Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs – Oral Argument – November 04, 1992

Media for Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs

Audio Transcription for Opinion Announcement – January 12, 1993 in Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs

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William H. Rehnquist:

We’ll hear argument next in Number 91-871, Bath Iron Works v. the Director of the OWCP.

The spectators are admonished, do not talk until you get outside.

The court remains in session.

Mr. Gillis, you may proceed whenever you’re ready.

Kevin M. Gillis:

Mr. Chief Justice and may it please the Court:

This case involves the question of interpretation of the Longshore and Harbor Workers Compensation Act as amended in 1984, as it applies to claims by retired workers for occupational hearing loss.

The facts are quite simple.

Mr. Brown, the plaintiff, worked for the employer, Bath Iron Works, in Bath, Maine, from 1939 until his retirement in 1972.

In 1985, 13 years after his retirement, he filed a claim for occupational hearing loss under the act.

That claim was based upon an audiogram taken in 1983, which showed an 84 percent hearing loss.

That award was made under section 908(c)(13) by the administrative law judge.

The issue as presented is whether certain amendments to the act in 1984 applying to occupational disease claims by retirees should have been applied to determine this worker’s claim, or this worker’s benefit.

The U.S. Court of Appeals for the First Circuit below held that the occupational disease amendments in 1984 were not applicable to hearing loss claims and would not affect this case.

Previously, the administrative law judge on the Benefits Review Board of the Department of Labor had held in this case that the occupational disease law amendments would apply for the limited purpose of determining the average weekly wage for the purpose of calculating benefits, but that they were otherwise not applicable to hearing loss claims.

In other cases, the Fifth and Eleventh Circuits have held that the occupational disease amendments in 1984 do apply to hearing loss claims and subsequently the Department’s Benefits Review Board earlier this year reversed itself and has agreed with the Fifth and Eleventh Circuits.

Our position is that the amendments do apply.

In order to analyze the problem, it is necessary to review the statute as it existed prior to 1984 and the case law under the pre-’84 statute.

Prior to the amendments, the statute provided for two basic types of disability benefits.

The one would be a nonscheduled award, or an award for economic disability.

That comes into play when the worker is disabled by injury or disease from performing his regular work.

He could have received benefits for total or partial benefits which could be temporary or permanent.

The second basic type of award is a so-called scheduled award, found in sections 908(c)(1) through (20).

That award compensates the worker for specific losses of bodily parts or bodily functions or percentages of loss.

Among the types of scheduled award is a hearing loss under section 908(c)(13).

Early in 1984, the Benefits Review Board issued two decisions having to do with retirees claiming occupational diseases.

The first was Aduddell v. Owens-Corning.

In that case, the worker had developed asbestos-related disease but had retired before the disease became manifest.

It was ruled that the worker was not entitled to a nonscheduled disability benefit because of his status as a retiree, the reasoning being that because he had retired he was out of the labor force and it was inappropriate to provide him with a disability benefit.

Less than a month later, the board decided Redick v. Bethlehem Steel, which was a claim by a retired worker for benefits under section 908(c)(13), a scheduled award for hearing loss, and following Aduddell, the board held that the worker was not entitled to the award because of his status as a retiree at the time the hearing loss became manifest.

Against this background, Congress amended the statute in 1984 in part dealing with the problem of occupational disease claims by retirees, and our position is that those amendments were intended to apply to hearing loss claims just as to other occupational disease claims.

Kevin M. Gillis:

A starting point for analyzing the statute… that is, the amendments… is section 910(i), which I’ll refer shorthand as section 10(i).

That section provides essentially that in occupational disease claims the time of injury for the purpose of determining the average weekly wage is the time when the occupational disease becomes manifest to the worker, when he becomes aware of it, or should have become aware of it.

That is the disability.

That is, when the worker becomes aware of the disability.

Sandra Day O’Connor:

Now, in this case, do you concede that the hearing loss actually occurred during a time he was employed actively?

Kevin M. Gillis:

I think it depends on which hearing loss you’re referring to.

The hearing loss of 84 percent didn’t occur until 1983.

We have no way of knowing whether it occurred… whether it was present at the time he retired, and that’s because of the effect of aging, so that the disability that became manifest to the worker in 1983 and for which he was entitled to claim in all likelihood didn’t occur at the time he retired.

Sandra Day O’Connor:

But some basic loss–

Kevin M. Gillis:

Some of it–

Sandra Day O’Connor:

–Occurred–

Kevin M. Gillis:

–Yes.

The Director has attempted to make–

Sandra Day O’Connor:

–Earlier.

Kevin M. Gillis:

–That distinction, that hearing loss due to excessive noise in an occupational setting occurs shortly after the injurious stimulus occurs.

Sandra Day O’Connor:

Do you disagree with that as a–

Kevin M. Gillis:

No.

I agree with that basic premise–

Sandra Day O’Connor:

–Medical proposition?

Kevin M. Gillis:

–That basic theory, but I just feel it doesn’t go far enough because it doesn’t concentrate on the disease that becomes… or the disability that becomes manifest later to the worker.

David H. Souter:

Yes, but we have no question before us here as to the extent to which that greater disability may even be compensable.

The only issue that we have is whether the hearing loss resulting from the occupational conditions was manifest in a manner in which it could or should have been perceived during the period of employment, and that is conceded, isn’t it?

Kevin M. Gillis:

The hearing loss wasn’t manifest during the period of employment, the hearing loss wasn’t manifest–

David H. Souter:

Well, the fact that he had an 84 percent hearing loss at some later time presumably was not manifest earlier, but that’s not the issue that we’re dealing with.

Kevin M. Gillis:

–We’re dealing with the issue of whether–

David H. Souter:

We don’t even know whether he’s entitled to compensation or an 84 percent hearing loss.

