It’s time to talk about the way insurance carriers are using Section 10(i) in psychological disability claims to reduce an injured worker’s average weekly wage (“AWW”). Essentially, carriers are misapplying Section 10(i), which is sometimes called Section 910(i), by taking it out of the context in which it was enacted. They are using the statute to artificially deflate–sometimes nullify–an injured worker’s AWW. The irony is that Section 10(i) was enacted to help a particular class of injured workers: retirees. Make no mistake, this is an important issue. Over the past year, I have seen an increasing number of Section 10(i) arguments. Before every mediation, before every formal hearing, the carriers I face off against throw Section 10(i) into the mix. Some do so knowing full well that their Section 10(i) argument is completely bogus. What is an Average Weekly Wage? An average weekly wage is pretty much exactly what itRead more
Once again it is time to trudge through the murky waters of average weekly wage calculations. That’s how the Defense Base Act industry feels to me right now. Some of the average weekly wage (or “AWW”) arguments I am seeing lately from carriers are heavy-handed and perhaps disingenuous. So, a series of AWW posts is in order. I am going to start with AWWs for employees who were injured in their first year of overseas employment. That is the focus of this post. Below, I discuss the overall competing interests in an AWW calculation, the original K.S. decision, the effect of vacating the K.S. decision (as opposed to the AWW equation used in K.S.), and why this discussion is needed now. Finally, I end this post by quoting in full the Benefits Review Board’s Miranda decision from 1981. The decision–which is alive and well–is precedent; but it is not available onRead more
The Benefits Review Board updated its website to include the decisions it reached in January 2016. One of the decisions, Clark v. Dyncorp International, struck me as particularly relevant to an average weekly wage argument that I am hearing in many DBA cases. The argument pertains to Section 10(i) of the Longshore and Harbor Workers’ Compensation Act. Some carriers are using Section 10(i) to try and slash an injured contractor’s average weekly wage. I am presently working on a longer post addressing this argument. Still, the Clark decision is so new that I thought it prudent to post about it ASAP. Interestingly, the BRB’s Clark decision does not cite Section 10(i). But the ALJ’s decision does. See Clark v. Dyncorp Int’l, 2014-LDA-00783 (OALJ Dec. 11, 2015). Reading through the BRB’s opinion, it becomes readily apparent that the opinion easily fits into the Section 10(i) puzzle. Frankly, I hope that theRead more
The Office of Workers’ Compensation published the new National Average Weekly Wage for the 2016-2017 fiscal year. National Average Weekly Wage: $718.24 Maximum Compensation Rate: $1,436.48 Minimum Compensation Rate: $359.12 Percent Increase: 2.17% Click on this hyperlink to access the NAWW chart spanning from 1973 to 2017.
The method for calculating an injured worker’s average weekly wage is often a hotly contested issue in Defense Base Act claims. Insurance carriers want to reduce the claimant’s average weekly wage (or “AWW”) because the smaller the AWW, the cheaper the claim. Of course, injured workers want to establish a higher AWW for the opposite reason. Recently, I’ve fielded a few questions about the AWW for injured workers with delayed onset occupational diseases, including pulmonary and psychological injuries. How should the parties calculate the injured worker’s AWW when the disease arose after the claimant returned to the United States? Should the parties calculate the AWW using overseas wages prior to the last date of employment, stateside wages, or the national average weekly wage? And, perhaps most importantly, can carriers use the Longshore and Harbor Workers’ Compensation Act’s retirement provisions to reduce a contractor’s AWW? I prepared this blog post withRead more