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 on the BRB’s website.
Defense Base Act Average Weekly Wage:
An injured worker’s AWW is one of the biggest issues in Defense Base Act claims. The higher the average weekly wage, the better it is for the claimant. The lower the AWW, the better it is for the carrier.
To limit the value of a DBA claim, carriers try to establish low AWWs. This war has been going on for over a decade…and it is ramping up again.
From what I have seen, there is one particular type of DBA case that raises the ire of carriers more than any other. When a claimant was employed in a war zone for less than one year before the injury, carriers will fight tooth and nail to establish a low AWW.
What’s weird is that these arguments from the DBA insurance carriers might be double-dealing. Really, establishing a low AWW is a bonus for the carrier. Think about it. The carrier charged the employer a workers’ compensation insurance premium based on the employer’s payroll (“typically stated in terms of dollars per $100 of payroll”). The more dangerous the job, the higher the premium. At the time of injury, the claimant’s salary–including the high AWW–was part of the payroll that helped form the basis for the insurance premium calculation. So, if a carrier can establish a low AWW in a DBA claim, then it reaps the rewards of charging a higher DBA insurance premium to the employer and paying out less in DBA disability benefits to the claimant. It’s a win-win. Meanwhile carriers continue to increase their premiums.
Recent History:
Back in 2009, the Benefits Review Board–which is the initial appellate body for DBA claims–issued a decision called K.S. v. Service Employees International. I hyperlinked the original decision, which was upheld on reconsideration; but heads-up…K.S. has been vacated. Still, to talk about Miranda (quoted below), I have to talk about K.S.
In my opinion, the Benefits Review Board (or “BRB”) got it right in K.S. The BRB understood the context of contractor employment and the need to focus on earnings potential. In K.S., the claimant worked as a truck driver in Kuwait and Iraq beginning on November 11, 2003. He injured his left hand on January 11, 2004, and ended up totally disabled due to reflex sympathetic dystrophy.
The parties agreed that the claimant was totally disabled, but disagreed about the AWW. The carrier argued for a “blended” approach for calculating the AWW that combined the claimant’s earnings overseas and in the U.S. during the 52 weeks prior to his injury. The claimant argued that his AWW should only include overseas earnings. The BRB agreed with the claimant, stating:
Where, as here, claimant is injured after being enticed to work in a dangerous environment in return for higher wages, it is disingenuous to suggest that his earning capacity should not be calculated based upon the full amount of the earnings lost due to the injury. While the administrative law judge is afforded discretion in determining an employee’s annual earning capacity, Section 10(c) directs the administrative law judge to do so “having regard to the previous earnings of the injured employee in the employment in which he was injured.” The goal of Section 10(c) in this regard is intended to result in a sum that reflects the potential of claimant to earn absent injury.
The BRB cited to a few important decisions, like Proffitt v. Service Employees International and Miranda–both published precedent.
The calculation used in K.S. was pretty simple–which is what workers’ compensation should be. Suppose that the claimant worked overseas for 40 weeks and earned $100,000. In that situation, the AWW would be $2,500 (which is $100,000 divided by 40 weeks). Or, if a claimant worked overseas for 14 weeks and earned $45,500, then the AWW would be $3,250 (which is $45,500 divided by 14 weeks). Alternatively, the parties could even look to the contract rate, which would usually support the “amount earned divided by time worked” calculation. But the simplicity would end within a few short years.
Think back to what I said earlier. Carriers fight for lower AWWs. That’s why they now focus on K.S. and how it was vacated by the Southern District of Texas. See Service Emp. Int’l, Inc. v. Dir., OWCP, No. H-11-01065, 2013 WL 943840 (S.D. Tex. 03/11/2013).
K.S. Vacated:
So, what does “vacated” mean? It means that a court order or judgment has been cancelled or rendered null and void. Like it didn’t happen.
But does that mean that the equation used to calculate the AWW in K.S. is dead too? Not at all.
Reduced to it’s simplest form, the Southern District of Texas merely said that administrative law judges have the discretion to determine an AWW. In the Benefits Review Board’s K.S. decisions, the BRB abused its discretion when it restricted the ALJs’ “wide discretion.”
The Southern District of Texas specifically stated that its “opinion does not address whether the ALJ correctly calculated Smith’s AWW on remand.”
