In November of 2010, the United States Court of Appeals for the Ninth Circuit decided the case of Dana Roberts, Petitioner vs. Director, Office of Workers' Compensation Programs; Sealand Services, Inc., 625 F.3d 1204, 44 BRBS 73(CRT) (9th Cir. 2010).
Rehearing was denied on February 10, 2011, and petition for certiorari has or will be filed by petitioner Roberts.
The first issue that was argued in this appeal was whether a permanently and totally disabled worker would have a right to have their maximum compensation rate determined by the date of injury or by the date of an award by an administrative law judge or the District Director, OWCP. The second issue was whether or not, the maximum compensation rate would be determined on the day of injury or, in the case of permanently and totally disabled workers, on the day that maximum medical improvement occurred.
The first question turned on the interpretation of Section 6 (c) of the Longshore Act (33 U.S.C.S. § 906(c)) where it uses the term "newly awarded compensation," which is the trigger for the rate of maximum compensation. While the court examined various sections of the act where "award" or "awarded" was used, it did not see this phrase as requiring a formal award of the court or the District Director. Instead, it decided that it would define the term "award" as it defined "entitled to compensation." In other words, the court determined that the date an injured employee becomes entitled to compensation is no different than being awarded compensation. Interestingly, it never dealt with the word used "newly" in conjunction with the word "awarded." It therefore appears that this panel did not find any significance or difference between the terms "awarded" and "newly awarded."
Comments by the appellant’s lawyer, Joshua Gillelan, indicate that the reasoning of this panel, with regard to the references above, compel the petitioner Roberts to request certiorari. Gillelan indicated that the petitioner sees no intent of Congress to obviate the necessity of an actual award in Section 6 as the trigger for calculating compensation rate or that it requires actual payment of benefits.
The panel, however, did find that there may be many claimants who could be expecting to boost their compensation rate if it was originally based on the maximum rate on the date of injury rather than the maximum rate on the date of maximum medical improvement where permanent total disability was found. This court of appeals panel endorsed that rule so that claimants who had a period of temporary total disability and then were found to be totally and permanently disabled and at maximum medical improvement would receive the maximum compensation rate in effect at the time of maximum medical improvement.
So it appears that there are a group of claimants that have been receiving benefits on a total and permanent basis, who may be entitled to an increase based on this case. For example, a claimant who had been receiving permanent partial disability compensation and moved for modification is entitled to calculate compensation at the maximum rate in effect on the date of maximum medical improvement that shows permanent and total disability.
There are also a number of claimants who have just been receiving permanent and total benefits without the benefit of an award and have not been adjudged at maximum medical improvement. It seems likely that should those claimants apply to their doctor for certification of maximum medical improvement, the date of that certification would fix the rate of maximum compensation.
If this case is granted certiorari, it will be reported in the Benefits Review Board Service Longshore Reporter (LexisNexis).
© Copyright 2011 LexisNexis. All rights reserved. This article, which was written by Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California, will be published in the April 2011 issue of the Benefits Review Board Service Longshore Reporter.
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