administrative law judge’s initial decision improperly “extinguished all benefits including medical benefits and compensation for the permanent impairment resulting from the exposure at work to injurious levels of noise.”

The Ruling on Appeal

The administrative appeals judges vacated the administrative law judge’s decision granting APM Terminals’ motion for summary decision. In addition, they remanded (returned it to the administrative law judge for reconsideration) the case.  The administrative appeals judges determined that the administrative law judge erroneously granted APM Terminals’ motion for reasons “independent of the motion,” without first giving the parties notice and the opportunity to respond to this particular position.  As Mr. Maglione correctly contended, neither party asserted that Mr. Maglione had no average weekly wage as of March 9, 2001.  Rather, each party proposed an average weekly wage calculation under Section 10(c) of the Act, 33 U.S.C. §910(c), as of March 9, 2001.

On remand, the administrative law judge may rule on APM Terminals’ motion for summary decision on the grounds specifically raised by APM Terminals and opposed by Mr. Maglione. And this would be in accordance with law. However, alternatively, the administrative law judge could issue a “decision independent of the motion,” provided he gave the parties “notice and a reasonable time to respond” to the grounds as identified by the administrative law judge.

In this respect, the administrative appeals judges felt that it appeared that the administrative law judge’s denial of benefits was based, in part, on a finding that Mr. Maglione was already totally disabled as of March 9, 2001. However, the legal framework for this finding was not articulated in the administrative law judge’s decision.  Note that a claimant may not receive a scheduled permanent partial disability award for one injury and a total disability award for another injury at the same time, as no claimant can receive compensation greater than that for total disability.

The administrative appeals judges further noted that  in a case in which a claimant sustains two injuries, one of which is totally disabling and the other which would result in a scheduled award, the claimant can receive scheduled benefits only where he is able to show that the permanently partially disabling injury occurred prior to the onset of total disability.  Under such circumstances, the claimant may only recover scheduled benefits accruing between the onset of partial disability and the onset of total disability.

The Takeaway

Total disability, as might be expected, is the ceiling when it comes to benefits. Just because a claimant such as Mr. Maglione has more than one injury requiring a disability rating, that does not mean that he can get any compensation beyond total disability.