v. METCALF & EDDY, INC. STEVENS, J., dissenting ties is one thing; doing so out of concern for the "dignitary" interest of a State or, in this case, a state aqueduct and sewer authority, is quite another. For me, the balance of interests is easy. The cost to the courts and the parties of permitting piecemeal litigation of this sort clearly outweighs whatever benefit to their "dignity" States or state entities might derive by having their Eleventh Amendment claims subject to immediate appellate review. I would therefore hold, as did the court below, that the denial of a motion to dismiss on Eleventh Amendment grounds is not subject to immediate appellate review. Accordingly, I respectfully dissent. Syllabus BATH IRON WORKS CORP. ET AL. v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 91-871. Argued November 4, 1992-Decided January 12, 1993 Upon learning after he retired that he suffered from a work-related hearing loss, respondent Brown, a former employee of petitioner Bath Iron Works Corp., filed a timely claim for disability benefits under the Longshore and Harbor Workers' Compensation Act. In calculating Brown's benefits, the Administrative Law Judge applied a hybrid of the compensation systems set forth in §§ 8(c)(13) and 8(c)(23) of that Act, and the Benefits Review Board affirmed. Rejecting the Board's reliance on §8(c)(23), the Court of Appeals held that hearing loss claims, whether filed by current workers or retirees, must be compensated pursuant to §8(c)(13). Under that section, a claimant who has suffered a disabling injury of a kind specifically identified in a schedule, including hearing loss, is entitled to certain benefits regardless of whether his earning capacity had actually been impaired. In contrast, the Courts of Appeals for the Fifth and Eleventh Circuits have held that a retiree's claim for occupational hearing loss should be compensated pursuant to §8(c)(23). Under that section, a retiree who suffers from an occupational disease that did not become disabling until after retirement-one "which does not immediately result in death or disability" in the words of the Act-receives certain benefits based on the "time of injury," which is defined as the date on which the claimant becomes aware, or reasonably should have been aware, of the relationship between the employment, the disease, and the disability. In Brown's case, as in most cases, §8(c)(13) benefits would be more generous than §8(c)(23) benefits. Held: Claims for hearing loss, whether filed by current workers or retirees, are claims for a scheduled injury and must be compensated under §8(c)(13), not §8(c)(23). Respondent Director's undisputed characterization of occupational hearing loss as a condition that does cause immediate disability must be accepted. A worker who is exposed to excessive noise suffers the injury of such loss, which, as a scheduled injury, is presumptively disabling, simultaneously with that exposure. Thus, the loss cannot be compensated under §8(c)(23) as "an occupational disease which does not immediately result in . . . disability." In holding that claims for occupational hearing loss should be compensated pursu WORKERS' COMPENSATION PROGRAMS Opinion of the Court ant to §8(c)(23), the Eleventh and Fifth Circuits have essentially read this key phrase out of the statute. To the extent there is any unfairness in the statutory scheme in that employers may be held liable for postretirement increases in hearing loss due to aging, they can protect themselves by giving employees audiograms at the time of retirement and thereby freezing the amount of compensable hearing loss. A lone Senator's single passing remark in the legislative history does not persuade this Court that retirees' hearing loss claims should be compensated under §8(c)(23). Pp. 163–166. 942 F. 2d 811, affirmed. STEVENS, J., delivered the opinion for a unanimous Court. Kevin M. Gillis argued the cause for petitioners. With him on the briefs was Allan M. Muir. Christopher J. Wright argued the cause for the federal respondent. With him on the brief were Solicitor General Starr, Deputy Solicitor General Mahoney, Allen H. Feldman, Nathaniel I. Spiller, and Elizabeth Hopkins. Ronald W. Lupton argued the cause and filed a brief for Ernest C. Brown, respondent under this Court's Rule 12.4. JUSTICE STEVENS delivered the opinion of the Court. Respondent Ernest C. Brown, a former employee of petitioner Bath Iron Works Corp., learned after he retired that he suffered from a work-related hearing loss. The parties agree that under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. §901 et seq., respondent is entitled to disability benefits on account of his injury. They disagree, however, as to the proper