Robert Gilbert v. Electric Boat Corporation (Board decision, May 22, 2020)

BRB final decision. This unpublished order is not precedent. The Board granted reconsideration and modified its earlier allocation of hearing loss benefits. A Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Robert Gilbert had an earlier work-related hearing loss and a later hearing loss claim against Electric Boat. The Director asked the Board to reconsider how much the Special Fund had to reimburse the employer. The Board agreed that its earlier calculation had improperly relieved the employer of payment responsibility for the first hearing loss. It gave the Special Fund credit for $20,719.81 already paid by the employer and reduced the required reimbursement from $72,234.38 to $51,514.57. The order recalculates who pays for the pre-existing and later portions of Gilbert's hearing loss.

Decision snapshot

• Authority: Reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.409.
• Outcome: Reconsideration granted; Special Fund reimbursement reduced to $51,514.57.
• Key point: Payments for an earlier work-related hearing loss count against Special Fund liability for the pre-existing loss.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 20-0073

ROBERT GILBERT
)
)
Claimant
)
)
v. )
)
ELECTRIC BOAT CORPORATION
)
)
Self-Insured
) DATE ISSUED: 05/22/2020
Employer-Respondent
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER on MOTION
Petitioner
) for RECONSIDERATION

The Director, Office of Workers’ Compensation Programs (Director), has filed a timely motion for reconsideration of the Benefits Review Board’s decision in this case, Gilbert v. Electric Boat Corp., BRB No. 20-0073 (May 22, 2020). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. Employer has not responded. The Director asserts the Special Fund is not liable for reimbursing Employer more than $51,514.57 ($72,234.38 - $20,719.81), citing Blanchette v. Director, OWCP, 998 F.2d 109, 27 BRBS 58(CRT) (2d Cir. 1993), and Director, OWCP v. Bethlehem Steel Corp. [Brown], 868 F.2d 759, 22 BRBS 47(CRT) (5th Cir. 1989), and contends the Board erred holding otherwise. We grant the motion for reconsideration and the relief requested.

Upon further review of this case, we agree with the Director and hold the Special Fund is entitled to credit the amount Employer paid on Claimant’s initial claim against its liability for benefits for his entire pre-existing hearing loss. Our prior decision, while acknowledging the absence of Claimant’s receiving a double recovery and ensuring Employer paid for the full extent of the second work injury, inadvertently relieved Employer of liability for Claimant’s first work-related hearing loss. Gilbert, slip op. at 4-

6; see Blanchette, 998 F.2d at 110-112, 27 BRBS at 70-71(CRT); Brown, 868 F.2d at 762, 22 BRBS at 51(CRT).

Therefore, liability for Claimant’s benefits is as follows:

    % Impairment              Amount              Calculation            Liable Party

27.35% $ 20,719.81 54.7 wks x $378.791 Employer
first claim
39.0625% (27.35% + $ 29,855.81 54.7 wks x $545.812 Special Fund
11.7125%) $ 21,658.76 23.425 wks x $924.603 Special Fund
entire pre-existing loss
35.7375% $ 66,085.78 71.475 wks x $924.604 Employer
subsequent work injury
Total Paid to Claimant $138,320.16

Accordingly, we grant the Director’s motion for reconsideration, vacate the order that the Special Fund reimburse Employer $72,234.38, and modify the decision to reflect the Special Fund is entitled to credit $20,719.81 against its liability for the pre-existing 39.0625% hearing loss. The Special Fund must reimburse Employer $51,514.57.5 20

1
0.2735 x 200 weeks = 54.7 weeks; compensation rate was $378.79 per week.

This amount reflects the difference between Claimant’s 1990 and 2016 2

compensation rates.
3
39.0625 - 27.35 = 11.7125. 0.117125 x 200 weeks = 23.425 weeks. This is the remainder of the 39.0625% pre-existing condition for which Claimant had not been paid, and which is paid at the 2016 rate of $924.60.
4
0.357375 x 200 weeks = 71.475 weeks (less than 104 weeks, so Employer is liable for the entire second work-related hearing loss, 33 U.S.C. §908(c)(13)(B)).
5
We need not address the Director’s remaining arguments.

C.F.R. §802.409.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

3