33 U.S.C. § 908 — Compensation for disability

submitted 99 years ago by ch. 509 to r/title-33-NAVIGATION-AND-NAVIGABLE-WATERS · 2,654 words · no verdicts yet

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This section sets compensation rules for employees with total or partial disability. It also covers death, increased disability, vocational rehabilitation, wage-earning capacity, settlements, and reporting earnings.

Compensation for disability must be paid as follows. (a) Permanent total disability. If the total disability is permanent, the employee receives 66⅔% of average weekly wages while the disability continues. Losing both hands, arms, feet, legs, or eyes, or losing any two of those, is permanent total disability unless conclusive proof shows otherwise. Other cases are decided from the facts. (b) Temporary total disability. If the disability is total but temporary, the employee receives 66⅔% of average weekly wages while it continues. (c) Permanent partial disability. For permanent partial disability, compensation is 66⅔% of average weekly wages, in addition to temporary total or temporary partial disability compensation under (b) or (e). The scheduled amounts are: (1) lost arm, 312 weeks; (2) lost leg, 288 weeks; (3) lost hand, 244 weeks; (4) lost foot, 205 weeks; (5) lost eye, 160 weeks; (6) lost thumb, 75 weeks; (7) lost first finger, 46 weeks; (8) lost great toe, 38 weeks; (9) lost second finger, 30 weeks; (10) lost third finger, 25 weeks; (11) lost toe other than the great toe, 16 weeks; and (12) lost fourth finger, 15 weeks. (13) Loss of hearing: (A) one ear receives 52 weeks; (B) both ears receive 200 weeks; (C) an audiogram is presumptive evidence of hearing loss on its date only if a licensed or certified audiologist or an otolaryngology-certified physician gave it, gave the employee the audiogram and report then, and no contrary audiogram made then is produced; (D) the deadline for an injury notice under section 912 or a compensation claim under section 913 does not begin until the employee receives an audiogram and report showing hearing loss; and (E) hearing loss is determined under the American Medical Association guides for evaluating permanent impairment, as those guides are changed over time. (14) Losing more than one phalange of a digit is compensated like losing the whole digit. Losing the first phalange is compensated at one-half of the whole digit amount. (15) An arm or leg amputated at or above the elbow or knee is compensated like loss of the arm or leg. If amputated between the elbow and wrist or knee and ankle, it is compensated like loss of a hand or foot. (16) Losing binocular vision, or at least 80% of an eye’s vision, is compensated like losing the eye. (17) Loss of two or more digits, or one or more phalanges of two or more digits, on one hand or foot may be measured in proportion to loss of use of that hand or foot, but cannot exceed the hand or foot amount. (18) Permanent total loss of use of a body member is compensated like loss of the member. (19) Permanent partial loss or loss of use of a member may be compensated proportionally. (20) Serious disfigurement of the face, head, neck, or another normally exposed area likely to hinder getting or keeping work receives proper and fair compensation up to $7,500. (21) In other partial-disability cases, compensation is 66⅔% of the difference between the employee’s average weekly wages and later wage-earning capacity in the same or other employment, paid while partial disability continues. (22) If more than one member or part listed in (1)–(19) is lost or loses use, without permanent total disability, compensation is awarded for each loss and the awards run one after another. If only two or more digits of one hand or foot are injured, (17) applies. (23) Despite (1)–(22), for a permanent partial disability claim whose average weekly wages are determined under section 910(d)(2), compensation is 66⅔% of those wages multiplied by the percentage of permanent impairment under the guides mentioned in section 902(10), paid while the impairment continues. (d)(1) If an employee receiving compensation under (c)(1)–(20) dies from a cause other than the injury, the unpaid award goes to survivors: (A) only a widow or widower receives it; (B) only a child or children receive it in equal shares; (C) a widow or widower and child or children receive it in equal shares; or (D) if there is neither spouse nor child, the survivors listed in section 909(d), other than a wife, husband, or child, receive it according to that section’s percentages. If their total is less than the unpaid award, the excess is divided among them in proportion to their otherwise payable amounts. (2) Despite other limits in section 909, the unpaid award is paid in full in the proper distribution. (3) A disability award may be made after the injured employee dies. Except for compensation under (c)(21), if there are no survivors described here, compensation under this subsection goes to the special fund under section 944(a). (e) Temporary partial disability. If temporary partial disability lowers earning capacity, compensation is two-thirds of the difference between pre-injury average weekly wages and post-injury wage-earning capacity in the same or another job. It cannot be paid for more than five years. (f)(1) Injury increasing disability. If an employee with an existing permanent partial disability is injured, the employer pays for the disability attributable to that injury, based on wages at the injury. If an injury covered by (c)(1)–(20) causes total permanent disability not solely due to that injury, the employer pays for the scheduled period for the later injury or 104 weeks, whichever is greater; for (c)(13), the lesser period applies. In other total permanent disability or death cases not solely due to the injury, the employer pays, in addition to (b) and (e), only 104 weeks of compensation or death benefits. If a later injury covered by (c)(1)–(20) causes permanent partial disability that is not solely due to it and is materially and substantially greater than the later injury alone would cause, the employer pays the scheduled period or 104 weeks, whichever is greater; for (c)(13), the lesser applies. In all other such permanent partial disability cases, the employer pays, in addition to (b) and (e), only 104 weeks. (2)(A) After those weeks end, the employee or eligible survivor receives the remaining compensation from the special fund under section 944, but the fund does not assume responsibility, and payments do not stop, for an employer that fails to comply with section 932(a). (B) The employer or carrier remains a party, keeps access to claim records, and keeps all other chapter rights. (3) A request made after September 28, 1984, to assign liability to the special fund, with its grounds, must be given to the deputy commissioner before the claim is considered. Otherwise it is an absolute defense to fund liability, unless the employer could not reasonably have anticipated that liability before the compensation order. (g) Vocational rehabilitation maintenance. An employee who is or may be totally or partly unable to work for pay because of injury and is being made fit for paid work under the Secretary’s direction under section 939(c) receives needed maintenance compensation up to $25 per week. The special fund under section 944 pays the expense. (h) In partial-disability cases under (c)(21) or (e), actual earnings determine wage-earning capacity when they fairly and reasonably show it. If there are no actual earnings, or they do not fairly and reasonably show capacity, the deputy commissioner may set a reasonable capacity in the interest of justice, considering the injury, physical impairment, usual work, and other circumstances affecting earning ability, including how the disability may naturally continue into the future. (i)(1) When parties agree to settle a compensation claim, including survivor benefits, the deputy commissioner or administrative law judge must approve it within 30 days unless it is inadequate or obtained by pressure. It may include future medical benefits if the parties agree. Employer or carrier liability for medical, disability, or death benefits is not discharged without approval. If the parties have counsel, the settlement is approved unless specifically rejected within 30 days after submission. (2) If the deputy commissioner rejects it, a written statement of reasons must issue within 30 days. Any party may request an administrative-law-judge hearing, who then approves or rejects the settlement. (3) An approved settlement discharges the employer’s or carrier’s liability and may be made at any stage, including after a final compensation order. (4) The special fund does not reimburse amounts paid or payable under the settlement or voluntarily paid before it. (j)(1) The employer may tell a disabled employee to report employment or self-employment earnings at least twice a year, on forms the Secretary sets by regulation. (2) An employee who, when asked, fails to report earnings, or knowingly and willfully leaves out or understates earnings, and whom the deputy commissioner finds violated either rule, loses compensation for each period when the report was required. (3) If that compensation was already paid, it is recovered by deductions from later compensation in the amount and on the schedule the deputy commissioner sets.

