FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANA ROBERTS, 

Petitioner,

v. No. 08-70268

D OWCP No. IRECTOR, OFFICE OF WORKERS’

COMPENSATION  BRB No. PROGRAMS; SEALAND 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
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. Rein18494 ROBERTS v. OWCP
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 navigable 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 partial) 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 temporary total disability, id. § 908(a)-(b), and two-thirds’ the difference 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

ROBERTS v. OWCP 18495
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 dispatcher 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 temporary total disability, and $1,422.05 during his period of permanent partial disability. The ALJ concluded, however, that

the applicable maximum rate with respect to each of Rob18496 ROBERTS v. OWCP
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 reconsideration. Roberts timely petitions this court for review. 

II

This case presents two questions regarding the interpretation 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 average weekly wage with respect to fiscal year 2007 in calculating 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 litigaROBERTS v. OWCP 18497
tion context: It means ‘[t]o give or assign by sentence or judicial determination.’ ” Id. at 2526 (emphasis removed)

(quoting Black’s Law Dictionary 125 (5th ed. 1979)). Consistent with this meaning of the verb, some sections of the

LHWCA use the noun “award” to mean a formal compensation 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 formal order. Section 8, for example, defines “awards” for specific 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 “assigned 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 “awarded” 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

18498 ROBERTS v. OWCP
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 sections 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.” Consistent 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 section 33 of the Act, which states: “For the purpose of this subsection, 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 something 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 & Williamson 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 disabled accords with the structure of the LHWCA, which identifies 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 starting 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

ROBERTS v. OWCP 18499
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 permanent partial disability.

1We 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 counters 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). 

18500 ROBERTS v. OWCP
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 September 30, 2005. Roberts contends that he could not have been

“currently receiving compensation for permanent total disability” until fiscal year 2005 at the earliest, when he began suffering such disability.

[7] If Roberts’s employer had actually paid him compensation 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 . . . during 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 administrative 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 payment during their period of disability. In view of this background 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

ROBERTS v. OWCP 18501
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 consistent: Under both clauses, the inquiry into the applicable maximum rate focuses on an employee’s entitlement to

compensation.

[9] In this case, Roberts was entitled to receive compensation 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 “currently receiving compensation for permanent total disability

. . . during such period.” It follows that the applicable maximum 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 receiving” clause of section 6(c) unambiguously refers to the period

during which an employee was entitled to receive compensation 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 Roberts’s motion for reconsideration that the national average weekly wage

with respect to fiscal year 2006 governs his maximum rate of compensation 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). 

18502 ROBERTS v. OWCP
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 compensation for permanent partial disability beginning on October 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.

ROBERTS v. OWCP 18503