Workers' Compensation

U.S. Supreme Court to Review Longshore Average Weekly Wage Issue

  By John E. Kawczynski

Field Womack & Kawczynski, LLC, South Amboy, New Jersey

The Supreme Court has granted certiorari in the case of Dana Roberts v. Director, OWCP (Sea-Land Services, Inc.), 625 F.3d 1204, 44 BRBS 73(CRT) (9th Cir. 2010).  This case will resolve a split in the circuits regarding the interpretation of Section 6(c), 33 U.S.C.S. § 906(c).[fn1]  This section determines which fiscal year’s maximum and minimum compensation rates apply and is a companion to Section 6(b)(1)-(3), which sets forth the method of calculating the maximum and minimum compensation rates.  See 33 U.S.C.S. § 906(b)(1)-(3).  

The facts of the Roberts case are rather straight forward and are best presented in a timeline format:

February 24, 2002: Date of Injury

March 11, 2002: Temporary Total Disability began

July 12, 2005: Permanent Total Disability began

October 10, 2005: Permanent Partial Disability began

October 12, 2006: ALJ Award

Roberts, 625 F.3d at 1205-1206.

At the time of his injury, Mr. Roberts’ average weekly wage was $2,853.08 and the maximum compensation rate was $966.08.  Initially, the ALJ found that the fiscal year 2002 maximum compensation rate applied to all periods of disability.  Id. at 1206.[fn2]  Thus the ALJ’s Order limited Mr. Roberts to $966.08 per week for all periods of disability.  Id.  However, on reconsideration the ALJ determined that Claimant was entitled to be paid at the fiscal year 2005 maximum compensation rate of $1,073.64 during the period of permanent total disability occurring between October 1, 2005 and October 9, 2006.  Id.  The Benefits Review Board affirmed the ALJ’s final decision.  Id.  

Mr. Roberts then appealed to the United States Court of Appeals for the Ninth Circuit.  On appeal, Mr. Roberts argued that the phrase “newly awarded compensation” should be interpreted to mean that fiscal year 2007 maximum rate of $1,114.44 should apply because the ALJ award was made during that fiscal year.  Id.  However, the Ninth Circuit disagreed, stating that the “award” was the date of entitlement to compensation and not the date the entitlement was reduced to a formal order.  Id.  The Ninth Circuit went on the say that this interpretation was consistent with similar language in Section 10(h)(1) (“was awarded compensation . .. at less than the maximum rate.”).  33 U.S.C.S. § 910(h)(1).  Id. at 1207.  Moreover, the Ninth Circuit reasoned that Section 33(b) specifically narrows the definition of “award” to mean formal orders.  33 U.S.C.S. § 933(b) (“For the purpose of this subjection, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commissioner, an administrative law judge, or Board.”).  33 U.S.C.S. § 933(b).  Id.   Finally, the Ninth Circuit reasoned that its interpretation was consistent with the “overall statutory scheme” which demonstrates a “pattern of basing calculations at the time of injury.” Id.  

Notably, the Ninth Circuit considered, but rejected, the contrary analysis by the United States Court of Appeals for the Fifth Circuit in Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150(CRT) (5th Cir. 1997), which adopted the reasoning that Section 6(c) (33 U.S.C.S. § 906(c)) requires the use of the maximum compensation rate in effect at the time of the formal order.  Indeed, the court noted that the Wilkerson approach could have the “inequitable result” of having two different employees injured on the same day compensated at different rates based on the date the formal order is entered.  Roberts at 1208, n.1. 

 The Ninth Circuit also considered the phrase “currently receiving compensation” and concluded the result would be the same under the clause because the two phrases are “consistent” with each other.  Id. at 1208.  

Roberts then filed a Petition for Writ of Certiorari with the United States Supreme Court.  Critical to the Petition’s success was the identified split between the Fifth and the Ninth Circuits on this issue. 

Although the Petitioner’s offered two proposed questions for review based upon the two arguments presented to the Ninth Circuit, the Court only granted certiorari as to the first question:

Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.

After the Supreme Court had already granted certiorari, the United States Court of Appeals for the Eleventh Circuit reached the opposite result in Boroski v. Dyncorp. International, 2011 U.S. App. Lexis 21776, __F.3d __ (11th Cir. 10/27/2011).  In its decision, the Eleventh Circuit interpreted the phrase “newly awarded compensation” to mean at the time of the formal order.  Thus, the Eleventh Circuit aligned itself with the Fifth Circuit’s Wilkerson decision.  It will now be up to the Supreme Court to resolve this split in the circuits.[fn3]


1. In its entirety, Section 6(c) states, “Determinations under subsection (b)(3) with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.”  33 U.S.C.S. § 906(c).

2. Under Section 6(b)(3), the maximum and minimum compensation rates are changed each October 1st, which is the beginning of the federal government’s fiscal year.

3. Notably, this is the second Longshore-related case that has taken this term.  The other being Valladolid v. Pacific Operations Offshore, LLP, 604 F.3d 1126, 44 BRBS 35(CRT) (9th Cir. 2010), cert. granted sub nom. Pacific Operations Offshore, LLP v. Valladolid, 179 L. Ed. 2d 298, 131 S. Ct. 1472 (2011).  That case will determine whether injuries occurring on land are compensable under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C.S. § 1331 et seq. 

© Copyright 2011 by John E. Kawczynski. All rights reserved. Reprinted with permission.

This article will appear in an upcoming issue of the Benefits Review Board Service - Longshore Reporter (LexisNexis).