In workers’ comp case, a question of time

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In a decision that could impact how injury benefits under a number of statutes that base calculations on the national average weekly wage, the justices of the U.S. Supreme Court recently considered just when injured claimants are entitled to compensation under the Longshore and Harbor Worker’ Compensation Act – the date a disabled worker was injured or the date when the worker receives an award of disability payments.

The case, Roberts v. Sea-Land Services, involves Dana Roberts, a longshoreman gatehouse dispatcher who was injured when he slipped and fell on a patch of ice while on his way to move a vehicle as part of his job in 2002. The job left him with a permanent shoulder injury and ended his career.

Sea-Land and its underwriter initially made payments to Roberts, but later stopped and told Roberts they were contesting his claim because his job was clerical in nature. In 2006 an administrative law judge found that Roberts was entitled to benefits under the Act.

Both parties appealed, with Roberts seeking a larger award, and the Department of Labor’s Benefit Review Board affirmed the award in 2007.

Roberts appealed, arguing that he was entitled to a larger award because, although the accident occurred in 2002, the award of benefits was make by the ruling in fiscal 2007, when the national average weekly wage – the basis of calculating the award – was higher.

A per curiam decision by a panel of district court and circuit judges said that the relevant year for calculating benefits is the year the worker sustained the injury.

The U.S. Supreme Court agreed to review the case.

Award or no award

Joshua T. Gillelan II of the Longshore Claimants’ National Law Center argued that “the term ‘award’ or ‘awarded’ in the Longshore Act has a consistent meaning throughout,” and that that meaning is at the time of “the order making the award.”

Justice Antonin Scalia wondered if it made practical sense to require an order to trigger the entitlement to a worker’s compensation award.

“Why wouldn’t it be an award [if] it was the employer that voluntarily paid the amount due, which is what he’s supposed to do anyway, right?” Scalia asked.

Gillelan explained that the statute provides differently for payments made “without an award.”

“The employer that wants to lock in this year’s maximum rate and not have his liability progress above that simply needs to have an award entered,” Gillelan said.

Justice Sonia Sotomayor asked whether the voluntary payment of awards would “require the employer every year to recalculate the benefits to the maximum that’s established that year?”

“Yes, it would,” Gillelan said.

‘Extraordinary practical difficulties’

Joseph Palmore, assistant to the solicitor general, argued that the claimant’s reading of the statute “renders that provision impossible to apply in the many cases expressly contemplated by the Act in which there is no such order.”

Scalia said that wasn’t the point.

“We’re not talking about how the scheme works,” Scalia said. “Grant you that it makes a lot more sense your way, but will you grant that it’s not up to us to rewrite the statute?”

Palmore agreed, but stressed that lawmakers did not intend to have a law with “extraordinary practical difficulties and an application [that] would be really inconsistent.”

Peter Keisler, a partner in the Washington office of Sidley Austin, argued on the insurer’s behalf that the law was not designed to delay payments in order to give boosts to compensation later.

“The Act is designed to enable compensation to be calculated precisely and as early as possible so the money can get into the employee’s hands very quickly,” Keisler said.

Chief Justice John G. Roberts wondered how many injured workers would delay their payments in order to try to get a slight windfall.

“Normally if you are an employee and you are disabled and the employer says, ‘well here’s what we are going to give you,’ … you’re not going to say, ‘I’m going to wait; these wages are going to go up nationally, and I’m going to wait a year. Maybe I’ll wait four years.’”

A ruling is expected by June.