160
Opinion of the Court
provision in the 1984 amendments that is not at issue in this case,10 he then filed a timely claim for benefits.
The ALJ, following Board precedent, applied a hybrid of the first and third compensation systems to calculate respondent's benefits. The ALJ concluded that respondent's hearing loss fell within the scope of the 1984 amendments as an occupational disease that does not immediately result in disability and that the relevant "time of injury" was the date in September 1985 when respondent received his audiogram and became aware of his hearing loss. Accordingly, the ALJ identified the national average weekly wage in September 1985 as the relevant average weekly wage. At that point, however, the ALJ departed from the third system; instead of applying the formula in § 8(c)(23) applicable to claims for latent occupational diseases, he turned to the first system, the schedule in § 8(c)(13), to calculate respondent's weekly benefit. Respondent's benefits were thus limited to a precise number of weeks, as opposed to continuing throughout the duration of his disability as would be required under § 8(c)(23). Yet, because of the differing formulas used in §§ 8(c)(23) and 8(c)(13), the amount of each weekly benefit was higher than it would have been had respondent's benefit been calculated under § 8(c)(23).11 The Benefits Review Board affirmed on the same rationale.
On appeal, petitioners (the employer and its insurance carrier) agreed with the ALJ and the Board that respondent suffers from a latent occupational disease within the meaning of § 10(i), but argued that the ALJ and the Board erred in
10 Title 33 U. S. C. § 908(c)(13)(D) provides: "The time for filing a notice of injury, under section 912 of this title, or a claim for compensation, under section 913 of this title, shall not begin to run in connection with any claim for loss of hearing under this section, until the employee has received an audiogram, with the accompanying report thereon, which indicates that the employee has suffered a loss of hearing."
11 See n. 9, supra, and accompanying text.
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