On Petitions for Review of Orders of the Benefits Review Board, United States Department of Labor
Before Cummings, Lay*fn* and Wood, Circuit Judges.
Tri-State Terminals, Inc. has filed separate petitions for review from two decisions of the Benefits Review Board, United States Department of Labor, which granted claimants Barber and Jesse compensation for injuries suffered while working as longshoremen. Tri-State concedes that claimants suffered work-related injuries compensable under the Longshoremen's and Harbor Workers' Compensation Act, but challenges the Board's method of computing compensation. The sole issue raised by this appeal is whether Section 10(c) of the Act, 33 U.S.C. § 910(c), permits the computation of disability benefits to be based in part on the post-injury earnings of claimants' co-employees.
George Barber and Fred Jesse worked for Tri-State Terminals, Inc. as longshoremen at Burns Harbor, Indiana. The port facility at Burns Harbor commenced operation in 1970, and since 1972 all general stevedoring work has been done by Tri-State. Each year the volume of work at the port has increased substantially. Due to the ice conditions in the St. Lawrence Seaway and the Great Lakes, Burns Harbor is only open for approximately 30 weeks of the year from mid-April until December. On May 10, 1974, claimant Barber suffered a compensable employment-related injury. As a result, he was temporarily totally disabled. Pursuant to the Act, a claim for compensation was filed. A formal hearing before an administrative law judge (ALJ) was held, and, because of the intermittent and discontinuous nature of the longshore work at Burns Harbor, § 10(c) of the Act was employed to compute the compensation rate.
The Longshoremen's Act provides that the amount of weekly disability compensation payable for a temporary total disability shall be based on the average weekly wage of the injured employee. The average weekly wage is to be determined by dividing the claimant's average annual earning capacity by 52. See 33 U.S.C. §§ 908(b), 910(c) and (d). During the 52 weeks preceding his injury, claimant's wages from his longshore employment totalled $2,758.74. The ALJ used this amount to compute claimant's average weekly wage, and, in turn, to fix the amount awarded in the compensation order. Both the employer and claimant appealed this decision to the Benefits Review Board.
The Board, although agreeing that § 10(c) applied, reversed the ALJ's order and held, Inter alia, that the continuing rapid development of Burns Harbor and the corresponding increase in work opportunities should be considered in computing claimant's average annual earnings. In concluding that the ALJ erred in focusing entirely on claimant's preinjury earnings, the Board stated: "(T) he administrative law judge should consider not only claimant's previous actual earnings during the 1973 season, but The amount which he reasonably would have earned in 1974 were it not for the injury. . . ." George Barber, BRB Nos. 75-177 & 75-177A at 8 (Feb. 25, 1976) (emphasis added).
On remand the ALJ found claimant's co-employees earned approximately three times more during the 1974 shipping season than they earned in the previous season. The new compensation order was accordingly determined in part by multiplying claimant's previous earnings by three. On appeal the Board modified the resulting compensation order but affirmed the ALJ's determination that claimant's average annual earning capacity could be computed by examining the post-injury earnings of claimant's co-employees. To arrive at claimant's average weekly wage the Board multiplied claimant's prior earnings by three and divided the product by 52 ($2,758.74 X 3 = $8,277.00 / 52 = $159.17). George Barber, BRB Nos. 77-801, 77-801A & 77-801B (May 31, 1978).
Claimant Jesse sustained an employment-related injury on November 8, 1973, which resulted in temporary total disability and permanent partial disability. In computing the appropriate amount of compensation payments due the claimant, the ALJ relied on the Board's George Barber decision. The ALJ ascertained claimant's annual earning capacity in part by determining the average earnings of four similarly situated employees during 1974. On appeal the Board reaffirmed the decision in the Barber case, and stated:
Because we believe the average 1974 earnings of the four similarly situated employees is more representative of the claimant's wage earning capacity, the claimant's annual earnings would be equal to $9,981.39. Properly computed, claimant's average weekly wage is equal to $9,981.39 divided by 52, or, $191.95.
Fred Jesse, BRB Nos. 76-448, 76-448A & 76-448B at 5 (Dec. 20, 1977). The Board likewise concluded that $191.95 represented claimant's average weekly wage for purposes of computing compensation for the permanent partial disability. See 33 U.S.C. §§ 908(c)(21) and (h).
On these consolidated appeals Tri-State seeks reversal of the Board's method of implementing § 10(c), and contends that the statutory language, federal case law and the policy underlying the Act preclude consideration of circumstances existing subsequent to the date of injury.
Three methods for determining average annual earnings are contained in § 10. See 33 U.S.C. §§ 910(a), (b) and (c). Sections 10(a) and (b) generally apply if the claimant is a full-time employee.*fn1 However, where the work is discontinuous and intermittent, as it was at Burns Harbor for both employees, all parties agree that § 10(c) provides the appropriate method for calculating average annual earnings. See White v. O'Hearne, 338 F.2d 464, 466 (4th Cir. 1964), Cert. denied, 380 U.S. 973, 85 S. Ct. 1331, 14 L. Ed. 2d 269 (1965); Johnson v. Britton, 110 U.S.App.D.C. 164, 165-68, 290 F.2d 355, 356-59, Cert. denied, 368 U.S. 859, 82 S. Ct. 99, 7 L. Ed. 2d 56 (1961); Marshall v. Andrew F. Mahony Co., 56 F.2d 74, 78 (9th Cir. 1932); S.Rep.No.1315, 80th Cong., 2d Sess., Reprinted in (1948) U.S.Code Cong.Serv. pp. 1979, 1982. Section 10(c) provides:
If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of ...