BRB: Short Term Contract and Cyclical Employment Supports “Blended” AWW Calculation

The Benefits Review Board (“BRB”) published a new employer-friendly average weekly wage (“AWW”) decision further clarifying the method for calculating a Defense Base Act (“DBA”) claimant’s AWW.

Claimant’s overseas employment was followed, on two occasions, by a return to stateside employment.  At the time of his injury, Claimant was employed as a K-9 handler in Afghanistan pursuant to a six-month contract.  He sustained left lower extremity injuries when an improvised explosive device detonated, and he has not worked since the date of the injury.  The dispute that developed between the parties concerned Claimant’s AWW.  Following a trial, the Administrative Law Judge (“ALJ”) determined that Claimant’s AWW was only $1,029.50, which was “based on a blend of claimant’s stateside earnings and his contract rate of pay with employer in the year prior to his injury.”  The ALJ used Section 10(c) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) to determine Claimant’s AWW.  Under Section 10(c), an ALJ must arrive at a sum which reasonably represents an injured worker’s annual earning capacity at the time of his injury.

The seminal case concerning the AWW of DBA employees is K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009).  In that case, the BRB “held that where claimant is injured while working overseas in a dangerous environment in return for higher wages under a long-term contract, his annual earning capacity should be based upon the earnings in that job as they reflect the full amount of the annual earnings lost due to the injury.”  Simons, 43 BRBS at 21.  But, there is an exception: “if the record contained credible evidence that a claimant’s employment overseas was in fact, or was intended to be, short-term, i.e., for less than a one-year contractual term, the result here [exclusive use of overseas earnings] would not necessarily control.”

Here, the exception applied, and the BRB affirmed the ALJ’s use of a blended approach to the determination of Claimant’s AWW.  Because of the short-term nature of the employment contract (six months), and Claimant’s rotation of stateside and overseas employment, an AWW calculation that combined war zone and stateside wages was warranted.  Claimant’s war zone employment was cyclical, and his employment history interspersed domestic employment in Louisiana with overseas employment.  Finally, Claimant did not demonstrate “a long-term commitment to overseas employment.”

BRB Decision: Jasmine v. Can-Am Protection Grp., Inc., BRB No. 11-0610 (04/09/2012) (published).

ALJ Decision: Jasmine v. Can-Am Protection Grp., Inc., 2010-OALJ-430 (06/02/2011).

Jon Robinson
As a Member at Mouledoux, Bland, Legrand & Brackett, Jon Robinson focuses his practice on the representation of employers and carriers in matters arising under the Longshore and Harbor Workers' Compensation Act, the Defense Base Act, and the War Hazards Compensation Act. He can be contacted at (504) 595-3000 or by e-mail at jrobinson@mblb.com. Follow Jon on Twitter: @MrJonRobinson
Jon Robinson