There are two interesting parts to this decision. First, the ALJ determined that Claimant's filed but unadjudicated claims for hearing loss could proceed as a single and timely merged claim. Secondly, he determined that a previous claim that had proceeded to a hearing before ALJ Sarno but had not been adjudicated due to the Claimant's withdrawal, should not be dismissed as untimely or previously adjudicated since ALJ Sarno had never considered the case on its merits.
I.
The Claimant’s multiple claims alleging hearing loss during his employment with Respondent Employer merge into one claim for hearing loss.
The Claimant has filed three separate claims for hearing loss involving the same Respondent Employer. They involve claims for hearing loss on or about January 20, 1996, August 26, 1999 and March 31, 2001. Multiple unadjudicated claims for hearing loss with the same maritime employer usually merge into one claim for adjudication. Krotsis v. General Dynamics Corp., 22 BRBS 128 (1989), aff’d sub nom. Director, OWCP v. General Dynamics Corp., 900 F.2d 506 (2nd Cir. 1990); Spear v. General Dynamics Corp., 25 BRBS 254 (1991); Downey v. General Dynamics Corp., 22 BRBS 203 (1983) Where more than one employer is involved separate hearing loss claims are usually not merged. Giacalone v. Matson Terminals, Inc., 37 BRBS 87 (2003); Stevedoring Services of America v. Director, OWCP [Benjamin], 297 F.3d 797 (9th Cir. 2002)...
The claim for hearing loss on or about January 20, 1996 (OWCP Case No. 05-98112) was subject to a formal hearing held on December 9, 1999, before Administrative Law Judge D.A. Sarno. After the submission of evidence at the hearing and during the period scheduled for the submission of post-hearing written briefs, the Claimant withdrew his claim. Judge Sarno dismissed the claim with prejudice without any findings that the Claimant had sustained any degree of hearing loss. (EX 3) Respondent’s counsel argues that the Claimant barred from raising the January 20, 1996 work-related hearing loss injury by Judge Sarno’s final Decision and Order issued on February 14, 2000 and seeks to have that claim dismissed.
It is specifically noted that no audiological examination has been submitted in evidence related to hearing loss on or about January 20, 1996. All evidence related to hearing loss testing involved tests administered subsequent to April 22, 1996. Accordingly, the evidence of record fails to establish any degree of occupational hearing loss related to OWCP No. 05-98112 before this Administrative Law Judge. Such a finding is not contradicted by Judge Sarno’s actions. When this is combined with the Benefits Review Board direction to merge pending occupational hearing loss claims, the issue of the Claimant now being barred from raising the alleged January 20, 1996 occupational hearing loss by Judge Sarno’s February 14, 2000 is moot.
In view of all the foregoing this Administrative Law Judge finds that the Respondent Employer is not prejudiced by having the three alleged period of occupational hearing loss merged into one claim and that the interests of justice under the LHWCA are best served by combining the three claims for occupational hearing loss into one claim. Accordingly, the Claimant’s claims for occupational hearing loss are hereby combined into one claim.
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