Cite as: 506 U. S. 153 (1993)
Opinion of the Court
failing to apply the benefit formula in § 8(c)(23) appropriate to such claims. While petitioners challenged the method of computing the benefit, they did not contest the use of 82.4 percent as the measure of Brown's hearing loss, even though the record contains persuasive evidence that a portion of that loss is attributable to the aging process after his retirement.
The Director of the Department of Labor's Office of Workers' Compensation Programs challenged the ALJ's and the Board's reasoning on different grounds. The error they made, the Director argued, was in looking to the third compensation system at all, for hearing loss is not an occupational disease that "does not immediately result in death or disability." 33 U. S. C. § 910(i). Relying on undisputed scientific evidence, the Director argued that work-related hearing loss, unlike a disease such as asbestosis, does cause immediate disability:
"[D]eafness is an injury that a worker typically suffers before retirement. After retirement a worker's work-place-noise-induced deafness will not ordinarily grow worse; if anything it will get better. See R. T. Sataloff & J. Sataloff, Occupational Hearing Loss 357 (1987). Moreover, unlike asbestosis, the symptoms of deafness occur simultaneously with the 'disease.' In other words, to say that a worker is '84.4% deaf' is to say that he has lost 84.4% of his hearing. If he does not notice his deafness, and does not file a claim until long after retirement, that fact does not mean he is not deaf; it does not mean he has no deafness symptom; rather, it means he may have grown accustomed to his deafness, which is quite a different matter." 942 F. 2d 811, 816 (CA1 1991) (summarizing Director's argument).
Accepting the Director's undisputed characterization of occupational hearing loss, the Court of Appeals held that respondent's disability was not "due to an occupational disease which does not immediately result in . . . disability," 33
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