the actual law source: uscode.house.gov ↗public domain

Compensation for disability shall be paid to the employee as follows:

(a)

Permanent total disability: In case of total disability adjudged to be permanent 66⅔ per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.

(b)

Temporary total disability: In case of disability total in character but temporary in quality 66⅔ per centum of the average weekly wages shall be paid to the employee during the continuance thereof.

(c)

Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 66⅔ per centum of the average weekly wages, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with subsection (b) or subsection (e) of this section, respectively, and shall be paid to the employee, as follows:

(1)

Arm lost, three hundred and twelve weeks’ compensation.

(2)

Leg lost, two hundred and eighty-eight weeks’ compensation.

(3)

Hand lost, two hundred and forty-four weeks’ compensation.

(4)

Foot lost, two hundred and five weeks’ compensation.

(5)

Eye lost, one hundred and sixty weeks’ compensation.

(6)

Thumb lost, seventy-five weeks’ compensation.

(7)

First finger lost, forty-six weeks’ compensation.

(8)

Great toe lost, thirty-eight weeks’ compensation.

(9)

Second finger lost, thirty weeks’ compensation.

(10)

Third finger lost, twenty-five weeks’ compensation.

(11)

Toe other than great toe lost, sixteen weeks’ compensation.

(12)

Fourth finger lost, fifteen weeks’ compensation.

(13)

Loss of hearing:

(A)

Compensation for loss of hearing in one ear, fifty-two weeks.

(B)

Compensation for loss of hearing in both ears, two-hundred weeks.

(C)

An audiogram shall be presumptive evidence of the amount of hearing loss sustained as of the date thereof, only if (i) such audiogram was administered by a licensed or certified audiologist or a physician who is certified in otolaryngology, (ii) such audiogram, with the report thereon, was provided to the employee at the time it was administered, and (iii) no contrary audiogram made at that time is produced.

