Defense Base Act Lawyer discusses Average Weekly Wage in a Defense Base Act Case

If you are a contractor who has been injured on the job while working overseas in Iraq, Afghanistan or on any military base across the world, your case is covered by the Defense Base Act which is an extension of the Longshore and Harbor Workers’ Compensation Act.  At the Law Offices of Gillis, Mermell & Pacheco, P.A., we have a combination of over 43 years of experience in representing injured workers covered by the Defense Base Act and the Longshore and Harbor Workers’ Compensation Act.   Let us put our years of experience and our reputation to work for you today!  Contact us today at, or go on our website at and fill out our form on the contact us page, or call us at 305 595 3350.
Here are some very interesting facts and case summaries regarding the question of Average Weekly Wage in a DBA or Longshore case coming directly from the Longshore Deskbook from the Benefits Review Board.  The Longshore Desk Book is a searchable website which is a public record.  According to the Longshore Deskbook:
Section 10 provides that the average weekly wage of the injured worker at the time of injury is the basis for an award of compensation.  Section 10 sets forth three alternative methods for determining claimant’s average annual earnings, which are then divided by 52 pursuant to Section 10(d) to arrive at an average weekly wage.  The computation methods are directed towards establishing claimant’s earning power at the time of injury.  See, e.g., Healy Tibbitts Builders, Inc. v. Director, OWCP, 444 F.3d 1095, 40 BRBS 13(CRT) (9th Cir. 2006); Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004); Matulic v. Director, OWCP, 154 F.3d 1052, 32 BRBS 148(CRT) (9th Cir. 1998); SGS Control Services v. Director, OWCP, 86 F.3d 438, 30 BRBS 57(CRT) (5th Cir. 1996); Orkney v. General Dynamics Corp., 8 BRBS 543 (1978); Barber v. Tri-State Terminals, Inc., 3 BRBS 244 (1976), decision after remand, 8 BRBS 411 (1978), aff’d sub nom. Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752, 10 BRBS 700 (7th Cir. 1979).
Sections 10(a) and 10(b) are the statutory provisions applicable in determining an employee’s average annual earnings where the injured employee’s work is regular and continuous.  The computation of average annual earnings is made pursuant to subsection (c) if subsections (a) or (b) cannot be reasonably and fairly applied.
Claimant’s compensation rate is based on a percentage of an employee’s average weekly wage, subject to Section 6.  See Duncanson-Harrelson Co. v. Director, OWCP [Freer], 686 F.2d 1336 (9th Cir. 1982), vacated in part on other grounds, 462 U.S. 1101 (1983), decision on remand, 713 F.2d 462 (9th Cir. 1983); National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288 (9th Cir. 1979); Turney v. Bethlehem Steel Corp., 17 BRBS 232 (1985); Strand v. Hansen Seaway Service, Ltd., 9 BRBS 847 (1979), aff’d in part and rev’d in part, 614 F.2d 572, 11 BRBS 732 (7th Cir. 1980); Duzant v. General Dynamics Corp., 8 BRBS 670 (1978).
An employee’s average weekly wage is calculated as of the time of injury.  Hastings v. Earth Satellite Corp., 8 BRBS 519 (1978), aff’d in pertinent part, 628 F.2d 85, 14 BRBS 345 (D.C. Cir. 1980), cert. denied, 449 U.S. 905 (1980); 33 U.S.C. §910.  Since an aggravation of a prior condition is considered a new injury, average weekly wage is calculated at the time of an aggravation.  Id.  Where claimant’s condition progresses, resulting in additional disability, but there is no new injury or aggravation, average weekly wage is properly based on earnings at the time of the injury.  See Director, OWCP v. General Dynamics Corp. [Morales], 769 F.2d 66, 17 BRBS 130(CRT) (2d Cir. 1985) (where claimant’s disability increased in 1979, the court held that the award was properly based on claimant’s wages at the time of his 1970 injury rather than in 1979 when the increased disability became manifest, as there was no evidence that claimant’s osteoarthritis was an occupational disease or that claimant’s work activities between 1970 and 1979 aggravated his pre-existing knee condition).  The Ninth Circuit, however, has held that in the case of a latent traumatic injury, which did not affect claimant for years while she continued to work, average weekly wage should be calculated at the time the disability became manifest.  Johnson v. Director, OWCP, 911 F.2d 247, 24 BRBS 3(CRT) (9th Cir. 1990), cert. denied, 499 U.S. 959 (1991).  This holding was subsequently rejected by the Fifth Circuit and the Board.  LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157, 31 BRBS 195(CRT) (5th Cir. 1997); McKnight v. Carolina Shipping Co., 32 BRBS 165, aff’d on recon. en banc, 32 BRBS 251 (1998).  The Ninth Circuit subsequently distinguished Johnson in a case involving the natural progression of an initial injury, holding that the earnings at the time of injury control in those circumstances and stating that Johnson applies where the effects of an injury are “latent and unknown” for a lengthy period where claimant continued to work.  Port of Portland v. Director, OWCP [Ronne II], 192 F.3d 933, 33 BRBS 143(CRT) (9th Cir. 1999), cert. denied, 529 U.S. 1086 (2000).  Accord Deweert v. Stevedoring Services of America, 272 F.3d 1241, 36 BRBS 1(CRT) (9th Cir. 2002).
If you have a question about your Average Weekly Wage, Contact Us today at, or go on our website at and fill out our form on the contact us page, or call us at 305 595 3350.

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