That’s not the issue in this case.

Kevin M. Gillis:

–That’s not the issue.

In fact, we would concede that he is entitled to that, because there was no offset under this statute for the effects of aging.

As we pointed out in our brief–

David H. Souter:

You would concede that he is entitled to compensation for 84 percent?

Kevin M. Gillis:

–And the question is, under which provision of the law–

David H. Souter:

I mean, that’s a generous concession for you to make, but–

Kevin M. Gillis:

–I guess I may be misleading in that way.

What I mean to say is, he’s entitled to an award based upon that audiogram in 1983.

The question is whether the compensation should have been under section 908(c)(13) or under section 908(c)(23).

David H. Souter:

–And whether it should or should not be depends upon which the hearing loss… depends upon whether the hearing loss attributable to the occupational conditions… the injury attributable to the occupational conditions occurred during the period of employment and whether that loss was manifest or should have been manifest during the period of employment.

That is correct, isn’t it?

Kevin M. Gillis:

I guess I would change that a little to say that it depends on whether the disability that became manifest to the worker became manifest before or after the retirement.

David H. Souter:

Well, except that that, as I understand it, is not the standard.

The standard is not whether it was manifest to him, the standard is whether it was either known or should have been known, and I presume that means that following exposure to conditions that would naturally harm his hearing, he could have had an audiogram and discovered his disability then.

He loses nothing by waiting, because we have the savings clause now that the period for application is not lost, but the fact is the point at which the injury is measured doesn’t depend on whether he perceived the loss as a fact or not, isn’t that correct?

Kevin M. Gillis:

I think that the provision under which he’s compensated does depend on when the hearing becomes manifest in terms of when it’s measured.

A worker–

David H. Souter:

No, but I… excuse me, I’m not making my question clear.

Do you concede that whether or not… excuse me.

Do you concede that the point at which the injury occurred does not depend merely on whether he perceived it but on whether he perceived or should have perceived it?

Kevin M. Gillis:

–I think that the time when the injury occurred, what we’re referring to is the time of injury under section 910(i), and I think that depends on when the worker knows or should have known–

David H. Souter:

Should have known.

Kevin M. Gillis:

–Of a disability.

David H. Souter:

Okay.

Kevin M. Gillis:

And my point would be that in the case of hearing loss, a worker cannot know of a disability, which is an impairment measured by a hearing test, until the hearing test is taken.

Antonin Scalia:

But that’s not how 10(i) reads.

It reads, with respect to a claim for compensation for death or disability due to an occupational disease which does not immediately result in death or disability, and I understand it to be conceded that the hearing loss here immediately occurs when he’s working and his ears are invaded by excessive noise, that the injury immediately results, therefore 10(i) is inapplicable.

Kevin M. Gillis:

I think that the question is what disability is Congress referring to when they refer to, does not immediately result in death or disability, and our position is that the disability that’s important is the disability that becomes manifest in the disability which the worker can claim.

It’s true that the occupational component of the hearing loss results immediately or virtually immediately.

Antonin Scalia:

But that’s all the section talks about… disability due to an occupational disease which does not immediately result in death or disability.

Kevin M. Gillis:

But I think that the first and the third references to disability in the statute refer to something else, and that the disability should be read consistently.

That is, each reference to disability should be read consistently.

The–

Anthony M. Kennedy:

I have a problem that’s a slightly… it’s a threshold problem on this same section while you’re on it.

I don’t mean to interrupt your answer to Justice Scalia, but I have trouble seeing why is this an occupational disease at all?

Kevin M. Gillis:

–Well–

Anthony M. Kennedy:

Why isn’t it an injury?

Kevin M. Gillis:

–Because the distinction between an injury and an occupational disease is that an injury happens because of a sudden event, where an occupational disease occurs over a long period of time, evolves over a period of time, and occurs not because of an accident or a sudden event, but because of the characteristics of the particular industry.

Anthony M. Kennedy:

Are you saying that a hearing loss is an occupational disease as opposed to an accidental injury?

Kevin M. Gillis:

Yes.

There can be cases where a sudden event can cause hearing loss, such as an explosion.

Anthony M. Kennedy:

Well, doesn’t the act in 902 define accidental injury and occupational disease as two different things?

I’m just having trouble applying the statute at all.

If you could get over this threshold problem, I’m sure there’s an answer to it.

Then we could pursue the question as to when it occurs.

Kevin M. Gillis:

Right.

The statute describes an occupational disease as arises naturally out of such employment.

In the case of, for example, a shipyard, the disease naturally results from the condition of employment, and we’ve cited in the briefs–

Anthony M. Kennedy:

But there’s still a difference between an occupational disease on the one hand and an injury on the other–

Kevin M. Gillis:

–That’s correct.

Anthony M. Kennedy:

–And it seems to me that all that this statute does is to talk about occupational injuries, so that you’re not within it anyway.

Kevin M. Gillis:

When you say this statute, you refer–

Anthony M. Kennedy:

910(i).

Kevin M. Gillis:

–I think it’s been held repeatedly that hearing loss is an occupational disease by the various circuit courts.

Anthony M. Kennedy:

And they have addressed this subject specifically.

Kevin M. Gillis:

Yes.

Byron R. White:

And the Director doesn’t claim otherwise, does he?

Kevin M. Gillis:

That’s correct.

Byron R. White:

And by the way, your position is at odds with the Director’s position.

Kevin M. Gillis:

Correct.

Byron R. White:

Do you think that your interpretation of the statute is the only permissible one?

Kevin M. Gillis:

I think it’s the only plausible one, yes.

Moving from section 910(i), in the case where the time of injury is after retirement, section 910(d)(2) determines the average weekly wage, depending on whether it is within a year or after a year of retirement.