(D)

The time for filing a notice of injury, under section 912 of this title, or a claim for compensation, under section 913 of this title, shall not begin to run in connection with any claim for loss of hearing under this section, until the employee has received an audiogram, with the accompanying report thereon, which indicates that the employee has suffered a loss of hearing.

(E)

Determinations of loss of hearing shall be made in accordance with the guides for the evaluation of permanent impairment as promulgated and modified from time to time by the American Medical Association.

(14)

Phalanges: Compensation for loss of more than one phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for loss of the entire digit.

(15)

Amputated arm or leg: Compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; but, if amputated between the elbow and the wrist or the knee and the ankle, shall be the same as for loss of a hand or foot.

(16)

Binocular vision or per centum of vision: Compensation for loss of binocular vision or for 80 per centum or more of the vision of an eye shall be the same as for loss of the eye.

(17)

Two or more digits: Compensation for loss of two or more digits, or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

(18)

Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.

(19)

Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

(20)

Disfigurement: Proper 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.

(21)

Other cases: In all other cases in the class of disability, the compensation shall be 66⅔ per centum of the difference between the average weekly wages of the employee and the employee’s wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.

(22)

In any case in which there shall be a loss of, or loss of use of, more than one member or parts of more than one member set forth in paragraphs (1) to (19) of this subsection, not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or part thereof, which awards shall run consecutively, except that where the injury affects only two or more digits of the same hand or foot, paragraph (17) of this subsection shall apply.

(23)

Notwithstanding paragraphs (1) through (22), with respect to a claim for permanent partial disability for which the average weekly wages are determined under section 910(d)(2) of this title, the compensation shall be 66⅔ per centum of such average weekly wages multiplied by the percentage of permanent impairment, as determined under the guides referred to in section 902(10) of this title, payable during the continuance of such impairment.

(d)

(1)

If an employee who is receiving compensation for permanent partial disability pursuant to subsection (c)(1)–(20) dies from causes other than the injury, the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors, as follows:

(A)

if the employee is survived only by a widow or widower, such unpaid amount of the award shall be payable to such widow or widower,

(B)

if the employee is survived only by a child or children, such unpaid amount of the award shall be paid to such child or children in equal shares,

(C)

if the employee is survived by a widow or widower and a child or children, such unpaid amount of the award shall be payable to such survivors in equal shares,

(D)

if there be no widow or widower and no surviving child or children, such unpaid amount of the award shall be paid to the survivors specified in section 909(d) of this title (other than a wife, husband, or child); and the amount to be paid each such survivor shall be determined by multiplying such unpaid amount of the award by the appropriate percentage specified in section 909(d) of this title, but if the aggregate amount to which all such survivors are entitled, as so determined, is less than such unpaid amount of the award, the excess amount shall be divided among such survivors pro rata according to the amount otherwise payable to each under this subparagraph.

(2)

Notwithstanding any other limitation in section 909 of this title, the total amount of any award for permanent partial disability pursuant to subsection (c)(1)–(20) unpaid at time of death shall be payable in full in the appropriate distribution.

(3)

An award for disability may be made after the death of the injured employee. Except where compensation is payable under subsection (c)(21) if there be no survivors as prescribed in this section, then the compensation payable under this subsection shall be paid to the special fund established under section 944(a) of this title.

(e)

Temporary partial disability: In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the injury and his wage-earning capacity after the injury in the same or another employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding five years.

(f)

Injury increasing disability:

(1)

In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. If following an injury falling within the provisions of subsection (c)(1)–(20), the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury, the employer shall provide compensation for the applicable prescribed period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater, except that, in the case of an injury falling within the provisions of subsection (c)(13), the employer shall provide compensation for the lesser of such periods. In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide in addition to compensation under subsections (b) and (e) of this section, compensation payments or death benefits for one hundred and four weeks only. If following an injury falling within the provisions of subsection (c)(1)–(20), the employee has a permanent partial disability and the disability is found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide compensation for the applicable period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater, except that, in the case of an injury falling within the provisions of subsection (c)(13), the employer shall provide compensation for the lesser of such periods.

In all other cases in which the employee has a permanent partial disability, found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide in addition to compensation under subsections (b) and (e) of this section, compensation for one hundred and four weeks only.

(2)

(A)

After cessation of the payments for the period of weeks provided for herein, the employee or his survivor entitled to benefits shall be paid the remainder of the compensation that would be due out of the special fund established in section 944 of this title, except that the special fund shall not assume responsibility with respect to such benefits (and such payments shall not be subject to cessation) in the case of any employer who fails to comply with section 932(a) of this title.

