U.S. Code » Title 33 » Chapter CHAPTER 18— LONGSHORE AND HARBOR WORKERS’ COMPENSATION

33 U.S.C. § 910

Determination of pay

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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.(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.)Editorial NotesAmendments

1984—Subsec. (d). Pub. L. 98–426, § 10(a)(1), designated existing provisions as par. (1) and added par. (2).

Subsec. (f). Pub. L. 98–426, § 10(b), substituted “subject to this chapter” for “sustained after October 27, 1972,” and inserted “the lesser of—” after “by” in introductory language, designated balance of existing provisions as par. (1), substituted “; or” for a period at end of par. (1), and added par. (2).

Subsec. (i). Pub. L. 98–426, § 10(a)(2), added subsec. (i).

1972—Subsecs. (f) to (h). Pub. L. 92–576 added subsecs. (f) to (h).

1948—Subsec. (a). Act June 24, 1948, included a factor (a 260 multiplier) so as to make this subsec. useful in 5-day week employments.

Subsec. (b). Act June 24, 1948, included the new factor (a 260 multiplier) to make this subsec. consistent with subsec. (a).

Subsec. (c). Act June 24, 1948, permitted the inclusion of all earnings of the injured workman in determining the employee’s annual earning capacity.

Statutory Notes and Related SubsidiariesEffective Date of 1984 Amendment

Amendment by section 10(a) of Pub. L. 98–426 effective Sept. 28, 1984, and applicable both with respect to claims filed after such date and to claims pending on such date, and amendment by section 10(b) of Pub. L. 98–426 effective Sept. 28, 1984, see section 28(a), (e)(1) of Pub. L. 98–426, set out as a note under section 901 of this title.

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–576 effective 30 days after Oct. 27, 1972, see section 22 of Pub. L. 92–576, set out as a note under section 902 of this title.

Effective Date of 1948 Amendment

Amendment by act June 24, 1948, applicable to death or injuries occurring after June 24, 1948, see section 6 of act June 24, 1948, set out as a note under section 906 of this title.

Notes of Decisions
Cited in 156 cases, 1931–2019 · leading case: Gen. Constr. Co. Liberty Nw. Ins. Corp. v. Robert Castro Dir., Off. of Workers Comp. Programs, 401 F.3d 963 (9th Cir. 2005).
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Gen. Constr. Co. Liberty Nw. Ins. Corp. v. Robert Castro Dir., Off. of Workers Comp. Programs, 401 F.3d 963 (9th Cir. 2005). · cites it 10× “Abbott, 40 F.3d 122, 127-28 (5th Cir.1994).”
Sam D. Matulic v. Dir., Off. of Workers Comp. Programs Jones Stevedoring Co., 154 F.3d 1052 (9th Cir. 1998). · cites it 10× “§ 910 (a)-(c). 2 *1056 That figure is then divided by fifty-two to arrive at the average weekly wage.”
Bath Iron Works Corp. v. Dir., Off. of Workers' Comp. Programs, 506 U.S. 153 (1993). · cites it 8× “For claims *158 in which “the average weekly wages are determined under section 910(d)(2),” that is, for retirees with claims involving “an occupational disease which does not immediately result in death or disability,” 33 U. S. C. § 910 (i), a new § 8(c)(23) provides that…”
Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C. Cir. 1980). · cites it 7× “” Section 10(d) of the Act, 33 U.S.C. § 910 (d) (1976) (emphasis added).”
SGS Control Servs. v. Dir., 86 F.3d 438 (5th Cir. 1996). · cites it 7× “The determination of average weekly wage is governed by 33 U.S.C. § 910 , which provides in pertinent part: § 910.”
Universal Mar. Corp. v. Frank Moore Dir., Off. of Workers' Comp. Prog. United States Dep't of Labor, 126 F.3d 256 (4th Cir. 1997). · cites it 6× “; (2) the ALJ erred in finding permanent total disability without any medical evidence of maximum improvement with respect to Moore’s back problem; (3) the ALJ erred as a matter of law in refusing to credit a vocational survey on the ground that Moore’s employer failed to…”
Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161 (9th Cir. 2010). · cites it 4× “First, he contends that the ALJ committed both legal and factual errors in calculating his average weekly wage under 33 U.S.C. § 910 (c). Second, he argues that the BRB committed legal error by reducing his compensation by the amount he could have earned in non-longshore work…”
Nat'l Steel & Shipbuilding Co. & Fireman's Fund Am. Ins. Co. v. Emma J. (Evans) Bonner & U. S. Dept. Of Labor, 600 F.2d 1288 (9th Cir. 1979). · cites it 5× “First, the employee’s average annual earnings are computed pursuant to one of three subsections of 33 U.S.C. § 910 : subsection (a), (b), or (c).”
Metro. Stevedore Co. v. Rambo, 521 U.S. 121 (1997). · cites it 2× “See also § 10, 33 U. S. C. § 910 (method for determining preinjury wages).”
Morrison-Knudsen Constr. Co. v. Dir., Off. of Workers' Comp. Programs, 461 U.S. 624 (1983). · cites it 2× “Hilyer claimed that under 33 U. S. C. § 910 (b), his wages should be determined by reference to the wages of a fellow employee "of the same class" who had worked "substantially the whole" of the preceding year.”
New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028 (5th Cir. 1997). · cites it 4× “33 U.S.C. § 910 (d)(1). The parties and the ALJ agree that the computation of Chilton’s average annual earnings is governed by Section 10(c) of the Act, 33 U.”
Universal Mar. Serv. Corp. v. Bernard N. Wright Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 155 F.3d 311 (4th Cir. 1998). · cites it 5× “” See 33 U.S.C. § 910 (e) (emphasis added). “[T]he prime objective of[this subsection is] to insure that compensation awards [are] based on accurate assessments of the claimants’ earning capacity.”
Show all 156 citing cases →
33 U.S.C. § 910(a): 1 case
Universal Mar. v. Moore, No. 96-2612 (4th Cir. Sept. 16, 1997).
33 U.S.C. § 910(b): 1 case
Andrew F. Mahony Co. v. Marshall, 46 F.2d 539 (W.D. Wash. 1931).
33 U.S.C. § 910(c): 3 cases
Hardy Johnson v. Theodore Britton, Deputy Comm'r, Bureau of Employees' Comp., United States Dep't of Labor, 290 F.2d 355 (D.C. Cir. 1961).
O'Hearne v. Maryland Cas. Co., 177 F.2d 979 (4th Cir. 1949).
Universal Mar. v. Wright, No. 97-2129 (4th Cir. Aug. 19, 1998).
33 U.S.C. § 910(d)(1): 1 case
Universal Mar. v. Moore, No. 96-2612 (4th Cir. Sept. 16, 1997).
33 U.S.C. § 910(e): 1 case
Andrew F. Mahony Co. v. Marshall, 46 F.2d 539 (W.D. Wash. 1931).
33 U.S.C. § 910(h): 1 case
Dir., Off. of Workers' Comp. Programs v. Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977).
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