Kevin M. Gillis:

In cases in which section 910(d)(2) applies, section 908(c)(23), enacted in 1984, creates a new type of benefit for retirees who claim occupational disease, and that section must apply if section 910(d)(2) applies.

Antonin Scalia:

Can you tell me again why you say that the time of injury is after retirement?

I’m… why–

Kevin M. Gillis:

Because it is the date of manifestation… that is, the date when the worker knows he has a disability.

That is the time of injury for several purposes.

The legislative history makes reference after reference to its concerns with the date of manifestation as being the time of injury rather than the date of last exposure.

Antonin Scalia:

–But then 10(i) becomes circular.

10(i) says with respect to a disability which does not immediately result in disability, the time… in death or disability, an occupational disease, a disability due to an occupational disease which does not immediately result, the time of injury shall be deemed to be the date… shall be deemed to be the date on which the employee or claimant becomes aware.

I mean, that’s why you need that section.

You wouldn’t need that section if the natural order of things is that the time that an injury occurs is the time that you become aware of it.

It’s only 10(i) that produces that result for certain types of injuries.

Kevin M. Gillis:

But without 10(i), the time of injury for average weekly wage purposes would be the date of last exposure, and the legislative history makes it clear that Congress did not want that result at all.

Congress wanted the time of injury to be the date of manifestation, at which time we determine the worker’s wage, at which time his time for filing begins to run, and in the case where the time is after retirement, there are special provisions.

We have to remember that before the enactment of these provisions under Redick and Aduddell, the worker whose time of injury was after retirement would have been denied benefits all together.

Antonin Scalia:

Let me put it… it seems to me that you’re saying 10(i) applies here because this is an injury that occurred after retirement, and then I ask you why this is an injury that recurs after retirement, and you say, because 10(i) says that it shall be deemed to be an injury that recurs after retirement, but you don’t get into 10(i) to begin with unless it is an injury that occurs after retirement, so you can’t appeal to 10(i) as the justification for your assertion that this injury occurred after retirement.

Kevin M. Gillis:

10(i) doesn’t deal with retirement at all.

10(i) deals with the case… this simply establishes that the time of injury is as of the date of manifestation.

10(d)(2) deals with retirement.

Antonin Scalia:

No, but it… 10(i) deals with retirement inasmuch as you only qualify for 10(i) if the injury does not occur immediately… that is, while you’re still working, okay… and I ask you why this injury didn’t occur immediately, and you say, well, because 10(i) says it shall be deemed not to have occurred until you find out about it, but you don’t get into 10(i) unless it did not occur immediately.

Kevin M. Gillis:

In the case of any occupational disease, the disability can occur while the worker is still working.

You can develop asbestosis while you’re still working.

Well, you’re still under 10(i).

Your time of injury is simply the date of manifestation.

If that then happens to be after–

Antonin Scalia:

Yes.

Kevin M. Gillis:

–Retirement, you’re in 10(d)(2).

Antonin Scalia:

That is because asbestosis is not a disease which immediately results in disability, but I thought that it had been conceded here that the hearing disability occurs immediately.

Kevin M. Gillis:

Again, we have to refine that to mean… to determine whether we’re talking about a disability that the worker can claim, and the disability that later becomes manifest on the one hand, or just the occupational component of the disease, which may not be manifest to the worker.

I think the real question is did Congress intend to make this distinction between long latency diseases and other types of occupational diseases.

Although it is an interesting distinction to draw, there’s no evidence that Congress was even aware of the distinction or intended to make the distinction in excluding hearing loss from 910(i).

Kevin M. Gillis:

The legislative history makes it clear that Congress was aware of Redick–

Sandra Day O’Connor:

But you do concede that in medical terms anyway the hearing loss, the compensable hearing loss that we’re talking about, occurred before retirement.

The physical injury occurred before retirement.

Kevin M. Gillis:

–The–

Sandra Day O’Connor:

The damage to the ear–

Kevin M. Gillis:

–Caused by the employment, but not the compensable hearing loss which you made reference to.

The compensable hearing loss is the entire hearing loss, which may have an aging component as well.

Sandra Day O’Connor:

–Okay.

If the employer… this is a side question, but if the employer can establish that a portion of the hearing loss is due solely to aging, nothing to do with the employment, must the employer compensate the employee for that age-related damage?

Kevin M. Gillis:

Yes.

Yes, and that’s why I think the distinction is important.

David H. Souter:

Well, you don’t deny, do you, that if following the date of his first exposure to noise he said I wonder if I had a hearing loss, and he went to… what is it, an audiologist, and had his hearing measured, and the finding was that he had suffered a 5 percent hearing loss and he could show that that was attributable to the noise, you don’t deny that that would have been compensable right then and there, do you?

Kevin M. Gillis:

That would be compensable, yes.

David H. Souter:

Okay.

Kevin M. Gillis:

I agree with that.

As I mentioned, the court… the Congress was aware of Redick and had to do… and wanted to do something about it, and if section 910(i) does not apply to hearing loss claims, then there’s nothing else in the statute that would change the result of Redick.

David H. Souter:

Well, except that there… Redick is… or the desire to respond to Redick is satisfied simply by extending the date within which claim may be made, isn’t that true?

Kevin M. Gillis:

I don’t believe so, because Redick… the claimant in Redick was not denied benefits because he had filed his claim late under section 913 or because he gave notice late under section 912.

Mr. Redick was denied benefits simply because he was a retiree, so–

David H. Souter:

But without an extension of the time within which claim would have been made, he would have been out anyway, wouldn’t he, so Congress could have said this will satisfy the problem of allowing Redick… allowing Redicks of this world to come in and make their claim, and because we assume that the injury is complete at the date at which it occurs, there will be no problem for them.