method of calculating those benefits. There are essentially three "systems"1 for compensating partially disabled workers under the Act, two of which are at issue in this case. The "first" system provides for com 1The various methods for calculating benefits under the Act were so labeled by the Court of Appeals, and the parties retain that characterization in their briefs before this Court. We find that characterization useful and adhere to it in our discussion of the Act. Opinion of the Court pensation for partially disabled claimants who have suffered certain statutorily “scheduled” injuries, one of which is hearing loss. The "third" system provides for compensation for retirees who suffer from occupational diseases that do not become disabling until after retirement. In most, but not all, cases, benefits for scheduled injuries are more generous than those provided retirees suffering from latent occupational diseases. The question presented in this case is whether a claimant who discovers, after retirement, that he suffers from a work-related hearing loss should be compensated under the first system, because loss of hearing is a scheduled injury, or under the third system, because he did not become aware of the disabling condition until after retirement. I Prior to 1984, the LHWCA provided that compensation for a permanent partial disability should be determined in one of two ways. If the injury was of a kind specifically identified in the schedule set forth in §8(c) of the Act, 33 U.S. C. §§ 908(c)(1)–(20) (1982 ed.), the injured employee was entitled to two-thirds of his average weekly wage at the time of the injury for a specific number of weeks, regardless of whether his earning capacity had actually been impaired. See Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U. S. 268, 269–270 (1980).2 Loss of hearing was among those specified injuries.3 In all other cases, the Act authorized compensation equal to twothirds of the difference between the employee's average 2 For example, workers who lose an arm are entitled to two-thirds of their weekly pay for 312 weeks, 33 U. S. C. §908(c)(1), whereas workers who lose a leg are entitled to such compensation for 288 weeks, §908(c)(2). 3 Section 8(c)(13), both before and after the LHWCA Amendments of 1984, authorized compensation of two-thirds of the average weekly wage for a period of 200 weeks for a total loss of hearing in both ears. For a partial loss of hearing, the Act requires a proportionate reduction in benefits. See n. 9, infra. WORKERS' COMPENSATION PROGRAMS Opinion of the Court weekly wage and his postinjury earning capacity. 33 U. S. C. §908(c)(21). In those cases, unlike the scheduledinjury cases in which disability was presumed, it was necessary for the employee to prove that his injury had actually decreased his earning capacity.4 In early 1984, the Benefits Review Board 5 was confronted with a case in which the claimant had contracted asbestosis, a latent occupational disease that did not manifest itself until after his retirement. Because the disease did not qualify as a scheduled benefit, the claimant was not entitled to a presumption of disability; moreover, because it did not affect his actual earnings, he could not establish "disability" as defined in §902(10).6 Therefore, the Board held, the claimant was not entitled to any compensation under the Act. Aduddell v. Owens-Corning Fiberglass, 16 BRBS 131, 134 (1984).7 Three weeks after the Aduddell decision, the Board followed 4 Prior to 1984, § 902(10) defined the term "disability" to mean "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U. S. C. § 902(10) (1982 ed.). An employee with a scheduled injury, however, is presumed to be disabled, even though the injury does not actually affect his earnings. As we held in Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U. S. 268 (1980), such an employee is only entitled to the scheduled benefit even when the actual impairment of his earnings would have produced a higher benefit if calculated under § 8(c)(21). Id., at 270-271. 5 The Benefits Review Board was created by Congress to "hear and determine appeals . . . with respect to claims of employees under [the Act]." 33 U. S. C. §921(b)(3). 6 See n. 4, supra. 'See also Worrell v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 216 (1983) (Administrative Law Judge (ALJ) decision denying death benefits where claimant who had been exposed to asbestos developed and died from mesothelioma after retirement); Newport News Shipbuilding and Dry Dock v. Director, Office of Workers' Compensation Programs, 681 F. 2d 938, 942 (CA4 1982) ("Before retirement, the asbestosis was not disabling; after retirement there was no diminished capacity"). |