FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANA ROBERTS,
Petitioner,
v. No. 08-70268
DIRECTOR, OFFICE OF WORKERS’ OWCP No.
COMPENSATION PROGRAMS; SEA- BRB No.
LAND SERVICES, INC., 07-0382
Respondents, OPINION
KEMPER INSURANCE COMPANIES,
Real Party in Interest.
On Petition for Review of an Order of the
Office of Workers’ Compensation Programs
Argued and Submitted
October 7, 2009—Portland, Oregon
Filed November 10, 2010
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,
Senior District Judge.*
Per Curiam Opinion
*The Honorable Senior United States District Judge for the Northern
District of California, sitting by designation.
18491
18494 ROBERTS v. OWCP
COUNSEL
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, Washington,
was also on the briefs.
Frank B. Hugg, Oakland, California, 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. Rein-
ROBERTS v. OWCP 18495
halter, U.S. Department of Labor, Washington, DC, were also
on the brief.
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 navi-
gable 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 par-
tial) 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 tempo-
rary total disability, id. § 908(a)-(b), and two-thirds’ the dif-
ference 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
18496 ROBERTS v. OWCP
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 dis-
patcher 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 tempo-
rary total disability, and $1,422.05 during his period of per-
manent partial disability. The ALJ concluded, however, that
the applicable maximum rate with respect to each of Rob-
ROBERTS v. OWCP 18497
erts’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 reconsider-
ation. Roberts timely petitions this court for review.
II
This case presents two questions regarding the interpreta-
tion 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 aver-
age weekly wage with respect to fiscal year 2007 in calculat-
ing the maximum rate that governs his compensation for
temporary total and permanent partial disability. We disagree.
[1] The Act does not expressly define the terms “award” or
“awarded.” See 33 U.S.C. § 902. In Astrue v. Ratliff, 130 S.
Ct. 2521 (2010), however, the Supreme Court held that “[t]he
transitive verb “‘award” ’ has a settled meaning in the litiga-
18498 ROBERTS v. OWCP
tion context: It means ‘[t]o give or assign by sentence or judi-
cial determination.’ ” Id. at 2526 (emphasis removed)
(quoting Black’s Law Dictionary 125 (5th ed. 1979)). Consis-
tent with this meaning of the verb, some sections of the
LHWCA use the noun “award” to mean a formal compensa-
tion order issued in the course of administrative adjudication.
See, e.g., 33 U.S.C. § 913(a); id. § 914(a); id. § 928(a).
[2] 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 for-
mal order. Section 8, for example, defines “awards” for spe-
cific 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 “as-
signed 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 “award-
ed” to refer to an employee’s entitlement to compensation
under the Act generally, separate and apart from any formal
order of compensation
[3] 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
ROBERTS v. OWCP 18499
October 27, 1972,” id. (emphasis added), Congress apparently
used “awarded compensation” and “entitled to compensation”
to mean the same thing.
[4] Section 6 uses “awarded” in the same context as sec-
tions 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.” Con-
sistent 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 sec-
tion 33 of the Act, which states: “For the purpose of this sub-
section, 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 some-
thing broader than a formal compensation order, the specific
definition in section 33 would be unnecessary.
[5] Moreover, we must read section 6 “with a view to [its]
place in the overall statutory scheme.” FDA v. Brown & Wil-
liamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal
quotation marks omitted). Our holding that an employee is
“newly awarded” compensation when he first becomes dis-
abled accords with the structure of the LHWCA, which identi-
fies the time of injury as the appropriate marker for other
calculations relating to compensation. For instance, the Act
provides that the employee’s average weekly wage—the start-
ing point for determining compensation—is calculated at the
time of injury. See 33 U.S.C. § 910. The employee’s residual
wage-earning capacity—used to offset the average weekly
18500 ROBERTS v. OWCP
wage in cases of partial disability—is also calculated at the
time of injury. See id. § 908(c)(21), (e); Johnston v. Dir.,
Office of Workers’ Comp. Programs, 280 F.3d 1272, 1277
(9th Cir. 2002). To apply the national average weekly wage
with respect to a year other than the year the employee first
becomes disabled would be to depart from the Act’s pattern
of basing calculations on the time of injury.
We are not persuaded by Wilkerson v. Ingalls Shipbuilding,
Inc., 125 F.3d 904 (5th Cir. 1997), which holds that an
employee is “newly awarded compensation” at the time of a
formal compensation order. Id. at 906. The Fifth Circuit in
Wilkerson did not engage in any analysis of the text of the
LHWCA. Nor did it explain how its interpretation accords
with the overall statutory scheme. Rather, that court resolved
the issue summarily without expressing any reasoning. We
are not bound by Wilkerson and find nothing in the opinion
that persuades us to abandon our holding here.1
[6] We therefore hold that an employee is “newly awarded
compensation” within the meaning of section 6(c) when he
first becomes entitled to compensation. Because Roberts
became newly entitled to compensation in fiscal year 2002,
the ALJ properly applied the 2002 fiscal year maximum to
Roberts’s compensation for temporary total disability and per-
manent partial disability.