Kevin M. Gillis:

–It’s not clear whether Mr. Redick would or would not have had a problem with notice in the statute of limitations if he would had gotten over the retiree provisions.

I don’t believe there’s anything in Redick that tells us that.

It’s very arguable that if he had given notice and had filed his claim very quickly after he got his audiogram after he retired, he would have been all right under those provisions.

I don’t think we know that, and so that change doesn’t necessarily do anything about Redick.

John Paul Stevens:

May I just ask you a question?

You say he was… in the… I haven’t read the Redick case.

I thought I understood it from the briefs.

But you say he was denied compensation simply because he was a retiree and not–

Kevin M. Gillis:

Right.

John Paul Stevens:

–Right.

John Paul Stevens:

Now, supposing he had had a claim for a loss of leg, or loss on one of the other scheduled benefits which he didn’t file until after he was a retiree.

Would he have lost his benefit?

Kevin M. Gillis:

No, I don’t believe so, because his–

John Paul Stevens:

Then why are they different?

Kevin M. Gillis:

–Condition arose before retirement.

John Paul Stevens:

Well, but why is that… why is the hearing loss claim different if it arose before retirement, if he in fact… you know, the noise around the place caused him to lose some hearing?

Kevin M. Gillis:

I guess the question that you’re asking is, was Redick wrongly decided?

John Paul Stevens:

Yeah, I think Redick may well have been wrongly decided.

Kevin M. Gillis:

It very well may have been, and I think the important point is not whether it was or it was not, or whether it was fair or unfair, but the question is, what did Congress intend to do in light of Aduddell and Redick?

John Paul Stevens:

Well, of course, they did at least take care of the cases like asbestosis, or however you pronounce it, where the injury does not really manifest itself until 2 or 3 years later, and they may have thought hearing loss was the same, but maybe they’re wrong about hearing loss, and maybe hearing loss does… you know, is an injury before retirement and therefore should be treated like a loss of leg.

Kevin M. Gillis:

And the real question is whether Congress thought that hearing loss was different… not whether it is or it isn’t, but what Congress intended.

Antonin Scalia:

Well, is that the case?

I mean, if… you know, if Congress says in a statute that X is true, or X will be the result whenever Y is true, thinking that Y is true in some situations where in fact it isn’t true, we rewrite the statute to say that X is the result even where Y is not true because Congress thought that Y was true?

Kevin M. Gillis:

I think the–

Antonin Scalia:

I don’t think we do that.

Kevin M. Gillis:

–I think the congressional intent has to be followed unless there’s some constitutional problem with it.

I think it–

Antonin Scalia:

Even if it’s contrary to the language of the statute?

Kevin M. Gillis:

–Well, what we’re trying to determine is what Congress intended with the language of the statute.

Antonin Scalia:

Oh, but that’s quite different what you said… I thought you were saying even if Congress put it incorrectly we’re bound to follow… to do what Congress thought it was doing even if it ended up doing something else.

You don’t support that.

Kevin M. Gillis:

The point I’m trying to make is that Congress did not intend to draw a distinction between hearing loss and other occupational diseases along the lines that the Director suggested, and the reason I say that is that first Congress intended to do something about Redick.

Secondly, Congress repeatedly in the legislative history mentions the problem that the disability from occupational diseases do not become manifest until oftentimes long after the injurious exposure occurs.

Hearing loss is that type of disease.

It doesn’t become manifest until the worker happens to have his hearing tested, and that could be either before or after retirement.

William H. Rehnquist:

Well, just as a practical matter, you know, if I’m exposed to something that causes me to lose my hearing and I find I used to be able to hear Justice Blackmun quite well when he whispered to me, but now I can’t hear him at all, I don’t need a hearing test to tell me that I’ve lost my hearing, do I?

Kevin M. Gillis:

Well, you may feel subjectively that you’ve lost your hearing, but you may not have what a hearing test would show is an AMA percentage of hearing impairment.

William H. Rehnquist:

Well, so you say the only way that something… a disease or injury can manifest itself is if there’s some medical test that is performed to show it?

Kevin M. Gillis:

In the case of hearing loss, I would.

William H. Rehnquist:

Well, what if I break my arm.

William H. Rehnquist:

That manifests itself rather dramatically, doesn’t it, without necessarily going to a hospital and having an X-ray?

Kevin M. Gillis:

I agree with that, but… and you would know your disability if you couldn’t work, but here we’re dealing with injuries as opposed to an occupational disease that evolves over time, and again I think that the date of manifestation and hearing loss is when the hearing is tested and an AMA disability can be determined.

Antonin Scalia:

Mr. Gillis, can I follow up on a question that Justice O’Connor asked you?

You acknowledged in response to her question that the hearing loss occurs immediately at the time of employment when the… and is it not also true, or is it conceded that it does not get any worse?

If you lost 15 percent, you’ve lost 15 percent, and it stays 15 percent.

Now, you may only notice it later, but it doesn’t progressively increase.

Kevin M. Gillis:

The occupational component of it doesn’t.

Antonin Scalia:

Well… which is to say you may have hearing loss from some other causes as well.

Kevin M. Gillis:

That can continue after, for example, a retirement.

John Paul Stevens:

Oh, sure.

I mean–

Kevin M. Gillis:

Particularly aging.

Antonin Scalia:

–Somebody else can shoot a gun in your ear or something like that, and you’d lose your hearing, but the effect of the occupational activities that caused your hearing loss does not increase afterwards.

It occurs at once, and that’s the end of it.

Kevin M. Gillis:

I agree with that statement, yes.

If there are no further questions at this time I would reserve my remaining time.

William H. Rehnquist:

Very well, Mr. Gillis.

Mr. Lupton, we’ll hear from you.

