Martin v. Sundial Marine Tug and Barge Works, Inc., No. 20-70147 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the BRB's decision affirming an IJ's award of benefits to claimant under the Longshore and Harbor Workers' Compensation Act (LHWCA). In this case, claimant sought disability and medical benefits under the LHWCA after injuring both knees while working for Sundial.
The panel held that the ALJ did not err in applying section 910(a) of the LHWCA to calculate claimant's average weekly wage at the time of injury. The panel explained that the section 910(a) formula presumptively applies to calculating a five-day workers' average weekly wage, and the statutory presumption is not rebutted as a matter of law simply because section 910(a) would slightly underestimate earning capacity because the claimant worked in excess of 260 days. Rather, the statute plainly contemplates some inaccuracy in calculating the average weekly wage, and it does not provide that section 910(a) is inapplicable if more than 260 days were worked. Nor does the fact that claimant worked 264 days by itself make use of the section 910(a) formula unreasonable or unfair. In this case, claimant is incorrect that the section 910(a) formula entirely fails to account for his increased earnings, as the starting point for the section 910(a) calculation is the total amount of compensation earned in the previous year. Furthermore, the legislative history of the Act suggests that Congress did not envision application of section 910(c) under these circumstances.
Court Description: Longshore and Harbor Workers’ Compensation Act. The panel denied a petition for review of a decision of the Benefits Review Board (“BRB”) affirming an administrative law judge’s award of benefits to claimant under the Longshore and Harbor Workers’ Compensation Act. Under the Act, a benefits award is based on the claimant’s “average weekly wage,” and the statute sets forth three different formulas for determining the average weekly wage. 33 U.S.C. § 910. At issue is whether claimant’s average weekly wage should have been calculated under § 910(a) or § 910(c). § 910(a) provides that the “average weekly wage is calculated by: 1) dividing the total earnings of the claimant during the fifty-two weeks preceding the injury by the number of days actually worked; 2) multiplying that figure by either 260 or 300, depending on whether the claimant worked a five- or six-day week . . .; and 3) dividing that figure by fifty-two.” Matulic v. Dir. Off. Of Workers’ Comp. Programs, 154 F.3d 1052, 1056 (9th Cir. 1998). In contrast, § 910(c) does not prescribe a fixed formula, and the ALJ must consider the employee’s ability, willingness, and opportunity to work with regard to “(1) the previous earnings of the injured employee in the job at which the employee was injured, and (2) previous earnings of similar employees, or (3) other employment of the inured employee.” Palacios v. Campbell Indus., 633 F.2d 840, 843 (9th Cir. 1980). MARTIN V. SUNDIAL MARINE TUG & BARGE WORKS 3 The panel held that claimant was not bound by his initial stipulation that § 910(a) applied. Claimant contended that using § 910(a) to determine the average weekly wage for a five-day worker who worked 264 days during the relevant year violated the statutory scheme. The panel held that this was an issue of first impression. The § 910(a) formula presumptively applies to calculating a five- day workers’ average weekly wage, but the panel analyzed whether the use of § 910(a) would be unreasonable or unfair under the circumstances of the case. The panel held that the statutory presumption was not rebutted as a matter of law simply because § 910(a) would slightly underestimate earning capacity because the claimant worked in excess of 260 days. The legislative history of the Act suggested that Congress did not envision application of § 910(c) under these circumstances. The use of § 910(a) in this case was not the kind of “harsh result” that Congress sought to avoid in enacting § 910(c). The panel concluded that the ALJ and the BRB did not err in using the § 910(a) formula to calculate claimant’s weekly wage. The panel addressed the remaining issues in a concurrently filed memorandum.
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