Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 506 U.S. 153, 13 (1993)

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Cite as: 506 U. S. 153 (1993)

Opinion of the Court

yards Corp. v. Black, 717 F. 2d 1280 (CA9 1983). In such cases, using the date of last exposure as the relevant time of injury was deemed inappropriate because, according to ordinary understanding, a worker is not injured at that time; the injury arises years later when the disease manifests itself. Id., at 1290 ("The average person . . . would not consider himself 'injured' merely because the [asbestos] fibers were embedded in his lung"). For the reasons explained above, the same cannot be said about occupational hearing loss. The injury, loss of hearing, occurs simultaneously with the exposure to excessive noise. Moreover, the injury is complete when the exposure ceases. Under those circumstances, we think it quite proper to say that the date of last exposure—the date upon which the injury is complete—is the relevant time of injury for calculating a retiree's benefits for occupational hearing loss.

Nor are we persuaded by petitioners' arguments as to why retiree claims for occupational hearing loss should be compensated pursuant to the third compensation system. Petitioners correctly point out that even though the portion of a retiree's hearing loss that is attributable to his occupation may remain constant after retirement, the aging process may cause it to worsen during retirement. In our view, however, this is a matter that is relevant to the computation of the amount of the benefit—a matter that is not in dispute in this case 14—rather than to the retiree's eligibility for a scheduled benefit. To the extent there is any unfairness in the statutory scheme in that employers may be liable for hearing loss attributable to aging, employers can protect themselves by providing their employees with an audiogram at the time of retirement and thereby freezing the amount of compensable hearing loss attributable to the claimant's employment.

14 See supra, at 161.

165

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