A footnote in Roberts v. Sea-Land Services, the Supreme Court’s recent Longshore and Harbor Workers’ Compensation Act decision, is leading to a reevaluation of each claimant’s compensation rate. Footnote 7 states:
Roberts accurately notes that in some cases, the time of injury and the time of onset of disability differ. We have observed that “the LHWCA does not compensate physical injury alone but the disability produced by that injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). From that principle, lower courts have rightly concluded that when dates of injury and onset of disability diverge, the latter is the relevant date for determining the applicable national average weekly wage. See, e.g., Service Employees International, Inc. v. Director, OWCP, 595 F.3d 447, 456 (CA2 2010); Kubin v. Pro-Football Inc., 29 BRBS 117 (1995) (per curiam).
What does this mean? It means that the date of an injured worker’s injury controls the average weekly wage (“AWW”) determination. But, most importantly, the date when the worker’s disability begins will control the claimant’s compensation rate.
Consider this example. A Defense Base Act claimant earning $3,000 per week in Afghanistan is injured on September 1, 2012. Yet his disability does not begin until October 3, 2012, when he can no longer work because of the injury. In this situation, the claimant’s AWW is $3,000, which was determined on the date of injury, September 1, 2012. His compensation rate, however, is $1,325.18, the maximum compensation rate in effect on the date his disability began, October 3, 2012.
Each year, on October 1st, the Office of Workers’ Compensation Programs identifies a new maximum compensation rate. For the year between October 1, 2012 and September 30, 2013, the maximum compensation rate is $1,325.18. In our example, had the claimant’s disability began on September 1, 2012, simultaneously with the date of injury, then his compensation rate would have been $1,295.20, which was the maximum rate in effect between October 1, 2011, and September 30, 2012.
Accordingly, when determining what amount to pay an injured worker, an employer and carrier must identify both the date of injury and the date when the injured worker’s disability began.