Why Bring This Up Now?
I’m bringing this up now because some of the carriers I deal with forgot that K.S. was a decision that applied an equation, not a decision that invented an equation. And some carriers are taking their AWW deductions too far, applying a 52 week divisor no matter if the claimant was injured 4 weeks or 40 weeks into their overseas employment.
Below is an important, decades-old decision called Miranda. In Miranda, the BRB concluded that the “actual earnings by the claimant [were] not the controlling factor when they reflect[ed] claimant’s earlier work in a lower paying job.”
You can read the decision for yourself–it has been retyped in full–but the lesson still holds true today. An administrative law judge still has the discretion to calculate an AWW using solely the wages paid during the higher paying employment where the claimant was injured.
Must a judge calculate a claimant’s AWW using solely overseas earnings? No. May a judge calculate a claimant’s AWW using solely overseas earnings? Yes…absolutely.
And finally, before I quote Miranda, you may be wondering why I am focusing on this BRB case from 1981. First, some people do not know that Miranda exists. Second, it’s not on the BRB’s website, despite its importance, because of the age of the decision. Third, it was a major decision during the days when K.S. ruled supreme, yet it has not been cited as much recently. Consequently, this is a reminder that Miranda is alive and well, just like the AWW equation used in the now-vacated K.S. decision.
Miranda v. Excavation Constr., Inc.:
Opinion
MILLER, Administrative Appeals Judge:
This is an appeal by the claimant and cross-appeal by the employer from the Decision and Order of Administrative Law Judge Vernon C. Field pursuant to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 901 et seq., as extended by the District of Columbia Workmen’s Compensation Act, 36 D.C. Code § 501 et seq. (hereinafter, the Act).
On December 10, 1974, claimant was injured while removing timbers from a bridge for employer. Based on the evidence presented, the administrative law judge concluded that claimant was permanently totally disabled. Decision and Order, slip op. at 4–5. The administrative law judge also concluded that, under Section 10(c) of the Act, 33 U.S.C. § 910(c), claimant’s average weekly wage was $230.84. Decision and Order, slip op. at 3. In addition, the administrative law judge awarded certain medical expenses under Section 7 of the Act, 33 U.S.C. § 907, and an attorney’s fee under Section 28 of the Act. 33 U.S.C. § 928.
Both the employer and claimant appeal. The employer contends that the administrative law judge erred in finding claimant permanently totally disabled. Both employer and claimant contend that the administrative law judge incorrectly calculated claimant’s average weekly wage. Finally, claimant contends that the administrative law judge erred in not awarding certain claimed moving expenses and in failing to award the correct amount of interest.
The Decision and Order of the administrative law judge must be affirmed if it is supported by substantial evidence, is not irrational, and is in accordance with the law. 33 U.S.C. § 921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). Substantial evidence has been defined as “more than a mere scintilla of evidence,” or that quantum of evidence which a “reasonable mind might accept as adequate to support a conclusion”. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
As noted above, employer contends that the administrative law judge erred in finding claimant permanently totally disabled. The administrative law judge concluded that claimant’s injury became permanent on October 28, 1977. Decision and Order, slip op. at 3. The employer contends that an injury does not become permanent until further recovery from, or lasting improvement of, the injury can no longer be anticipated. Employer argues that there is no testimony to this effect and that the administrative law judge’s conclusion is therefore erroneous.
An injury is permanent when claimant reaches maximum medical improvement, McCray v. Ceco Steel Co., 5 BRBS 537 (1977), or when claimant’s condition has lasted for a lengthy or indefinite duration, as distinguished from one in which recovery awaits a normal healing period. Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969).
There is no merit in employer’s argument that there is no evidence to support the administrative law judge’s conclusion that claimant’s injury became permanent on October 28, 1977. Specifically, Dr. Charles Mosee, on whom the administrative law judge chose to rely, testified that claimant’s condition became permanent on October 28, 1977. Hearing Transcript at 90–91. Additionally, three other doctors, all of whom examined claimant after October 28, 1977, were of the opinion that claimant’s condition became permanent at least as of the date of their examinations. See Hearing Transcript at 21–25, 42–43, 61–62. Accordingly, there is substantial evidence to support the administrative law judge’s conclusion as to the date of permanency, and that conclusion is hereby affirmed.
