Longshore and Harbor Workers' Compensation Act - Permanent Total Disability Benefits - Maximum Compensation Rate for Claimant Receiving "Newly Awarded Compensation"

Brett Mason from Breazeale, Sachse & Wilson, LLP, provides an update on a permanent total disability benefit issue under the Longshore and Harbor Worker's Compensation Act that is now before the U.S. Supreme Court.
W. Brett Mason is a Martindale AV-rated partner in the Baton Rouge office of Breazeale, Sachse & Wilson, L.L.P. He represents clients in maritime casualties, toxic tort defense, and class action litigation. Brett has particular experience in limitation of liability actions and class actions involving chemical exposure and catastrophic accidents.
On November 16, 2011, the U.S. 11th Circuit Court of Appeals (which encompasses Florida, Georgia and Alabama) held that the maximum compensation rate for a claimant receiving "newly awarded compensation" for permanent total disability benefits pursuant to the Longshore and Harbor Workers’ Compensation Act ("LHWCA") is governed by reference to the national average weekly rate in effect on date when he received his award.[1] The question presented on appeal was whether the date on which disability occurred, or the date on which the injured employee was awarded benefits for such disability - determines the maximum weekly rate of compensation for a permanently totally disabled employee who is "newly awarded compensation."

Bernard Boroski worked for DynCorp International in Tusla, Bosnia, as a sheet metal mechanic from January 2000 to April 2002. Boroski was exposed to various chemicals during his employment and stopped work on April 20, 2002, after his vision had become severely impaired. Boroski is now legally blind in both eyes and has been permanently and totally disabled since April 20, 2002. DynCorp contested that it was the cause of Boroski’s blindness.

Boroski timely applied for workers compensation benefits under the LHWCA, which applied to him by operation of the Defense Base Act.[2] Boroski’s claim was adjudicated before an administrative law judge ("ALJ") who held that Boroski was entitled to compensation for permanent and total disability beginning April 20, 2002 (the "Compensation Order"). He ordered DynCorp to pay permanent total disability compensation to Boroski from April 20, 2002, and continuing at the maximum compensation rate. The ALJ did not specify the maximum compensation rate that was applicable or calculate the amount owed to Boroski.

DynCorp and its insurer took the position that the maximum compensation rate applicable to Boroski was determined by reference to the date when the benefits became payable, and not by reference to when the benefits were awarded to him. The District Director agreed and Boroski appealed to the Benefits Review Board of the United States Department of Labor. The Benefits Review Board affirmed the decision of the ALJ. Boroski appealed to the United States District Court for the Middle District of Florida. The district court affirmed the ruling of the Benefits Review Board. Boroski appealed to the United States Court of Appeal for the Eleventh Circuit.

The Eleventh Circuit rejected the district court's reliance on a Ninth Circuit case, Roberts v. Director, Office of Workers' Compensation Programs[3] and followed the holding of a Fifth Circuit case, Wilkerson v. Ingalls Shipbuilding, Inc.[4] The Eleventh Circuit was persuaded that an employee is "newly awarded compensation" at the time of a formal compensation order and held that the maximum compensation rate for a claimant receiving "newly awarded compensation" for permanent total disability benefits pursuant to the LHWCA is governed by reference to the national average weekly rate in effect on date when he received his award.

Thus, a claimant in the Eleventh Circuit (Florida, Georgia and Alabama) or Fifth Circuit (Texas, Louisiana, and Mississippi) who receives "newly awarded compensation" for permanent total disability benefits pursuant to the LHWCA will have his/her maximum compensation rate governed by reference to the national average weekly rate in effect on date he/she receives an award. A claimant seeking similar benefits in the Ninth Circuit (California, Arizona, Alaska, Nevada, Oregon, Idaho, Montana, Washington) will have his/her maximum compensation rate governed by reference to the national average weekly rate in effect on the date of the onset of the disability.

This split between the circuits has yet to be addressed by the Supreme Court. However, at the end of Q3 the Supreme Court granted a writ in the Roberts case to resolve this issue.[5] Oral argument is scheduled on January 11, 2012. Thus, the dichotomy between the circuits should be resolved in 2012. Stay tuned for additional updates as things unfold.



1Boroski v. Dyncorp International Insurance Company of the State of Penn., No. 11-10033 (11th Cir. 11/16/11), 2011 WL 5555686.
2. 42 U.S.C. §§ 1651-55 (2006).
3. 625 F.3d 1204 (9th Cir. 2010), petition for cert. granted sub nom. Roberts v. Sea-Land Services, Inc., ___ U.S. ___, 132 S.Ct. 71, 180 L.Ed.2d 939, 80 U.S.L.W. 3179 (Sept. 27, 2011) (No. 10-1399).
4. 125 F.3d 904 (5th Cir. 1997).
5. 132 S.Ct. 71, 180 L.Ed.2d 939, 80 U.S.L.W. 3179 (Sept. 27, 2011) (No. 10-1399).

1 comment: