Opinion

Newport News Shipbuilding & Dry Dock Co. v. Fishel

  • 694 F.2d 327
Court
Court of Appeals for the Fourth Circuit
Filed
Nov 29, 1982
Status
Published
Author
Widener
On the bench
Ervin, Hall, Widener
Cited by
18 cases

explaining the last employer rule but finding instead that the aggravation rule was applicable to the given facts

How later courts described this case

  • explaining the last employer rule but finding instead that the aggravation rule was applicable to the given facts
  • claimant awarded full 31.25% hearing loss without need to determine whether 5.95% current work-related loss worsened or affected pre-employment 25.3% loss
  • accepting the aggravation rule for compensability under the LHWCA, in part, based upon the humanitarian nature of the Act
  • The aggravation rule provides that "if an employment injury aggravates, accelerates, or combines with a previous infirmity, the entire disability is compensa- ble."

Written by the judges who cited it.

The opinion

WIDENER, Circuit Judge,

concurring:

I concur in the result.

The majority opinion correctly finds that payment for the injury, if made at all, must be made under § 908(f) of the statute and that a literal reading of that section would require Newport News to compensate the claimant for 104 weeks, which is 41.5 weeks *331 more than the claimant would be entitled to for his entire partial hearing loss.

I join with the majority in declining to read the statute to get such a strained result.

At that point, however, I would simply approve the award of 62.5 weeks as the lesser of the two periods (the statute is based on reducing the period of awards to prorate rather than the amount of each payment).

I think it is an unjustifiable reaching out both by the Board and by the majority to apply “the aggravation rule.” Other cases will doubtless come along in which it is necessary to decide whether or not “the aggravation rule” applies. Because I do not think that it is necessary here, I concur in the result only for the reasons I have stated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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