By Roger A. Levy, Esq., Of Counsel, Laughlin, Falbo, Levy & Moresi, San Francisco, California
On March 20, 2012 the U.S. Supreme Court answered the question of the meaning of LHWCA Sec. 6(c)'s "newly awarded compensation" clause in its decision in Roberts vs. Sea-Land Services, Inc. authored by Justice Sonia SotoMayor (See LHWCA, 33 U.S.C.S. § 901 et seq. and 33 U.S.C.S. § 906(c)). Eight justices, including Justice Sotomayor, voted to affirm the 9th circuit's ruling in favor of the employer with one, Justice Ruth Bader-Ginsburg, concurring in part and dissenting in part. Faced with two choices as to the meaning of the clause, the Court chose the one most favorable to employer/carriers and supported by the Director, Office of Workers Compensation Programs.
It was Roberts' contention that "newly awarded compensation" in the statute should be taken literally and that compensation which is the subject of an award should be based on whatever the worker's average weekly wage would support (up to the statutory maximum in effect at the time an award is issued). Employer/carrier and the Director argued that the meaning should be taken from a contextual reading of the LHWCA as a whole as well as the practical administration of the Act and that "newly awarded" means at the time an injured worker becomes entitled to compensation, i.e., when s/he first becomes disabled.
There is much discussion in the decision about what "award" means both in a common sense and as the word is used in the Act. As opposed to the 11th circuit's decision in Boroski v. Dyncorp Int'l, 662 F.3d 1197, 46 BRBS 1(CRT) (CA 11 2011), the Supreme Court was quite cognizant of the practical effects of selecting a date so controlled by extraneous circumstances (the date an order is filed) as opposed to one more grounded in the facts of the case (the date of entitlement).
As always, because the Court's analysis is quite detailed, a thorough reading of the decision, including Justice Bader Ginsburg's concurring and dissenting opinion, is highly recommended. The Court's certain answer to the question of the compensation rate being set at the time of entitlement vs. date of the award is, of course, at the heart of the decision. However, there are those who believe the compensation rate should be based on the average weekly wage at the time of injury. Does Roberts settle that question or may we be hearing more on the issue in the future?
© Copyright 2012 by Roger A. Levy, Esq. All rights reserved. Reprinted with permission.
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