33 U.S.C. § 910 — Determination of pay

submitted 99 years ago by ch. 509 to r/title-33-NAVIGATION-AND-NAVIGABLE-WATERS · 1,098 words · no verdicts yet

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This section explains how to calculate an injured employee’s average weekly wage for compensation. It covers work history, alternative earning capacity, occupational disease after retirement, annual adjustments, older claims, and the time of injury.

Unless this chapter provides otherwise, compensation is based on the injured employee’s average weekly wage at injury. (a) If the employee worked in the injury employment for substantially all of the prior year, average annual earnings are 300 times the average daily wage for a six-day worker or 260 times it for a five-day worker. (b) If not, use the comparable average daily wage of a same-class employee who worked substantially all of that year in the same or similar employment and same or nearby place, multiplied by 300 for a six-day worker or 260 for a five-day worker. (c) If neither method can fairly and reasonably be used, use an amount that reasonably represents annual earning capacity, considering the employee’s prior earnings, similar employees and jobs locally, other employment, and the reasonable value of services in self-employment. (d)(1) Average weekly wages equal average annual earnings divided by 52. (2) For occupational-disease death or disability, if time of injury under (i) is within one year after retirement, use pre-retirement 52-week average earnings divided by 52; if more than one year after retirement, use the national average weekly wage set under section 906(b). (e) A minor’s expected normal wage increase during disability may be considered. (f) Each October 1, permanent-total-disability or death compensation increases by the lesser of the percentage increase in the applicable national weekly wage over the prior October 1 national average weekly wage or 5%. (g) After adjustment, weekly compensation is rounded to the nearest dollar; no adjustment under $1 is made and compensation or death benefits may not be reduced. (h)(1) Within 90 days after October 27, 1972, pre-date total permanent disability or death benefits must be adjusted under regulations by using the applicable national average weekly wage, calculating what would be payable if the injury or death occurred the next day, and subtracting the amount payable on October 27, 1972. Total compensation cannot be less than the October 27 amount. If the award was below the maximum rate, increase the injury-time average weekly wage by the national-average-wage percentage increase from the injury year to the first month after October 27, 1972; for pre-1947 injuries, the Secretary sets the increase using relevant economic data. (2) Half of additional benefits from adjustments under paragraphs (1) and (3) is paid from the section 944 special fund and half from appropriations. (3) For (f) and (g), a pre-October 27, 1972 injury causing permanent total disability or death is treated as occurring the next day. (i) For an occupational disease that does not immediately cause death or disability, time of injury is when the employee or claimant becomes aware, or reasonably should have become aware or is told by medical advice, of the relationship among employment, disease, and death or disability.

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

Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

(a)

If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed.

(b)

If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

(c)

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 the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.

(d)

(1)

The average weekly wages of an employee shall be one fifty-second part of his average annual earnings.

(2)

Notwithstanding paragraph (1), with respect to any claim based on a death or disability due to an occupational disease for which the time of injury (as determined under subsection (i)) occurs—

(A)

within the first year after the employee has retired, the average weekly wages shall be one fifty-second part of his average annual earnings during the 52-week period preceding retirement; or

(B)

more than one year after the employee has retired, the average weekly wage shall be deemed to be the national average weekly wage (as determined by the Secretary pursuant to section 906(b) of this title) applicable at the time of the injury.

(e)

If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.

(f)

Effective October 1 of each year, the compensation or death benefits payable for permanent total disability or death arising out of injuries subject to this chapter shall be increased by the lesser of—

(1)

a percentage equal to the percentage (if any) by which the applicable national weekly wage for the period beginning on such October 1, as determined under section 906(b) of this title, exceeds the applicable national average weekly wage, as so determined, for the period beginning with the preceding October 1; or

(2)

5 per centum.

(g)

The weekly compensation after adjustment under subsection (f) shall be fixed at the nearest dollar. No adjustment of less than $1 shall be made, but in no event shall compensation or death benefits be reduced.

(h)

(1)

Not later than ninety days after October 27, 1972, the compensation to which an employee or his survivor is entitled due to total permanent disability or death which commenced or occurred prior to October 27, 1972, shall be adjusted. The amount of such adjustment shall be determined in accordance with regulations of the Secretary by designating as the employee’s average weekly wage the applicable national average weekly wage determined under section 906(b) of this title and (A) computing the compensation to which such employee or survivor would be entitled if the disabling injury or death had occurred on the day following October 27, 1972, and (B) subtracting therefrom the compensation to which such employee or survivor was entitled on October 27, 1972; except that no such employee or survivor shall receive total compensation amounting to less than that to which he was entitled on October 27, 1972. Notwithstanding the foregoing sentence, where such an employee or his survivor was awarded compensation as the result of death or permanent total disability at less than the maximum rate that was provided in this chapter at the time of the injury which resulted in the death or disability, then his average weekly wage shall be determined by increasing his average weekly wage at the time of such injury by the percentage which the applicable national average weekly wage has increased between the year in which the injury occurred and the first day of the first month following October 27, 1972. Where such injury occurred prior to 1947, the Secretary shall determine, on the basis of such economic data as he deems relevant, the amount by which the employee’s average weekly wage shall be increased for the pre-1947 period.

(2)

Fifty per centum of any additional compensation or death benefit paid as a result of the adjustment required by paragraphs (1) and (3) of this subsection shall be paid out of the special fund established under section 944 of this title, and 50 per centum shall be paid from appropriations.

(3)

For the purposes of subsections (f) and (g) an injury which resulted in permanent total disability or death which occurred prior to October 27, 1972, shall be considered to have occurred on the day following such date.

(i)

For purposes of this section with respect to a claim for compensation for death or disability due to an occupational disease which does not immediately result in death or disability, the time of injury shall be deemed to be the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.

Source credit: (Mar. 4, 1927, ch. 509, § 10, 44 Stat. 1431; June 24, 1948, ch. 623, § 4, 62 Stat. 603; Pub. L. 92–576, § 11, Oct. 27, 1972, 86 Stat. 1258; Pub. L. 98–426, § 10, Sept. 28, 1984, 98 Stat. 1647.)

history & why it existsrecord from the source credit

1927Enacted · Act of Mar. 4, 1927, ch. 509 · 44 Stat. 1431
1948Amended · Act of June 24, 1948, ch. 623 · 62 Stat. 603
1972Amended · Pub. L. 92-576 · 86 Stat. 1258
1984Amended · Pub. L. 98-426 · 98 Stat. 1647

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

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