ROBERTS v. Dir.

• Decision Date: 10 November 2010
• Docket Number: No. 08-70268.,08-70268.
• Citation: 625 F.3d 1204
• Parties: Dana ROBERTS, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Sea-Land Services, Inc., Respondents, Kemper Insurance Companies, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

625 F.3d 1204

Dana ROBERTS, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Sea-Land Services, Inc., Respondents,Kemper Insurance Companies, Real Party in Interest.

No. 08-70268.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 7, 2009.

Filed Nov. 10, 2010.

Joshua T. Gillelan II, Longshore Claimants' National Law Center, Washington, DC, argued the cause for the petitioner, and filed the briefs. Michael F. Pozzi, Renton, WA, was also on the briefs.

Frank B. Hugg, Oakland, CA, argued the cause for respondents Sea-Land Services, Inc. and Kemper Insurance Companies, and filed the brief.

Matthew W. Boyle, U.S. Department of Labor, Washington, DC, argued the cause for the Federal Respondent, Director, Officer of Workers' Compensation Programs, and filed the brief. Gregory F. Jacob, Rae Ellen James, and Mark A. Reinhalter, U.S. Department of Labor, Washington, DC, were also on the brief.

On Petition for Review of an Order of the Office of Workers' Compensation Programs. OWCP No. BRB No. 07-0382.

Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and RONALD M. WHYTE, Senior District Judge. ^*

OPINION

PER CURIAM:

We consider the maximum weekly rate that applies to an employee's compensation for disability under the Longshore and Harbor Workers' Compensation Act.

I

A

The Longshore and Harbor Workers' Compensation Act (“LHWCA” or “Act”), 33 U.S.C. § 901 et seq., requires employers to compensate maritime employees for “disability or death [that] results from an injury occurring upon the navigable waters of the United States,” id. § 903(a). Calculating the statutorily required rate of compensation for disability generally involves the following steps. First, we determine the “average weekly wage of the injured employee at the time of the injury.” Id. § 910. Then, we adjust the employee's average weekly wage to account for both the character (total or partial) and the quality (permanent or temporary) of the injury. Id. § 908(a)-(e). As relevant here, the Act entitles an employee to compensation in the amount of two-thirds' his average weekly wage in the case of permanent total or temporary total disability, id. § 908(a)-(b), and two-thirds' the difference between his average weekly wage and his residual wage-earning capacity in the typical case of permanent partial or temporary partial disability, id. § 908(c)(21), (e).

Finally, we ensure that the resulting rate accords with the requirements set forth in section 6 of the Act. Among other things, section 6(b)(1) provides that the rate of compensation “shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary [of Labor].” Id. § 906(b)(1). Each fiscal year, the Secretary calculates a new national average weekly wage, which governs “the period beginning with October 1 of that year and ending with September 30 of the next year.” Id. § 906(b)(3). Under section 6(c), “[d]eterminations [of the national average weekly wage] with respect to a period shall apply to employees ... currently receiving compensation for permanent total disability ... during such period, as well as those newly awarded compensation during such period.” Id. § 906(c).

B

On February 24, 2002, while working as a gatehouse dispatcher in Dutch Harbor, Alaska, for Sea-Land Services, Inc., Dana Roberts slipped on a patch of ice. Having injured his neck and shoulder, Roberts ceased work on March 11, 2002, and sought compensation under the LHWCA.

After initially making some payments to Roberts, Sea-Land and its insurer stopped paying him compensation in May 2005. The matter subsequently came before an administrative law judge (“ALJ”). In a decision issued on October 12, 2006, the ALJ found that Roberts's disability was temporary total from March 11, 2002, to July 11, 2005; permanent total from July 12, 2005, to October 9, 2005; and permanent partial beginning on October 10, 2005. The ALJ calculated Roberts's average weekly wage at the time of injury to be $2,853.08 and his residual wage-earning capacity while partially disabled to be $720.00 per week. Based on these figures alone, Roberts was entitled to weekly compensation in the amount of $1,902.05 during his periods of permanent total and temporary total disability, and $1,422.05 during his period of permanent partial disability. The ALJ concluded, however, that the applicable maximum rate with respect to each of Roberts's periods of disability was $966.08 per week-200% the national average weekly wage for fiscal year 2002, the year Roberts first became disabled. Because the compensation to which Roberts would have otherwise been entitled exceeded the applicable maximum rate, the ALJ ordered Sea-Land and its insurer to pay Roberts $966.08 per week for all periods of disability.

