162
Opinion of the Court
U. S. C. § 910(i), and that therefore his claim did not fall within the third compensation system. "[U]sing ordinary English," the court noted, "one would normally say that deafness is a disease that causes its symptoms, namely loss of hearing, simultaneously with its occurrence. One simply cannot say that a person suffering from deafness is not deaf—whether or not he notices how deaf he is." 942 F. 2d, at 817 (emphasis added). Having ruled out application of the third compensation system, the court found that respondent's claim fell squarely within the first system, which draws no distinction between retired and working claimants and expressly provides for compensation for work-related hearing loss. The court thus affirmed the Board's result—application of the benefit calculation formula for scheduled injuries in § 8(c)(13)—but rejected its reliance on the third compensation system for latent occupational diseases.12
The Courts of Appeals for the Fifth and Eleventh Circuits have reached the opposite conclusion. While both courts have agreed with the court below in rejecting the Board's "hybrid" approach, they have both held, in contrast to the decision below, that a retiree's claim for occupational hearing loss is "a claim for compensation for . . . disability due to an occupational disease which does not immediately result in . . . disability," 33 U. S. C. § 910(i), and therefore should be compensated under the retiree provisions enacted in 1984. See Ingalls Shipbuilding v. Director, Office of Workers' Compensation Programs, 898 F. 2d 1088 (CA5 1990); Alabama Dry Dock and Shipbuilding Corp. v. Sowell, 933 F. 2d
12 The Board did not fully apply the benefit calculation for scheduled injuries. Instead of using the average weekly wage at the time respondent was injured, it used the national average weekly wage in September 1985, the average weekly wage that would be appropriate had respondent in fact suffered from "an occupational disease which does not immediately result in death or disability." 33 U. S. C. § 910(i). See supra, at 160. Petitioners did not raise the issue below and the Court of Appeals considered it waived. 942 F. 2d, at 819. We do as well.
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