Ronald W. Lupton:

Mr. Chief Justice, and may it please the members of the Court:

Unlike Mr. Gillis, who represents Bath Iron Works, and Mr. White who represents the Director, Department of the… a portion of the Department of Labor, I represent a single individual, Mr. Ernest Brown.

My main point in being here today is to argue that Mr. Brown should be allowed to keep his award.

It is my understanding that the Director concedes that he should be allowed to keep the award which was given to him by the administrative law judge many years ago, subsequently affirmed by the Benefits Review Board.

The court below, the First Circuit, found on the final page of its opinion that the issue of whether or not Mr. Brown’s benefit should be recalculated has been waived.

So my initial point would be that the matter of the amount to which Mr. Brown is entitled has been finally determined… it is not questioned before this Court… so that in the event the Court adopts the position of the First Circuit, or adopts the position which was formally held by the Benefits Review Board, Mr. Brown is allowed to keep the benefits which he has already been awarded.

John Paul Stevens:

I didn’t understand the waiver to be quite as broad as you say.

I think what they said was that if you use the calculation based on sub-paragraph 13, there’s no change, because the fact that it’s gone from whatever it might have been at the date of retirement to 82 percent shouldn’t change that calculation, because we don’t know what it was at retirement, but they are arguing that if you use section 23 you’ll get a different answer–

Ronald W. Lupton:

That is correct, you will get a–

John Paul Stevens:

–And that’s not waived.

Ronald W. Lupton:

–You will get a very different answer.

John Paul Stevens:

Yes.

Ronald W. Lupton:

But the specific issue of whether the case should be sent back for a recalculation of this individual’s award has been held to have been waived by the First Circuit.

Antonin Scalia:

Under that section, under 13, not under 23.

I mean, I don’t understand.

Are you saying it doesn’t matter how we come out in this case, your client’s going to come out with just as much money?

Ronald W. Lupton:

That’s correct.

Antonin Scalia:

What are you here for, then?

Ronald W. Lupton:

Because–

Antonin Scalia:

I don’t understand.

Ronald W. Lupton:

–I’m sorry.

Because the specific issue of whether or not this individual’s benefits should be recalculated in this particular case was waived.

William H. Rehnquist:

Do we have a case of controversy before us if it’s a matter of indifference to your client?

Ronald W. Lupton:

If the Court accepts that argument… the waiver argument.

If, however, the Court adopts the schedule adopted by the First Circuit, if it upholds the First Circuit, benefits… and benefits are recalculated, the amount to which my client is entitled will be approximately one half of what he has already received.

If the Court accepts the position which was formerly held by the Benefits Review Board, it will effectively reduce the amount of compensation to which he’s entitled by about one third, so we certainly have a case of controversy if the Court decides that these benefits should be recalculated.

On the issue of which particular system Congress intended to use in this matter, let me first address the position taken by the Director.

The Director says that the retiree amendments which Congress enacted in 1984 simply do not apply, and we get back again, as the Court did earlier in Mr. Gillis’ argument to section 10(i).

10(i) applies only if the disease does not immediately result in disability.

The Director argues that because there is an immediate injury, that is, when the worker is exposed to noise he has an immediate injury, section 10(i) does not apply.

If the Court reviews the definition of disability which is contained in the statute… and remember, 10(i) only applies if the disability does not immediately occur.

The definition of disability states that there must be a loss of wage-earning capacity.

David H. Souter:

Well, that’s not true if it’s a scheduled… if it’s scheduled, isn’t it?

Ronald W. Lupton:

That’s correct, Your Honor, but for the purposes of section 10(i), which doesn’t refer to scheduled awards, it simply says in the case of an injury which does not immediately result in disability, then you have to go and read the section which defines disability, section 210.

Disability is defined as a loss of wage-earning capacity, or, for retirees, as a permanent impairment assessed under the guides of the American Medical Association.

Under no theory, or under no facts in this case, did Mr. Brown’s hearing loss immediately result in a disability.

First, he continued to work throughout his entire working life and retired in 1972, voluntarily for reasons totally unrelated to his hearing loss.

He had no disability in that sense.

Secondly, the treatises cited by the Director show that hearing loss progresses over time.

There is an initial injury which continually gets worse.

It doesn’t simply happen, as if someone put a gun next to your ear and pulled the trigger.

This type of occupational noise-induced hearing loss as a medical proposition takes place over time.

Ronald W. Lupton:

The record reflects, in fact, that Mr. Brown had a 40 percent hearing loss in 1954.

There is no evidence in the record that that 40 percent hearing loss caused any impairment to his wage-earning capacity, and in fact, as I mentioned earlier, he continued to work for 18 more years.

Under the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, hearing loss again… occupational noise-induced hearing loss… does not immediately result in a disability.

The Guides to the Evaluation of Permanent Impairment say that you do not have an injury, a permanent impairment, until the hearing loss has progressed in the critical frequencies to a point where you have lost an average of 25 decibels of your hearing.

So under no… not under the facts of this case, nor under the medical opinions, nor under the phrasing of the statute, did Mr. Brown’s hearing loss immediately result in an injury.

The case does fall within section 10(i).

The question then is, having once fallen within section 10(i), you then fall within what had been characterized as the retiree amendments in section 10(d)(2).

Those amendments talk about whether… at what point, rather, the hearing loss or the disability manifests itself?

Does it manifest itself within 1 year of retirement or after 1 year of retirement?

Section 10 is nothing other than Congress’ direction as to which wage is to be used.

Once all the other decisions in the case have been made, the court or the administrative body has to look at whether or not notice was filed in time, whether or not the claim was formally filed in time, whether or not the individual has, in this case a disability caused by noise, and then, after making all those findings, it simply goes to section 10 and says, what do we pay this individual?

What date do we use to calculate his average weekly wage?

That’s all section 10 is.

I would advocate in this particular case that the Court adopt a position which was utilized by Justice O’Connor in Perini North River.

