Ninth Circuit Says AWW Must Be Determined At the Time of Injury and Without Reference to Post-Employment Plans

In a brief Memorandum Opinion, the Ninth Circuit determined that a Defense Base Act claimant’s average weekly wage must be determined at the time of injury, even if Claimant planned to return stateside after his overseas employment.  Here, Employer argued that the Benefits Review Board (“BRB”) should not have overturned the Administrative Law Judge’s factual determination that Claimant planned to cease his overseas employment.  The Ninth Circuit agreed with the BRB that the Claimant’s plan to cease his employment was irrelevant.  Section 2 of the Longshore and Harbor Workers’ Compensation Act provides that a disability is the “incapacity because of injury to earn the wages to which the employee was receiving at the time of injury in the same or any other employment.”  The “at the time of injury” language controlled and made the Claimant’s subsequent plans irrelevant.

Blackwater Security Consulting, LLC v.  Dir., OWCP, No. 11-71587 slip op. (9th Cir. Dec. 19, 2012).