Roberts filed a motion for reconsideration of the ALJ's decision. The ALJ denied the motion but determined that he had applied the wrong maximum rate to Roberts's permanent total disability during the period between October 1, 2005, and October 9, 2005. According to the ALJ, the applicable maximum rate for that period was not $966.08, but rather $1,073.64-200% of the national average weekly wage with respect to fiscal year 2006. The Benefits Review Board affirmed the ALJ's decision and his order denying reconsideration. Roberts timely petitions this court for review.

II

[1] This case presents two questions regarding the interpretation of section 6(c) of the LHWCA. The first concerns when an employee is “newly awarded compensation.” According to Roberts, the ALJ erred by holding that he was “newly awarded compensation” in fiscal year 2002, when he first became disabled. Roberts argues that he was not “newly awarded compensation” until fiscal year 2007, when the ALJ issued his decision making a formal award of compensation, and that therefore the ALJ should have used the national average weekly wage with respect to fiscal year 2007 in calculating the maximum rate that governs his compensation for temporary total and permanent partial disability. We disagree.

The Act does not expressly define the terms “award” or “awarded.” See 33 U.S.C. § 902. In Astrue v. Ratliff, --- U.S. ----, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), however, the Supreme Court held that “[t]he transitive verb ‘award’ has a settled meaning in the litigation context: It means ‘[t]o give or assign by sentence or judicial determination.’ ” Id. at 2526 (emphasis removed) (quoting Black's Law Dictionary 125 (5th ed. 1979)). Consistent with this meaning of the verb, some sections of the LHWCA use the noun “award” to mean a formal compensation order issued in the course of administrative adjudication. See, e.g., 33 U.S.C. § 913(a); id. § 914(a); id. § 928(a).

In other sections, however, the LHWCA uses the terms “award” and “awarded” to refer to an employee's entitlement to compensation under the Act, even in the absence of a formal order. Section 8, for example, defines “awards” for specific types of injuries. See, e.g., id. § 908(c)(22) (defining the “award” for loss of certain body parts). Section 8(c)(20) also provides that “[p]roper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head, or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment.” Id. § 908(c)(20) (emphasis added). By use of the term “awarded,” Congress could not have meant “assigned by formal order in the course of adjudication,” given that employers are obligated to pay such compensation regardless of whether an employee files an administrative claim. Section 908 thus uses the terms “award” and “awarded” to refer to an employee's entitlement to compensation under the Act generally, separate and apart from any formal order of compensation

Section 10 similarly uses the term “awarded” to refer to an employee's entitlement to compensation, irrespective of a formal compensation order. Section 10(h)(1) increases the average weekly wage of an employee or survivor who “was awarded compensation ... at less than the maximum rate” for permanent total disability or death occurring prior to October 27, 1972. Id. § 910(h)(1) (emphasis added). Given that section 10(h)(1) expressly governs “the compensation to which an employee or his survivor is entitled due to total permanent disability or death which commenced or occurred prior to October 27, 1972,” id. (emphasis added), Congress apparently used “awarded compensation” and “entitled to compensation” to mean the same thing.

Section 6 uses “awarded” in the same context as sections 8 and 10. Like sections 8 and 10, section 6 governs determinations of compensation under the Act. Like sections 8 and 10, moreover, compensation governed by § 906 is due without a formal compensation order. See id. §§ 904(a), 914(a). Thus, “awarded” as used in section 6 does not mean “assigned by formal order in the course of adjudication.” Consistent with the meaning of “awarded” in sections 8 and 10, “newly awarded compensation” in section 6 means “newly entitled to compensation.”

Our interpretation of the phrase finds further support in section 33 of the Act, which states: “For the purpose of this subsection, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commissioner, an administrative law judge, or Board.” Id. § 933(b). Section 33 implicitly contemplates that the meaning of the term “award” in other sections is not limited to a formal compensation order. Unless “award” is used in other sections to mean something broader than a formal compensation order, the specific definition in section 33 would be unnecessary.

Moreover, we must read section 6 “with a view to [its] place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (internal quotation...