In that particular case, the Court looked at the statute prior to, there, the 1972 amendments, to see if an individual was covered.

It reviewed the 1972 amendments and made a decision that the individual in that case would have been covered prior to the 1972 amendments.

Justice O’Connor then analyzed the legislative history in the wording of the statute and made a determination that Congress meant to expand coverage under the 1972 amendments and included that claimant.

Justice Stevens dissented in that case saying simply, if you read the statute… which is essentially what the employer in this case says… if you read the statute, you are forced to come to the position advocated by the employer.

Justice Stevens took that position in dissenting in Perini and said, if you read the statute as claimed, this man is not covered.

However, in that case, the Court did review the law prior to the ’72 amendments, reviewed the legislative history, and went on to decide the individual was covered.

If you take the same approach in this case, you will see that Mr. Brown could have been compensated prior to the 1984 amendments for his hearing loss.

There was no need for the so-called retiree amendments which we’re talking about in this case to have been enacted in order for him to have been compensated.

You will also see that hearing loss cases had historically been treated differently from other occupational disease cases under the act.

Hearing loss cases are the only scheduled occupational disease.

Mr. Gillis and the Court was discussing Redick earlier.

In that case, the Court decided, since Mr. Redick filed his claim following retirement, at which point he was not working and therefore suffered no wage loss, he could not then be compensated because he had no wage loss.

He had no loss of earning capacity.

The retiree amendments were enacted to deal with that sort of situation.

Mr. Brown could have been compensated prior to those amendments because case law established that the date of manifestation was his date of injury for the purposes of filing notice, for the purposes of filing his claim, and for the purpose of determining his average weekly wage.

It also established in Mr. Justice Stevens’ opinion in Potomac Electric, written in 1980, that hearing loss is a scheduled award.

Ronald W. Lupton:

Congress has presumed that the individual has a loss of wage-earning capacity simply if the injury is a hearing loss.

If you look at that decision and then look at Redick, you can see that Redick is plainly wrong because the Benefits Review Board, completely ignoring Potomac Electric, said we can’t compensate this gentleman because he has no loss of wage-earning capacity.

They simply didn’t review the law and see that was not part of the case.

Because hearing loss claims have always been the only statute under the schedule, there is a presumed loss of earning capacity.

A review of the 1984 amendments, which consumed 4 years’ worth of hearings, a review of the House amendments and the House proposals, and the review of the conference committee to see what ultimately came out, will show that hearing loss cases have been treated differently than other occupational disease cases, that Congress had no need to be concerned with hearing loss cases specifically because they could have been compensated without the ’84 amendments, that Congress was really working on compensating individuals who suffer from other types of long latency occupational diseases.

I agree for the most part with the position taken by the director.

The key difference is, I advocate the hybrid system which was until very recently utilized by the Benefits Review Board.

Basically, that system says hearing loss claimants who file after retirement are lumped in with other retirees for many purposes… for the purpose of when they have to file their notice, for the purpose of when they have to file their claim, for the purpose of determining their average weekly wage.

However, because hearing loss has historically been treated differently, when you come to calculate their benefits, they receive benefits under section 8(c)(13), which is a nonretiree provision of the statute.

It results for the most part in the employee receiving what he would have received had he filed his claim prior to retirement.

Byron R. White:

Well, I take it that in subdivision 13 dealing with hearing that it’s a permanent partial disability, isn’t it?

Ronald W. Lupton:

It is, Your Honor, yes.

Byron R. White:

So it is a disability, even though it doesn’t result in any proved loss of earnings.

Ronald W. Lupton:

It can, obviously.

If the hearing loss progresses to a point, you can have, but–

Byron R. White:

Well, I know, but you don’t have to prove it to get this compensation under 13.

Ronald W. Lupton:

–That’s correct.

Byron R. White:

You say it’s just because it’s presumed.

Ronald W. Lupton:

It is presumed.

The Court held in Potomac Electric that it is presumed.

When Congress set forth the schedule, sections 8(c)(1) through (20), they were saying that… Congress said if you have an injury which fits into this schedule you do not have to demonstrate you actually lost earning capacity or lost wages.

That is presumed.

You will receive the amount set forth–

Byron R. White:

Well, whether it’s presumed or not, if you get a toe cut off, whether you just go right on doing your job and everybody agrees that you’re just as good as you ever were, you’re earning just as much and you get salary increases or wage increases, you just don’t have to prove that there’s any loss–

Ronald W. Lupton:

–That’s correct.

Byron R. White:

–And the statute doesn’t provide for there being any loss.

Ronald W. Lupton:

The statute awards you benefits–

Byron R. White:

Yes.

Ronald W. Lupton:

–For that loss.

It makes it easier for you.

Byron R. White:

Yes, yes.

Ronald W. Lupton:

You don’t have to prove it.

Byron R. White:

It’s not too bad an idea to give somebody some money for getting a toe cut off–

Ronald W. Lupton:

I agree, and that’s why I say–

Byron R. White:

–And there’s nothing wrong with saying you’ve lost some hearing on the job, we’re going to pay you for it.

Ronald W. Lupton:

–Absolutely.

What I advocate is a system which would not reduce the award given to an employee who files his claim for hearing loss after retirement to meaningless levels.

In my particular case, what will happen is the difference between–

Byron R. White:

Well, suppose the day before he retired he had an audiogram and said I’ve lost hearing.

Ronald W. Lupton:

–Fine.

Byron R. White:

Well, he’s only going to get what 13 says he gets.

Ronald W. Lupton:

That’s correct.

Byron R. White:

But a day after he retires–

Ronald W. Lupton:

Under either of the other two theories he will receive less, especially under the theory advocated by the employer–

Byron R. White:

–Well–

Ronald W. Lupton:

–Because he will receive a small amount of money weekly for the balance of his life as opposed to the award under section 13.

