WASHINGTON, D.C. - (Mealey's) An injured maritime worker's compensation is based on the rate at the time he or she becomes disabled regardless of when a compensation order is issued, a split U.S. Supreme Court ruled March 20 (Dana Roberts v. Sea-Land Services, Inc., et al., No. 10-1399, U.S. Sup.).
(Opinion. Document #73-120413-006Z.)
Dana Roberts slipped and fell on a patch of ice on Feb. 24, 2002, while working as a gatehouse dispatcher in Dutch Harbor, Alaska, for Sea-Land Services Inc. He injured his neck and shoulder and did not return to work.
Sea-Land voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land stopped the payments, Roberts filed a Longshore and Harbor Workers' Compensation Act (LHWCA) claim. In fiscal year 2007, an administrative law judge (ALJ) awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This amount was twice the national average weekly wage for fiscal year 2002, the year when Roberts became disabled.
Roberts moved for reconsideration, arguing that the "applicable" national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was "newly awarded compensation" by the ALJ's order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor's Benefits Review Board affirmed. Roberts then appealed to the Ninth Circuit U.S. Court of Appeals.
The Ninth Circuit held that an employee "is 'newly awarded compensation' . . . when he first becomes entitled to compensation." Roberts then petitioned the U.S. Supreme Court.
Upholding the appellate panel's ruling, the Supreme Court majority opined that "[u]sing the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA's administrative structure." It also "avoids disparate treatment of similarly situated employees. Under Roberts' reading, two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their obtaining orders in different fiscal years. We can imagine no reason why Congress would have intended by choosing the words 'newly awarded compensation,' to differentiate between employees based on such an arbitrary criterion," Justice Sonia Sotomayor wrote for the majority.
Finally, the majority held, using the average weekly wage for the fiscal year in which the injury occurs "discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation . . . would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year."
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer, Samuel Anthony Alito Jr. and Elena Kagan joined in the opinion.
Justice Ruth Bader Ginsburg filed an opinion concurring in part and dissenting in part. She agreed with the majority that Roberts' was incorrect in arguing that benefits must be based on the national weekly average the year an employee receives a formal compensation award. However, Justice Ginsburg did not agree with the majority's conclusion that the rate should be established based on the year in which the employee becomes "statutorily entitled to compensation."
Instead, she opined, "I would hold that an injured worker is 'newly awarded compensation' when (1) the employer voluntarily undertakes to pay benefits to the employee, or (2) an administrative law judge (ALJ), the Benefits Review Board (BRB), or a reviewing court orders the employer to pay such benefits."
Joshua T. Gillelan II of Longshore Claimants' National Law Center in Washington represents Roberts. Carter G. Phillips of Sidley Austin in Washington, Frank B. Hugg of Oakland, Calif., and Solicitor General Donald B. Verrilli Jr. and Assistant to the Solicitor General Joseph R. Palmore, both in Washington, represent the defendants.
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