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Benefits Review Board Vacates ALJ’s Decision For Nominal Award Based Upon Stateside Wages Opposed To Average Weekly Wage As Strictly Set Forth By Section 8(c)

In the matter of Daniel S. Raymond v. Blackwater Security Consulting, LLC., the claimant was injured on May 30, 2007, while working in security for the United States Ambassador in Afghanistan. He injured his back during physical training.

The claimant completed his one-year contract in Afghanistan and returned to the United States in August 2007. The claimant filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act as extended by the Defense Base Act.

The Administrative Law Judge (ALJ) determined that the claimant’s average weekly wage was $2897.95 entitling the claimant to the maximum temporary total disability rate of $1144.44 The ALJ found that temporary total disability benefits were due from August 29, 2007 to November 28, 2007. The ALJ further ordered permanent total disability benefits for the period November 29, 2007 to January 6, 2008. It was stipulated that the claimant returned to post-injury alternate work on January 7, 2008. In 2008, his wage-earning capacity was $798.83 per week. In 2009, the wage-earning capacity was $985.51 per week. The claimant testified that he would have continued to renew his contract overseas but would have returned to the United States by August 2011. The issue in dispute stems from the calculation of the permanent partial disability benefit.

Permanent partial disability benefits are calculated pursuant to 33 USCS § 908(c)(21) which states:

“the compensation shall be 66 2/3 % of the difference between the average weekly wages of the employee and the employee’s wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.”

In 2009, the difference between his average weekly wage of $2897.95 and wage earning capacity of $985.51 was $1912.44. Two thirds of $1912.44 equals $1,274.96 but this is subject to the maximum rate of $1144.44. The ALJ did not follow the strict dictates of Section 8(c)(21). The employer argued that the claimant should not have the advantage of the higher overseas wage on an indefinite basis when the claimant intended to return stateside where he earned a lower pre-accident wage that was consistent with his post-accident wage once stateside. The ALJ was persuaded by this argument. He noted that the claimants work overseas was for a limited duration and determined that the pre and post accident state-side wages were similar. Based upon this reasoning, he found that post-accident wage earning capacity was minimal upon his return to the states. He ordered a nominal award of $1 per week from September 1, 2011 forward for payment of permanent partial disability benefits.

The claimant appealed to the Benefits Review Board (Board) arguing that the permanent partial disability award did not adhere to Section 8(c)21. The claimant argued that the ALJ was bound by the law as to the rate and period of disability. In a decision of April 28, 2011, the Board reversed the ALJ’s finding of a nominal award. The Board looked to the plain language of the statute and found that the ALJ improperly considered “speculative future factors” in determining benefits.

The Board noted, “the date claimant planned to leave his overseas work is not a factor in awarding benefits under the Act. See 33 U.S.C. § 908. In the first instance, the administrative law judge’s two-tiered award is premised on the occurrence of a presumed future event that does not take the claimant’s injured status into account.” The Board cited to Keenan v. Director, OWCP, 392 F.3d 1041, 38 BRBS 90(CRT) (9th Cir. 2004) in further support that the ALJ improperly calculated the permanent partial disability benefit. In Keenan, the claimant sought a modification for a higher rate based upon an anticipated promotion had he not been injured. This was rejected:

“The Ninth Circuit distinguished tort law where a “theoretical” wage may be relevant and held that the statutory formula under Section 8(c)(21) is straightforward: it contemplates wages at the time of the injury as the baseline for comparison with actual post-injury earning capacity.” Id. at 1045-1046.

The Board further explained that a nominal award is appropriate in cases where the work-related injury has not diminished the claimant’s current earning capacity but that there is a significant potential for the injury to result in a future reduced wage-earning capacity. The nominal award in such cases maintains the claimant’s right to seek a modification in the future pursuant to Section 22.

The Board held that the nominal award of $1 per week was improper and vacated this determination by the ALJ. The Board modified the determination for permanent partial disability benefits pursuant to Section 8(c) based upon actual loss of wage-earning capacity subsequent to August 31, 2011. As such, the claimant was entitled to the maximum rate of $1144.44 under the Board decision.

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