Regarding the extent of claimant’s disability, the administrative law judge concluded that claimant was totally disabled because claimant was unable to perform his usual employment and because employer failed to meet its burden of showing that suitable alternate employment was available to claimant. Decision and Order, slip op. at 4– 5.
Employer argues that the administrative law judge erroneously found that claimant was totally disabled because the record contains no objective evidence of a physical impairment. Rather, employer argues, the record contains only claimant’s subjective complaints without any objective findings. Employer further contends that claimant has failed to establish that he is unable to perform his usual employment. Finally, employer apparently argues that, even if claimant has established that he cannot perform his usual employment, the burden to show suitable alternative employment has not shifted to employer because claimant has shown neither objective evidence of a physical impairment nor any evidence that a good faith work search has taken place.
Employer’s contentions are without merit. With regard to employer’s contention that there is no objective evidence of a physical impairment, a finding of disability may be based on claimant’s credible complaints of pain alone. Eller and Co. v. Golden, 12 BRBS 348, 620 F.2d 71 (5th Cir. 1980), aff’g 8 BRBS 846 (1978); Perini Corp. v. Heyde, 306 F. Supp. 1321 (D.R.I. 1969). There is no requirement in the Act that medical testimony be introduced. Ballard v. New Port News Shipbuilding & Dry Dock Co., 8 BRBS 676 (1978); Ruiz v. Universal Maritime Service Corp., 8 BRBS 451 (1978); McIntosh v. Parkhill-Goodloe Co., 4 BRBS 3 (1976), aff’d mem., 550 F.2d 1283 (5th Cir. 1977), cert. denied, 434 U.S. 1033 (1978); Woodham v. U.S. Navy Exchange, 2 BRBS 185 (1975).
However, our decision need not rest on this narrow ground since, contrary to employer’s contention, there is in the record much evidence of objective findings of a physical impairment. The administrative law judge found that claimant sustained an injury to the lumbar and cervical area of his back, i.e., a physical impairment. While employer apparently is of the opinion that this finding is based solely on subjective complaints, the record contains several medical opinions which strongly disagree. Dr. Mosee noted that claimant had weak dorsal flexion, osteophytes in his vertebrae, and spasms in his neck and back, and was unable to walk, stand, or sit for long periods without experiencing pain and discomfort. Hearing Transcript at 89–91. Dr. Machado diagnosed claimant as having cervical and chronic low back strain and osteophyte changes. Hearing Transcript at 41. Dr. Lopez found moderate to severe degenerative change compatible with spondylosis and residuals of cervical, thoracic, and lumbosacral strains with compressive lumbar radiculitis without any definite pattern. Hearing Transcript at 20–21. Dr. Fox noted that claimant had a limited range of motion about the lumbosacral spine, had marked pain on straight leg raising, and had considerable difficulty in walking. Hearing Transcript at 62.
Furthermore, there is substantial evidence to support the administrative law judge’s finding that claimant is unable to perform his usual employment. Dr. Lopez concluded that claimant was unable to engage in any productive employment. Hearing Transcript at 23–25. Dr. Machado concluded that claimant was permanently totally disabled as a result of his employment injury. Hearing Transcript at 42–43. Dr. Fox, claimant’s treating physician since May 4, 1979, opined that, as a result of claimant’s restricted movement, claimant was one hundred percent disabled with no possibility of improvement. Hearing Transcript at 62. Dr. Mosee testified that, as of his examination of October 19, 1977, claimant was totally disabled due to his inability to lift objects or sit, walk, or stand for long periods of time. Hearing Transcript at 91–92.
Lastly, employer’s contention that its burden of showing suitable alternate employment does not arise until claimant has shown an effort to obtain employment is without merit. Claimant need only show that he is unable to perform his usual employment. See, e.g., Base Billeting Fund, Laughlin Air Force Base v. Hernandez, 9 BRBS 634, 588 F.2d 173 (5th Cir. 1979); Diamond M. Drilling Co. v. Marshall, 8 BRBS 658, 577 F.2d 1003 (5th Cir. 1978), aff’g 6 BRBS 114, (1977); Bostrom v. I.T.O. Corp. of New England, 11 BRBS 63 (1979); Dantes v. Western Foundation Corp., 10 BRBS 541 (1979).