Byron R. White:

–Well, I know, but why should it be different the day after he retires than the day he retires?

Ronald W. Lupton:

I don’t believe it should, Your Honor, and that’s my point.

Byron R. White:

Well, it isn’t.

You want to use this scheme that the Benefits Review Board was using.

Ronald W. Lupton:

And that’s… that is… if I can use your term, that is the scheme they adopted.

The scheme they adopted was to put him back into section 13 so he’d be compensated as though he had filed his claim before he retired.

William H. Rehnquist:

Thank you, Mr. Lupton.

Ronald W. Lupton:

Thank you.

William H. Rehnquist:

Mr. Wright, we’ll hear from you.

Christopher J. Wright:

Thank you, Mr. Chief Justice, and may it please the Court:

The Government agrees with the position adopted by the First Circuit in this case, and it said that subsection 13, the provision in the schedule that specifically applies to hearing loss cases, is the provision that should apply here, and we agree, Justice White, the result of that is that the hearing loss award, whether or not the claim is filed while you’re working or after you’re working, would be the same.

The employer in this case argues that subsection 23 should apply instead of the hearing loss provision and the employee should get less if he’s retired.

The employee in this case has endorsed the scheme that the Benefits Review Board came up with and has since abandoned, under which the employee would actually get more if the claim was filed after the employee retired.

The Benefits Review Board’s hybrid approach combines certain favorable aspects of subsection 23 and certain favorable aspects of subsection 13 to maximize the award.

Christopher J. Wright:

In his opinion for the First Circuit, Chief Judge Briar put his finger on the key statutory provision and the key fact in this case.

The key statutory provision is section 10(i).

That’s the provision that says that the rules that Bath Iron Works seeks to apply are applicable only to disabilities, quote, due to an occupational disease which does not immediately result in disability, unquote.

Anthony M. Kennedy:

Well, you agree, I take it… or do you +/?

that loss of hearing is an occupational disease.

Christopher J. Wright:

We have not challenged that, Justice Kennedy, and I should admit that the medical treatise on which we rely refers to occupational hearing loss as a disease.

You are correct in saying that the way it occurs it frankly sounds an awful lot like an injury.

The way occupational hearing loss occurs is that the sound waves generated by a loud noise batter the nerve endings in the inner ear and immediately cause them to become inflamed, which leads to an immediate loss of hearing.

It’s an assault which in many other cases would of course be considered an injury, but we have not argued about the word disease here, we’ve instead focused on occupational disease which does not immediately result in disability.

Antonin Scalia:

Well, it’s… yes.

Now, what do you do about the fact that the definition of disability seems to be tied to loss of wages and so long as the person’s in the same job, he has not immediately suffered any loss of wages?

Christopher J. Wright:

Well, our answer to that is, this Court noted in Pepco and has long been the rule, and I do not believe is challenged by any party to this case, is that scheduled injuries automatically call for recovery.

That’s always been the rule.

Byron R. White:

And loss of earnings is assumed.

Christopher J. Wright:

The loss of earning is presumed.

Byron R. White:

Which means that it’s a disability.

Christopher J. Wright:

That’s right.

Antonin Scalia:

So the definition of disability really is not… I guess it isn’t… 8(c)(13) doesn’t seem to use disability in the definitional sense either, because it says in the case of disability partial in character but permanent in quality.

Now, they’re not talking about a loss of wages that is partial in character but permanent in quality.

They’re talking about an injury that is–

Christopher J. Wright:

They’re talking about a loss of hearing which occurs immediately.

It would be nicer if there were something in the statute that said, by the way, everyone has always been correct that scheduled injuries–

Antonin Scalia:

–Well–

Christopher J. Wright:

–Are presumptive of disability.

Byron R. White:

–Section… subsection (c) describes… is dealing with what itself calls permanent partial disability.

Christopher J. Wright:

It says that hearing loss is permanent partial disability.

Byron R. White:

Yes, so they’re all disabilities.

Christopher J. Wright:

I agree that that’s right.

If you just looked at the definition of disability in section 2(10), it doesn’t make that as clear as it might, but no one challenges that as long–

Byron R. White:

Whatever, but I would think (c) at least says that all of these listed items are disabilities.

Christopher J. Wright:

–If you’ve suffered a loss of hearing, you’ve suffered a disability whether or not your earning capacity has gone down.

We agree, and everyone else does.

So the key provision in section 10(i), the key fact in this case, is that occupational hearing loss does not have a latency period.

To the contrary, as should be clear by now, occupational hearing loss occurs simultaneously with exposure to excessive noise, and it does not get worse after the noise goes away.

Bath Iron Works concedes that this is so, said so here today, at page 8 of its brief it states, quote, it is true that occupational loss of hearing is immediate because it does not progress following exposure to noise, unquote.

That is correct.

We agree with that.

When you put section 10(i), due to an occupational disease which does not immediately result in disability, together with that fact, that occupational hearing loss occurs immediately, then it is evident that subsection 23, the special retiree rules that Congress adopted in 1984, do not apply.

What applies instead is the schedule, subsection 13, which specifically covers hearing loss.

It’s a rather unsurprising conclusion, frankly, that the hearing loss provision should apply in this hearing loss case.

Occupational hearing loss is different than asbestos-related diseases, and perhaps it’s helpful to consider that in understanding subsection 23.

Asbestos fibers actually remain in the lungs and 10 or 20 years after the exposure to asbestos is removed, they may then develop into cancerous growths of mesothelioma, or they may then destroy enough of the lung that a worker has asbestosis, but the asbestos fibers stay in the lungs and continue to do damage.

When the worker is removed from the exposure to excessive noise on the job he suffers no further loss from that exposure.

