The K.S. [Simons] Decision is Limited to Dangerous Locales Like Iraq and Afghanistan

In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent, Uzbekistan.  Although the decision does not focus entirely on average weekly wage calculations, the portion that does is interesting.  Claimant argued that the administrative law judge erred “by not relying on claimant’s contract rate with employer, or alternatively, by not averaging the highest earnings claimant received while working overseas between 2000 and September 2004.”  The Board disagreed. 

Section 10(c) of the Longshore and Harbor Workers’ Compensation Act is geared towards arriving “at a sum that reasonably represents the claimant’s annual earning capacity at the time of his injury.”  Here, the ALJ rationally concluded that claimant’s earnings should include both the earnings at the time of injury and the earnings in similar work claimant performed within the preceding 52 weeks.

My favorite part of the decision, however, is the following footnote:

Claimant’s reliance on the Board’s decision in K.S. [Simons] v. Serv. Employee’s Int’l, Inc., 43 BRBS 18, aff’d on recon., 43 BRBS 136 (2009)(en banc), for the proposition that the administrative law judge erred by not calculating his average weekly wage based solely on his contract of employment with employer is misplaced.  Simons involved overseas work in a dangerous environment under a long-term contract.  There is no evidence here that claimant’s work in Uzbekistan involved the type of dangerous conditions encountered in Iraq or Afghanistan.

So, K.S. [Simons] has limited application.  It only applies to overseas work that involves “the type of dangerous conditions encountered in Iraq or Afghanistan.”  And K.S. [Simons] requires an evidentiary showing of the dangerousness that the employee encountered.