Since employer failed to introduce any evidence that there were suitable alternative employment opportunities available to claimant, the administrative law judge’s finding of total disability is affirmed.
The administrative law judge determined claimant’s average weekly wage under Section 10(c) of the Act by dividing $9,695.34, the amount claimant testified he reported as earnings in 1974, by 42 weeks, the number of weeks which the administrative law judge found claimant had worked in 1974. Thus, the average weekly wage for the 42 weeks worked in 1974 was $230.84. The administrative law judge then hypothesized that claimant would have earned the same wage if he had worked the other 10 weeks of the year and concluded that claimant’s average weekly wage was $230.84. Decision and Order, slip op. at 3.
Both parties, while agreeing that the administrative law judge properly used Section 10(c) of the Act, contend that the average weekly wage found by the administrative law judge is incorrect. The employer argues that claimant’s actual wages at the time of the injury should be used to determine claimant’s average weekly wage. However, employer argues that the $9,695.34 which claimant testified he reported as earnings in 1974 includes some income earned by claimant’s wife. The administrative law judge noted that there was evidence to this effect, but concluded that, since there was insufficient evidence to determine what portion of the total income was earned by claimant’s wife, it was reasonable to assume that all income should be attributed to claimant. Decision and Order, slip op. at 3. Employer argues that the administrative law judge’s conclusion is erroneous and that, since claimant failed to establish his actual earnings, the “minimum” should be used. (FN1)
FN1: Though unclear, the use of the word “minimum” is apparently a reference to Section 6(b)(2) of the Act, 33 U.S.C. § 906(b)(2), wherein the Act establishes a minimum limitation on compensation payments. Employer apparently feels that this minimum should be used whenever claimant fails to establish accurately the average weekly wage.
In addition, employer contends that the administrative law judge erroneously found that claimant worked only 42 weeks in 1974. Employer argues that, contrary to the administrative law judge’s finding, claimant did not lose four weeks during a move from Connecticut to Washington, D.C.
Claimant contends that his average weekly wage should have been based solely on his earnings for the seven or eight weeks in which he worked for employer, rather than on his entire 1974 earnings, the figure which was used by the administrative law judge. Claimant points out that his rate of pay while with employer was substantially higher than his rate of pay for the earlier part of 1974.
Section 10(c) of the Act is the proper provision for calculating claimant’s average weekly wage when claimant has received an increase in salary shortly before his injury. See Eckstein v. General Dynamics Corp., 11 BRBS 781 (1980); Feagin v. General Dynamics Corp., 10 BRBS 664 (1979); Sobolewski v. General Dynamics Corp., 5 BRBS 474 (1977), aff’d on other grounds sub nom. General Dynamics Corp. v. Benefits Review Board, 7 BRBS 831, 565 F.2d 208 (2d Cir. 1977). In such a situation, actual earnings by the claimant are not the controlling factor when they reflect claimant’s earlier work in a lower paying job. Bonner v. National Steel & Shipbuilding Co., 5 BRBS 290 (1977), aff’d in pertinent part, 600 F.2d 1288 (9th Cir. 1979).
Employer is correct in arguing that the inclusion of claimant’s wife’s income for purposes of calculating the average weekly wage was erroneous. Section 2(13) of the Act, 33 U.S.C. § 902(13), defines wages as the money rate at which the service rendered is recompensed under the contract of hiring. Since claimant’s wife was not working under claimant’s contract of hiring, it necessarily follows that wages received from her services may not be considered as wages under Section 2(13) and accordingly may not be included in a determination of average weekly wage under Section 10(c).
However, the claimant’s actual earnings, regardless of whether they include his wife’s income, are not the controlling factor in this case. See Bonner v. National Steel & Shipbuilding Co. Like Bonner, this case involves a claimant earning more money for a few weeks at the employment where he was injured than he earned in his previous employment. A calculation based on this substantial increase in wages at the employment where he was injured would best adequately reflect claimant’s earning potential at the time of his injury. Accordingly, this case must be remanded to the administrative law judge to consider the earnings of the claimant for the seven or eight weeks which he worked for employer and to recompute the average weekly wage in conformity with this opinion.
