Before the Supreme Court decided Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350 (2012), two Circuits were at odds with one another about the meaning of “newly awarded compensation” per Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Ninth Circuit felt that “newly awarded compensation” meant newly entitled to compensation. The Supreme Court agreed. Id. The Eleventh Circuit, on the other hand, thought that an injured worker was “newly awarded compensation” when a formal compensation order was filed. See Boroski v. Dyncorp Int’l, 662 F.3d 1197 (11th Cir. 2011) (hereinafter Boroski I). After the Supreme Court affirmed the Ninth Circuit’s determination that “newly awarded” means “newly entitled,” see Roberts, the Court also vacated Boroski I and remanded the case to the Eleventh Circuit for further consideration.
On remand, the Eleventh Circuit determined that Roberts conclusively decided the “newly awarded compensation” issue on appeal. But it did not stop there. The Eleventh Circuit noted that Mr. Boroski lodged a second argument that the Supreme Court did not address in Roberts. The second argument concerns Section 6(c)’s “currently receiving compensation” clause. Section 6(c) states:
Determinations . . . with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.
Mr. Boroski’s argument was that “currently receiving” means “actual physical receipt.” Further, Mr. Boroski argued that Section 6(c) creates two different compensation schemes: “one for individuals who are totally and permanent disabled and one for all other forms of disability.” The “currently receiving” clause, he argues, applies solely to employees who are permanently totally disabled (“PTD”) while the “newly awarded compensation” clause applies to everyone else. All non-PTD claimants should have their benefits determined according to the year they became entitled, but all PTD claimants should have their benefits determined according to the time they “currently” or “actually” receive those benefits.
The Eleventh Circuit disagreed. At some point in time, every person entitled to LHWCA benefits is “newly awarded,” even PTD claimants. Because Section 6(c) applies globally to all Claimants, the “newly awarded” clause applies to PTD claimants, and a PTD claimant’s benefits must be calculated based upon when he first became entitled to benefits. Further, the court expressed serious concern with the math behind Mr. Boroski’s dual scheme approach:
This interpretation would create a conflict between the two clauses [in Section 6(c)]. Using this case as an example, Boroski’s employer would, following Roberts, apply the “newly awarded” clause and calculate Boroski’s weekly benefit amount for 2002 using the 2002 national average weekly wage. Because Boroski is entitled to the maximum rate under § 906(b)(1), his weekly benefit amount for 2002 would be $966.08. . . . If we accepted Boroski’s argument, however, the “currently receiving” clause would also apply to him, and his employer would be required to calculate his 2002 weekly benefit payment using the maximum rate for 2008; thus his weekly benefit amount would be $1,160.36. . . . As a result, for the year 2002, the two clauses would direct two different and irreconcilable weekly benefit payment amounts.
Thus, according to the Eleventh Circuit, “currently receiving compensation” means “currently entitled to compensation” for purposes of determining a claimant’s first year of disability benefits. Once the first year of benefits is determined, a PTD claimant is still entitled to annual cost of living adjustments, see Section 10(f), but those adjustments will be based on the employee’s wages at the time of injury. The PTD claimant gets the cost of living adjustment “but no more.” He does not get benefits “based on the national average weekly wage for the year in which the first payment [was] made.”
Note: The Eleventh Circuit cited the Director’s brief favorably. The Brief is available here.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)