Maximum Weekly Rate

Maximum Weekly Rate
Back on March 14, 2011, I mentioned that an Outer Continental Shelf Lands Act case (OCSLA) (43 U.S.C. 1331 et seq.) was at the U.S. Supreme Court to determine whether and where there is a situs of injury requirement in the OCSLA.  Oral argument was held in that case ( Pacific Operations Offshore LLP v. Vallodolid, Docket No. 10-507) on October 11, 2011, and we are waiting for the decision of the Court.  The OCSLA is an extension of the Longshore Act.

Remarkably, there currently is a second Longshore Act case at the Supreme Court ( Roberts v. Sea-Land Services, Inc., et al., 625 F.3d 1204 (9th Cir. 2010)), with oral argument scheduled for January 11, 2012.

The issue in Roberts is: What maximum weekly rate applies to compensation for disability under the Longshore Act?  Is it the maximum in effect as of the date of first entitlement to permanent total disability (in this case 7/12/05), or is it the higher, later maximum as of the date of the Administrative Law Judge’s Compensation Order (in this case 10/12/06)?    

This case involves benefits being paid at the maximum rate.  This worker’s average weekly wage ($2,853.08) is so high in relation to the NAWW at all times that the issue is significant. And it’s about time we’re settling the question, since the language to be interpreted has been in the Act since the 1972 Amendments.

This case could end up costing maritime employers and their insurance carriers money in the form of higher benefit rates in maximum rate cases. 

The Court will interpret the following language: 

Section 906(c) – Applicability of determinations.  Determinations under subsection (b)(3) (new NAWW) 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 (emphasis added).

The weekly rate at which a disabled worker is paid a PTD benefit is increased each October 1 and is capped at 200% of the NAWW in effect during the period he is “newly awarded” benefits.  Is this the date that he first becomes entitled or is it the later date of an ALJ’s Compensation Order?   


Mr. Roberts’ date of injury is February 24, 2002.

The ALJ’s Compensation Order, dated October 12, 2006, found that Mr. Roberts is entitled to:  temporary total disability (TTD) from March 11, 2002 to July 11, 2005, permanent total disability (PTD) from July 12, 2005 to October 9, 2005, and permanent partial disability (PPD) from October 10, 2005 and continuing. 

If Mr. Roberts was “newly awarded” PTD benefits during the period of his first entitlement on July 12, 2005, his benefit is $1,047.16 per week increasing to $1,073.64 on October 1, 2005, with the new NAWW and maximum.

If Mr. Roberts was “newly awarded” PTD benefits on the date of the ALJ’s Compensation Order on October 12, 2006, his weekly rate for PTD beginning back on July 12, 2005 is $ 1,114.44.  There is no increase on October 1, 2005, since he would already be above the maximum for that year based on the retroactive application of the maximum in effect on the date of the ALJ’s Order.

The amount at stake in this case is only $830.99, since Mr. Roberts’ entitlement changed from PTD to PPD on October 10, 2005, after only 3 months of PTD.  PPD benefits based on a loss of wage earning capacity are paid at two-thirds of the difference between the worker’s AWW and his residual wage earning capacity, are capped at the maximum on the date of injury, and are not subject to annual increases.  In the typical case, however, PTD benefits are paid for life and the difference per week based on a higher maximum rate for each affected disabled worker, multiplied in each case by life expectancy, would add up significantly for maritime employers.

Circuit Conflict

After the petition for writ of certiorari was granted on September 27, 2011, the Eleventh Circuit published Bernard D. Boroski v. Dyncorp International, et al., a Defense Base Act case (the Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act which incorporates the relevant statutory provisions).  The Eleventh Circuit reached conclusions opposite to those of the Ninth Circuit in Roberts.

There is also a Fifth Circuit case that supports Mr. Roberts’ position, but the Ninth Circuit and the BRB marginalized it as lacking pertinent analysis (Lovett R. Wilkerson v. Ingalls Shipbuilding, Inc. and Director, Office of Workers’ Compensation Programs, 125 F.3d 904 (5th Cir. 1997)).

This case could go either way.  The term “award” is used inconsistently in the Act, and there is support in the statute for both arguments.

If Mr. Roberts wins his case, then, at least going forward, virtually all injured workers eligible for payment at the maximum weekly rate would be entitled to payment at the higher rate in effect on the date of the ALJ’s Compensation Order retroactive to the date of their first entitlement to PTD. 

You can read more about the Roberts case at my posting on 


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.
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