Claimant argues that the administrative law judge erred in denying claimant reimbursement for moving expenses incurred when he relocated from Washington, D.C., to Miami, Florida. The administrative law judge held that, in order for the moving expenses to be considered medical expenses under Section 7 of the Act, there must be a showing that the doctor prescribed the move. Decision and Order, slip op. at p. 6. The administrative law judge found that Dr. Mosee did not prescribe such a move, but only testified after the move that it might be helpful to claimant’s condition. Therefore, the administrative law judge concluded that claimant was not entitled to reimbursement for the moving expenses. Decision and Order, slip op. at 6.
The Board addressed the issue of when a claimant is entitled to moving expenses in Gilliam v. The Western Union Telegraph Co., 8 BRBS 278 (1978). It was held that a claimant is entitled to expenses involved in relocation if the expenses are reasonable and based on the medical needs of claimant. Id. at 282. The administrative law judge having credited a physician’s testimony that claimant’s condition would be alleviated and his pain lessened if he moved to a warmer climate, his award for moving expenses was affirmed as supported by substantial evidence. Id. at 281–82.
In the instant case, therefore, the administrative law judge committed error in denying claimant reimbursement for his moving expenses only because of an alleged failure to show that any doctor prescribed a move to claimant.
In any event, the administrative law judge’s characterization of Dr. Mosee’s testimony is not accurate. Dr. Mosee’s testified that:
During cool weather, he was having trouble as all people with back problems do. I thought he would maybe do better if it was warm — you know — a warm climate, and I talked to him with that, and he said that he was going to consider it, and he was going to entertain that idea, but I have not seen him since that time,… .
Hearing Transcript at p. 100. Dr. Mosee further testified that “warm weather would make it more comfortable. That’s why I suggested it”. Hearing Transcript at 104.
Accordingly, the administrative law judge failed both to apply the correct legal standard for awarding moving expenses and to characterize properly the medical opinion of Dr. Mosee. On remand, the administrative law judge is instructed to reweigh the evidence under the proper standard to determine whether the expenses involved in claimant’s relocation were reasonable and based on the medical needs of claimant.
The claimant next argues that he has received three checks, none of which were made out for the proper amount. Additionally, with regard to one of the checks, claimant argues that it was received more than ten days after it was due and that therefore claimant is entitled to a 20 percent penalty on this amount due. Claimant must pursue his allegations of checks made out for a lower amount than is proper and of late payments with the deputy commissioner. See 33 U.S.C. § 914(f).
Claimant next indicates a general dissatisfaction with his lawyers, including allegations that his attorneys did not work the number of hours which they stated in their attorney fee petition, that claimant, not his attorneys, paid for interpreters, and that claimant paid his attorneys without a fee being awarded by the deputy commissioner. These matters are also for the deputy commissioner’s consideration.
Accordingly, we affirm in part, vacate in part, and remand this case to the administrative law judge for further action in conformity with this opinion.
Concur SMITH, Chief Administrative Appeals Judge, concurring and dissenting:
I would affirm the permanent total disability award below, inasmuch as the ruling is supported by substantial medical evidence, rational, and in accordance with law. 33 U.S.C. § 921(b)(3); O’Keeffe v. Smith, Hunchman & Grylls Assoc., Inc., 380 U.S. 359 (1965). In addition, I concur in the decision to require reconsideration of the issue of reimbursement of claimant for relocation expenses, for the grounds set forth in the preceding opinion. However, I respectfully dissent from the majority’s resolution of the issue of average weekly wage.
In the Decision and Order below, the administrative law judge noted the parties’ “concession” that average weekly wage must be calculated pursuant to Section 10(c), since (1) claimant did not work substantially the whole of the year preceding the injury in the employment in which he was working at the time of injury and (2) there was no evidence submitted so as to enable a determination pursuant to Section 10(b). The administrative law judge thus proceeded to determine claimant’s average weekly wage with reference to Section 10(c). Decision and Order at 2.
