Ninth Circuit Denies Double Dipping for Compensation Benefits under LSHWCA
Ninth Circuit Denies Double Dipping for Compensation Benefits under LSHWCA
By: Arthur Crais
Fenske v. Serv. Emples. Int'l, Inc., 2016 U.S. App. LEXIS 15791 (9th Cir., Aug. 26, 2016)While serving in Iraq, the claimant was injured when a suicide bomber’s vehicle struck his. (The jurisdictional basis for the claim is the Defense Base Act which incorporates the LSHWCA.) He was initially awarded permanent partial disability benefits which was later modified to permanent total benefits. Subsequently, he filed a claim for partial hearing loss and asserted that he was entitled to the scheduled benefit for that in addition to the permanent total benefits. The ALJ and BRB denied the claim. The Ninth Circuit affirmed.Noting that the LSHWCA is based on wage compensation principles, the Court stated that once a covered employee receives full compensation, any additional compensation would constitute “double dipping.”The Claimant maintained that prior precedent of the Ninth Circuit in Price v. Stevedoring Servs. of Am., 697 F.3d 820 (9th Cir. 2012) (en banc) ("Price II") should be extended. The Court declined distinguishing that case from the case at bar on the basis that the partial disability in Price preceded the total disability. Here the hearing loss was diagnosed after total disability was determined.
