All indemnity benefits for injured workers' covered under the Defense Base Act for temporary total disability, temporary partial disability, permanent partial disability under the schedule, and permanent partial disability based upon loss of wage earning capacity are computed based upon the employee's average weekly wage at the time of the injury. Employees covered under the Defense Base Act typically work long hours under hardship conditions, often in a dangerous war zone, and earn substantially higher wages than they earn for similar job titles in the states. Therefore, it is extremely important in Defense Base Act cases that average weekly wage be accurately and fairly computed so that injured workers' high wages are taken into account in computing their benefits.
Average weekly wage is computed under Section 10 of the Longshore Act, 33 U.S.C. Section 910. Typically, in Defense Base Act cases, average weekly wage is computed under Section 10(c). The purpose of Section 10(c) is to arrive at an average weekly wage that reasonably represents the injured workers' wage earning capacity at the time of the injury. For years, insurance carriers tried to artificially reduce injured workers' average weekly wage by attempting to include lower wages earned before the worker went overseas in the calculation. The Benefits Review Board has rejected this argument, holding that where a claimant is injured while working overseas in a dangerous environment in return for higher wages under a long-term contract, his or her average weekly wage should be calculated based upon the earnings in the overseas job as they reflect the full amount of earnings lost due to the injury. K.S. v. Service Employees Int'l, Inc., 43 BRBS 18 (2009); Proffitt v. Service Employees Int'l, Inc., 40 BRBS 41 (2006).
In spite of this well established case law, certain carriers still attempt to compute average weekly wage incorrectly, adding lower earnings from stateside employment. A good attorney can verify that average weekly wage has been properly calculated so that the injured worker is paid all of the benefits which are due.