The average weekly wage computation methods set forth in Section 10 are directed towards determining the claimant’s earning power at the time of injury. Orkney v. General Dynamics Corp., 8 BRBS 543, 545-546 (1978); Barber v. Tri-State Terminals, Inc., 3 BRBS 244, 249 (1976), aff’d sub nom. Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752 (7th Cir. 1979). Section 10(a) applies where an injured employee has “worked in the employment in which he was working at the time of injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury…” Section 10(b) applies if the injured employee “shall not have worked [in the employment in which he was working at the time of injury] during substantially the whole of [the year immediately preceding his injury]…” Section 10(c) applies “[i]f either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied…” [emphasis added]. 33 U.S.C. §§ 910(a), (b), (c).
Factors which the Board has required to be present so as to permit computation of annual earning capacity using other than the methods established in Section 10(a) or Section 10(b) are claimant’s willingness and ability to perform the work on which the average weekly wage is to be based, the opportunity to obtain such work, and some special circumstances beyond claimant’s control which render it unfair solely to invoke previous earnings or similar earnings. Jackson v. Potomac Temporaries, Inc., 12 BRBS 410, 415 (1980). Thus, application of Section 10(c) may be proper when a claimant demonstrates that, but for the injury, he would have earned a greater sum under normal working conditions. See, e.g., Barber v. Tri-State Terminals, Inc., supra. Section 10(c) may also be applied in situations involving an industry where employment is casual, irregular, seasonal, intermittent or discontinuous. See Palacios v. Campbell Industries, No. 78-3358 (9th Cir. Dec. 4, 1980).
Accordingly, by express statutory mandate and under the relevant case law, Section 10(c) may not be invoked until it has been established that neither Section 10(a) nor Section 10(b) reasonably and fairly may be applied. Palacios v. Campbell Industries, supra.
In the instant case, the administrative law judge summarily concluded that Section 10(a) was not applicable since claimant did not work substantially the whole of the year preceding the injury in the employment in which he was working at the time of the injury. The record suggests that, during the year preceding the injury (and throughout most of his adult life), claimant was employed as a “general laborer.” See Transcript at 115–116; see also Decision and Order at 2. However, if it was concluded below that claimant was not employed in one generic category of employment, for the same or another employer, during the year preceding his injury, the administrative law judge was required to so state with specificity and thus facilitate appellate review of such findings and conclusions. 33 U.S.C. § 919(d); 5 U.S.C. § 557(c).
The administrative law judge further concluded that Section 10(b) could not be applied on the ground that no evidence had been submitted regarding the wages of a “similar employee.” Section 10(b) directs that the average weekly wage be based upon the wages of an employee of the same class as claimant who worked substantially the whole of the year preceding claimant’s injury in the same or similar employment. Thus, to apply Section 10(b), the administrative law judge must have evidence of the substitute employee’s wages. Eckstein v. General Dynamics Corp., 11 BRBS 781 (1980); Lozupone v. Stephano Lozupone & Sons, 12 BRBS 148 (1979). Although Section 10(c) may be invoked when insufficient evidence is presented at the hearing to permit proper application of Section 10(b) (see Palacios v. Campbell Industries, supra), the administrative law judge has an affirmative obligation under the Act to inquire fully into matters at issue and therefore to receive or request evidence relevant to matters fundamental to the disposition of issues in the case. See 33 U.S.C. § 923(a); 20 C.F.R. § 702.338. Inasmuch as Section 10(c) only may be utilized when the other subsections may not be reasonably and fairly applied, it was incumbent upon the administrative law judge to request the evidence upon which the decision properly might be rendered. See Townsend v. Pepco, 13 BRBS 127, 132-132 (1980). (FN2)
FN2. In the lead opinion, my colleague noted that Section 10(c) may be invoked when a claimant has received an increase in salary shortly before the injury. Application of Section 10(b) would also allow consideration of the increase in claimant’s wages with the instant employer, since claimant’s average weekly wage would be calculated with reference to the wages of an employee “of the same or similar employment in the same or a neighboring place.” 33 U.S.C. § 910(b).
In light of the foregoing, I would reverse the average weekly wage determination rendered below, and remand the case for further findings and conclusions with regard to the issue of average weekly wage. In addition, I concur in the conclusion reached by my colleagues that, to the extent that claimant’s wife’s income was considered in the determination of claimant’s average weekly wage, the average weekly wage was erroneously calculated below.
I would therefore reverse and remand the Decision and Order below on the above-stated grounds.
SO ORDERED.