(B)

After cessation of payments for the period of weeks provided for in this subsection, the employer or carrier responsible for payment of compensation shall remain a party to the claim, retain access to all records relating to the claim, and in all other respects retain all rights granted under this chapter prior to cessation of such payments.

(3)

Any request, filed after September 28, 1984, for apportionment of liability to the special fund established under section 944 of this title for the payment of compensation benefits, and a statement of the grounds therefore, shall be presented to the deputy commissioner prior to the consideration of the claim by the deputy commissioner. Failure to present such request prior to such consideration shall be an absolute defense to the special fund’s liability for the payment of any benefits in connection with such claim, unless the employer could not have reasonably anticipated the liability of the special fund prior to the issuance of a compensation order.

(g)

Maintenance for employees undergoing vocational rehabilitation: An employee who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the Secretary as provided by section 939(c) of this title, is being rendered fit to engage in a remunerative occupation, shall receive additional compensation necessary for his maintenance, but such additional compensation shall not exceed $25 a week. The expense shall be paid out of the special fund established in section 944 of this title.

(h)

The wage-earning capacity of an injured employee in cases of partial disability under subsection (c)(21) of this section or under subsection (e) of this section shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.

(i)

(1)

Whenever the parties to any claim for compensation under this chapter, including survivors benefits, agree to a settlement, the deputy commissioner or administrative law judge shall approve the settlement within thirty days unless it is found to be inadequate or procured by duress. Such settlement may include future medical benefits if the parties so agree. No liability of any employer, carrier, or both for medical, disability, or death benefits shall be discharged unless the application for settlement is approved by the deputy commissioner or administrative law judge. If the parties to the settlement are represented by counsel, then agreements shall be deemed approved unless specifically disapproved within thirty days after submission for approval.

(2)

If the deputy commissioner disapproves an application for settlement under paragraph (1), the deputy commissioner shall issue a written statement within thirty days containing the reasons for disapproval. Any party to the settlement may request a hearing before an administrative law judge in the manner prescribed by this chapter. Following such hearing, the administrative law judge shall enter an order approving or rejecting the settlement.

(3)

A settlement approved under this section shall discharge the liability of the employer or carrier, or both. Settlements may be agreed upon at any stage of the proceeding including after entry of a final compensation order.

(4)

The special fund shall not be liable for reimbursement of any sums paid or payable to an employee or any beneficiary under such settlement, or otherwise voluntarily paid prior to such settlement by the employer or carrier, or both.

(j)

(1)

The employer may inform a disabled employee of his obligation to report to the employer not less than semiannually any earnings from employment or self-employment, on such forms as the Secretary shall specify in regulations.

(2)

An employee who—

(A)

fails to report the employee’s earnings under paragraph (1) when requested, or

(B)

knowingly and willfully omits or understates any part of such earnings,

and who is determined by the deputy commissioner to have violated clause (A) or (B) of this paragraph, forfeits his right to compensation with respect to any period during which the employee was required to file such report.

(3)

Compensation forfeited under this subsection, if already paid, shall be recovered by a deduction from the compensation payable to the employee in any amount and on such schedule as determined by the deputy commissioner.

Source credit: (Mar. 4, 1927, ch. 509, § 8, 44 Stat. 1427; May 26, 1934, ch. 354, §§ 2, 3, 48 Stat. 806; June 25, 1938, ch. 685, §§ 4, 5, 52 Stat. 1165; June 24, 1948, ch. 623, § 2, 62 Stat. 602; July 26, 1956, ch. 735, §§ 2, 3, 70 Stat. 655; Pub. L. 92–576, §§ 5(c), 7, 9, 20(a), Oct. 27, 1972, 86 Stat. 1253, 1255, 1257, 1264; Pub. L. 98–426, §§ 8, 27(a)(2), Sept. 28, 1984, 98 Stat. 1644, 1654.)

history & why it existsrecord from the source credit

1927Enacted · Act of Mar. 4, 1927, ch. 509 · 44 Stat. 1427
1934Amended · Act of May 26, 1934, ch. 354 · 48 Stat. 806
1938Amended · Act of June 25, 1938, ch. 685 · 52 Stat. 1165
1948Amended · Act of June 24, 1948, ch. 623 · 62 Stat. 602
1956Amended · Act of July 26, 1956, ch. 735 · 70 Stat. 655
1972Amended · Pub. L. 92-576 · 86 Stat. 1253, 1255, 1257, 1264
1984Amended · Pub. L. 98-426 · 98 Stat. 1644, 1654

A history note hasn’t been published yet. The record shows enactment by ch. 509 on 1927-03-04.

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