In its opening brief at page 16, Bath Iron Works recognized that this Court could decide the case by looking no farther than the words of section 10(i), but advised the Court not to adhere closely to what Congress has written.

It instead urges the Court to treat occupational hearing loss like asbestos-related diseases, because Senator Hatch mentioned Redick, the Benefits Review Board decision involving hearing loss, along with two asbestosis cases decided by the board and said that they represented inequitable policy.

As Chief Judge Briar said, and again we agree completely with his opinion for the First Circuit, Bath seeks to prove far too much on the basis of far too little.

Senator Hatch’s disparagement of Redick is hardly a sufficient basis on which to rewrite the statute.

In any event, we agree that Redick was inequitable, and we think the problems with that decision are… have been solved and are easy to solve.

First, Congress adopted in 1984 at the same time it adopted the special rules in subsection 23, a special rule in hearing loss cases which is in subsection 13(d), which provides that the time to file a claim for hearing loss doesn’t run until the audiogram report has been received, so there’s no danger of workers losing the ability to bring these claims.

John Paul Stevens:

Could I ask you a question about that right at that point?

Some of the briefs point out the fact that as a person ages the hearing tends to decrease, so that if you wait 5 or 10 years for your audiogram I presume you get a higher percentage of hearing loss than if it had been taken immediately upon retirement.

Does the statute contemplate, in your view, that the compensation shall be measured by what the audiogram shows or what the actual hearing loss at the time of leaving employment was?

Christopher J. Wright:

In our view… and this gets a little complicated, but in the case you described I believe the entire hearing loss would probably be compensated.

If the employee can prove an occupational hearing loss, and of course there has to be an occupational hearing loss–

John Paul Stevens:

Right.

Christopher J. Wright:

–For the employer to be liable, and it’s then not possible to separate out the age-related hearing loss from the occupational hearing loss, then an award for the entire hearing loss is what is normally proper.

We have suggested in our brief that if an employer would give an exit audiogram and freeze the amount of occupational hearing loss, that we don’t… that it is the position of the director that the employer should not be liable for any subsequent age-related hearing loss.

I should note in this connection that OSHA has published regulations mandating exit audiograms in especially noisy injuries.

This is recent, but it may well solve some of these important problems in the future.

As I’ve said, I think section 10(i) is quite clear here.

Christopher J. Wright:

Let me just state that if there were any question about that, deference would be appropriate.

In 1985, 1 year after the relevant amendments, the Secretary of Labor promulgated a regulation which we’ve reprinted at the very last page of the appendix to our brief.

The question was whether hearing loss claims should be treated like other accidental injuries listed in the schedule or whether they should be treated like asbestosis in terms of when you have to file your notice.

It’s 30 days in the case of accidental injuries and a year in the case of asbestosis.

The Director said quite clearly 30 days, hearing loss is like an accidental injury.

But this isn’t really a deference case.

While the provisions of this act are complex.

As Chief Judge Briar concluded, when you come right down to it, it actually says something fairly simple: when an employee sustains a disability after retirement as the result of a latent disease, the special rules in subsection 23 apply.

In a hearing loss case, where the injury occurs immediately, subsection 13 applies.

Thank you.

William H. Rehnquist:

Thank you, Mr. Wright.

Mr. Gillis, you have 3 minutes remaining.

Kevin M. Gillis:

I wanted to cover the reasons why in my view the Director’s interpretation of the statute is implausible.

First, as mentioned earlier, the Director draws a distinction and tries to make that distinction important to the intent of Congress where there’s no evidence that Congress intended the distinction to be important.

There’s no discussion in the legislative history with respect to the fact that hearing loss is somehow different than asbestosis.

Congress was concerned with the latency… or, with the delay in time between exposure and manifestation, and hearing loss has that same delay.

Secondly, if Congress had intended after the ’84 amendments for all hearing loss claims for retirees and nonretirees to be treated under section 8(c)(13), there would have been language in 8(c)(13) to say that.

8(c)(13) says nothing about retirement.

Third, if Congress had intended to exclude hearing loss claims from applicability from section 8(c)(23), the language of 8(c)(23) would be much different.

The introductory phrase in section 8(c)(23) is, notwithstanding paragraphs (1) through (22).

Obviously, (1) through (22) includes (13).

If Congress had intended to exclude hearing loss claims from subsection (23), different language such as, notwithstanding paragraphs (1) through (12) and then (14) through (22) could have been used.

Instead, the opposite language is used.

That is, section 8(c)(13) is included in the language of 8(c)(23).

Finally, the logical conclusion of the Director’s argument… that is that section 910(i) is inapplicable to hearing loss claims… would take us back to the principle that the average weekly wage is determined at the time of last exposure, and that is clearly not the intent of Congress and was mentioned several times by Congress.

I also wanted to comment on the question of the hybrid approach at one time used by the Benefits Review Board.

Our position on that is there is simply no basis in logic in terms of interpreting the statute to arrive at that approach.

If section 910(i) is applicable, then section 910(d)(2) can be applicable.

If section 910(d)(2) is applicable, section 8(c)(23) has to be applicable.

There’s just no way around it, and that’s why that approach has been discredited at this point and there is no authority for that approach.

Kevin M. Gillis:

With respect to the question of waiver, I wanted to briefly discuss that.

Justices Stevens and Scalia touched on that.

The waiver was with respect to the calculation of the average weekly wage.

That was mentioned in dicta by the First Circuit.

We have not waived the issue of whether section 8(c)(23) applies.

The waiver was very limited.

We’re not trying to have the average weekly wage recalculated or recoup any benefits based on that.

It was a very limited waiver, not a waiver of the entire argument.

William H. Rehnquist:

Thank you, Mr. Gillis.

The case is submitted.