1
We note that Roberts’s proposed construction would have the potential
for inequitable results: Two claimants injured on the same day could be
entitled to different amounts of compensation depending on when their
awards are entered. See Rucker v. Davis, 237 F.3d 1113, 1119 (9th Cir.
2001) (en banc) (“We will not assume that Congress intended a statute to
create odd or absurd results.”), overruled on other grounds by Dep’t of
Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 130 (2002). Roberts count-
ers that far from being illogical, such a possibility encourages employers
to expedite administrative proceedings rather than delay the process. His
argument is undercut by the fact that section 14 of the LHWCA already
provides penalties for delay by an employer. See 33 U.S.C. § 914(e).
ROBERTS v. OWCP 18501
III
We next consider when an employee is “currently receiving
compensation for permanent total disability” for purposes of
section 6(c). According to Roberts, the ALJ erred by applying
the national average weekly wage with respect to fiscal year
2002 in calculating the maximum rate of compensation for his
permanent total disability between July 12, 2005, and Septem-
ber 30, 2005. Roberts contends that he could not have been
“currently receiving compensation for permanent total disabil-
ity” until fiscal year 2005 at the earliest, when he began suf-
fering such disability.
[7] If Roberts’s employer had actually paid him compensa-
tion for permanent total disability between July 12, 2005, and
September 30, 2005, then the applicable maximum rate would
be obvious: Because Roberts would have been “currently
receiving compensation for permanent total disability . . . dur-
ing such period,” the applicable maximum rate would be
200% of the determination of the national average weekly
wage with respect to that period (i.e., fiscal year 2005). But
in fact, Roberts’s employer stopped paying him compensation
in May 2005, so he did not actually receive any compensation
during his period of permanent total disability. The question
is whether this means a different maximum rate should apply.
We do not believe it does.
[8] Employers are obligated to pay compensation due
under the Act—including compensation for permanent total
disability—regardless of whether an employee files an admin-
istrative claim. See 33 U.S.C. §§ 904(a), 914(a). By requiring
that such compensation “be paid periodically, promptly, and
directly to the person entitled thereto,” id. § 914(a), the Act
expects employees entitled to compensation to receive pay-
ment during their period of disability. In view of this back-
ground expectation, we construe section 6(c)’s reference to
the period “during” which an employee is “currently receiving
compensation for permanent total disability” to mean the
18502 ROBERTS v. OWCP
period during which an employee is entitled to receive such
compensation, regardless of whether his employer actually
pays it. By doing so, we render interpretation of section 6(c)’s
“newly awarded” and “currently receiving” clauses consis-
tent: Under both clauses, the inquiry into the applicable maxi-
mum rate focuses on an employee’s entitlement to
compensation.
[9] In this case, Roberts was entitled to receive compensa-
tion for permanent total disability during the period between
July 12, 2005, and September 30, 2005. Thus, although his
employer did not actually pay him, we hold that he was “cur-
rently receiving compensation for permanent total disability
. . . during such period.” It follows that the applicable maxi-
mum rate should be based on the “[d]etermination[ ] [of the
national average weekly wage] with respect to [that] period”
—namely, the national average weekly wage with respect to
fiscal year 2005.2
[10] We believe the statute is clear: The “currently receiv-
ing” clause of section 6(c) unambiguously refers to the period
during which an employee was entitled to receive compensa-
tion for permanent total disability, regardless of whether his
employer actually paid it. Because Roberts was entitled to
receive such compensation during the period between July 12,
2005, and September 30, 2005, we hold that the ALJ erred by
applying the national average weekly wage with respect to
fiscal year 2002, rather than fiscal year 2005, in calculating
the applicable maximum rate under section 6(c).
2
It likewise follows that the ALJ properly concluded in denying Rob-
erts’s motion for reconsideration that the national average weekly wage
with respect to fiscal year 2006 governs his maximum rate of compensa-
tion for permanent total disability from October 1, 2005, to October 9,
2005. See 33 U.S.C. § 906(b)(3) (directing that the national average
weekly wage with respect to each new fiscal year take effect on October
1).
ROBERTS v. OWCP 18503
IV
For the foregoing reasons, we AFFIRM the Benefits
Review Board’s order with respect to Roberts’s compensation
for temporary total disability between March 11, 2002, and
July 11, 2005; his compensation for permanent total disability
between October 1, 2005, and October 9, 2005; and his com-
pensation for permanent partial disability beginning on Octo-
ber 10, 2005. We REVERSE the Board’s order with respect
to Roberts’s compensation for permanent total disability
between July 12, 2005, and September 30, 2005, and
REMAND the case for further proceedings consistent with
this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.
Each party shall bear its own costs.