In this hearing loss case, the employer moved for a summary decision alleging that it had voluntarily paid the claimant all the compensation to which he was entitled. In its motion, the Employer maintained that the claimant’s average weekly wage was $272.71. The Employer also argued that claimant was not entitled to additional benefits for tinnitus because his expert did not follow the proper impairment rating protocol in assessing that condition. The Claimant responded to the employer’s motion by asserting that genuine issues of material fact existed regarding both his average weekly wage and the extent of his hearing impairment. The administrative law judge granted the employer’s motion for summary decision, but based his decision on a finding that the claimant, at the time of his last exposure to injurious noise on March 9, 2001, was incapable of work and suffered no loss of wage-earning capacity from his hearing loss. However, neither the claimant nor the employer had argued that the claimant had no wage loss.
The Board vacated the summary decision in the employer’s favor, holding that the ALJ could not grant summary judgment on the basis of no wage loss. According to the Board, Section 18.72 of the OALJ Rules, 29 C.F.R. § 18.72, which governs summary decisions, provides that an ALJ may issue a “Decision independent of the motion,” but only after giving notice and an opportunity to respond. In basing his decision on an issue not argued by either side, the Board found that the ALJ had issued a “decision independent of the motion.” As a result, the ALJ should have given the parties notice and an opportunity to address this issue.
The Board’s decision relies upon a literal application of Section 18.72, and provides practitioners with a useful interpretation of this section.
Maglione v. APM Terminals, et al., BRB No. 16-0053 (8/11/2016)
© 2018 Ira J. Rosenzweig