In a new published opinion, the Ninth Circuit addressed Section 6(c) of the Longshore and Harbor Workers’ Compensation Act. Section 6(c) states: “Determinations under subsection (b)(3) [which deal with the determination of the national average weekly wage] 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.” Although the court focused on the meaning of the words “award” and “awarded,” the holding essentially addressed when those words are synonymous with “entitlement.”
In Roberts, the claimant injured his neck and shoulder when, in 2002, he slipped on a patch of ice. His employer voluntarily paid compensation, but those payments stopped in May 2005. Following a hearing before an administrative law judge (“ALJ”), the court awarded claimant temporary total disability (“TTD”) from March 11, 2002 through July 11, 2002; permanent total disability (“PTD”) from July 12, 2005 through October 9, 2005; and permanent partial disability (“PPD”) benefits from October 10, 2005 through the present. The claimant was a high wage earner, and he was entitled to the maximum compensation rate. The ALJ applied the maximum compensation rate for 2002, but subsequently used the fiscal year 2006 maximum rate for the short period of time between October 1, 2005 and October 9, 2005.
The Ninth Circuit opened its analysis with an English lesson. It contended that “[t]he Act does not expressly define the terms ‘award’ or ‘awarded.’” Although the Supreme Court has used the transitive verb “award” to mean “to give or assign by sentence or judicial determination,” here the Ninth Circuit focused on use of “award” as a noun. By doing so, it reasoned that the terms “award” and “awarded” are used differently throughout the Act. Sometimes an “award” means a formal compensation order—see, e.g., 33 U.S.C. §§ 913(a), 914(a) and 928 (a)—but other times, the term “award” means “entitlement,” without reference to a formal order. For instance, the court reasoned that Section 8 “uses the terms ‘award’ and ‘awarded’ to refer to an employee’s entitlement to compensation under the Act generally, separate and apart from any formal order of compensation.” Additionally, the Ninth Circuit noted that Sections 4, 10(h)(1), 14(a), and 33(b) supported its “entitlement” contentions.
Turning, then, to Section 6(c), the court deciphered the meaning of “newly awarded compensation.” The Ninth Circuit now holds that “an employee is ‘newly awarded compensation’ within the meaning of Section 6(c) when he first becomes entitled to compensation.” Applied to the facts of this case, the claimant became entitled to compensation when he was injured in 2002, and the ALJ correctly used the 2002 maximum compensation rate for those periods of time.
From there, the court addressed another portion of Section 6(c): “currently receiving compensation for permanent total disability.” It determined that a claimant is “currently receiving” PTD benefits when he is first entitled to receive such benefits, whether he is being paid or not. Here, the ALJ erred by failing to use the maximum compensation rate for 2005 for the period of time that Claimant was entitled to PTD benefits. Viewing Roberts in its entirety reveals that the maximum compensation rate for 2005 applies only to Claimant’s PTD benefits, and that the maximum compensation rate for 2002 applies to the TTD period before it and the PPD period after it. In other words, the 2005 rate is sandwiched by the 2002 rate.
There are surprising omissions in the Ninth Circuit’s decision. For instance, there was no discussion about Section 19, which deals with the procedure of Longshore claims. Section 19(e) states, “[t]he order rejecting the claim or making the award (referred to in this Act as a compensation order) shall be filed in the office of the deputy commissioner…” See 33 U.S.C. § 919(e). It would seem that Congress provided a parenthetical definition that the court should have addressed.
Additionally, the court’s reference to Section 14(a) to support its theory that “award” is sometimes synonymous with “entitled” appears incorrect. Section 14(a) states, “[c]ompensation under this Act shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.” If the Ninth Circuit’s reasoning is used, Section 14(a) would require periodic and prompt payment to non-controverted claims, where the claimant is “without entitlement.” Obviously, this is incorrect and Congress most likely intended “award” in Section 14(a) to mean “compensation order.” Implementing regulations suggest that the Department of Labor would agree. See 20 C.F.R. § 702.231.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)