Payment of a Scheduled Award After PTD to PPD Conversion

The Benefits Review Board recently addressed the payment of a scheduled hearing loss impairment rating when a Claimant is simultaneously receiving disability benefits for a different, unscheduled injury.  In Bogden, the Claimant sustained a back injury.  For this injury, he received temporary total disability benefits for roughly ten months, then permanent total disability benefits for ninetheen months, and finally, he received continuing permanent partial disability benefits. 

In addition to the back injury, Claimant also sustained a work-related hearing loss injury resulting in a 30.938% binaural impairment.  In the court below, the Administrative Law Judge determined that Claimant was entitled to 61.876 weeks of compensation for his hearing loss, but that the “hearing loss [was] subsumed in the total disability award for claimant’s back injury and, thus, [was] not payable.”

The BRB disagreed, holding that a claimant is entitled to a resumption of his scheduled permanent partial disability award on the date that his disability status converts from a permanent total state to a permanent partial state.  At that time, Claimant can receive a concurrent award for the scheduled and unscheduled permanent partial losses.  In other terms, if a claimant’s disability state is total, then payments for a permanent partial scheduled award are suspended until claimant’s disability state is likewise partial in nature.

Bogdon v. Consolidated Coal Co., BRB No. 09-0773 (Ben. Rev. Bd. 2010).

Jon Robinson
As a Member at Mouledoux, Bland, Legrand & Brackett, Jon Robinson focuses his practice on the representation of employers and carriers in matters arising under the Longshore and Harbor Workers' Compensation Act, the Defense Base Act, and the War Hazards Compensation Act. He can be contacted at (504) 595-3000 or by e-mail at jrobinson@mblb.com.
Jon Robinson