Roberts Brief
No. 10-1399
____________________________________________________
____________________________________________________
In the Supreme Court of the United States
_______________________________________
DANA ROBERTS, PETITIONER
v.
SEA-LAND SERVICES, INC., ET AL.
_______________________________________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________________
BRIEF FOR THE FEDERAL RESPONDENT
_______________________________________
M. PATRICIA SMITH RAE ELLEN FRANK JAMES SEAN G. BAJKOWSKI MATTHEW W. BOYLE |
DONALD B. VERRILLI, JR. EDWIN S. KNEEDLER JOSEPH R. PALMORE |
____________________________________________________
____________________________________________________
Under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., disabled maritime workers are paid compensation based on their average weekly wage at the time of their disabling injury. See 33 U.S.C. 908, 910. This compensation is subject to a maximum of twice the "applicable" fiscal year's national average weekly wage. 33 U.S.C. 906(b)(1). The Secretary of Labor determines the national average wage for each fiscal year, 33 U.S.C. 906(b)(3), and that determination applies "to employees or survivors * * * newly awarded compensation during such period." 33 U.S.C. 906(c). The question presented is whether the "applicable" Secretarial determination is the national average wage for the year during which an employee suffers a disabling injury or the year during which a formal compensation order is issued.
3. The legislative history supports the Director's interpretation of Section 906(c)
Appendix – Statutory Provisions
Cases:
American Stevedores, Inc. v. Porello, 330 U.S. 446 (1947)
Astrue v. Ratliff, 130 S. Ct. 2521 (2010)
Barnhart v. Walton, 535 U.S. 212 (2002)
Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153 (1993)
Board of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 131 S. Ct. 2188 (2011)
Boroski v. DynCorp Int'l, No. 11-10033, 2011 WL 5555686 (11th Cir. Nov. 16, 2011)
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)
Davis v. Michigan Dep't of Treasury, 489 U.S. 803 (1989)
Director, OWCP v. Bath Iron Works Corp., 885 F.2d 983 (1st Cir. 1989), cert. denied, 494 U.S. 1091 (1990)
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 (1995)
Director, OWCP v. Rasmussen, 440 U.S. 29 (1979)
Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992)
FDA v. Brown & Williamson Tobacco Corp., 529 U.S 120 (2000)
Gilliland v. E.J. Bartells Co., 270 F.3d 1259 (9th Cir. 2001)
Ingalls Shipbuilding, Inc. v. Director, OWCP, 519 U.S. 248 (1997)
Intercounty Constr. Corp. v. Walter, 422 U.S. 1 (1975)
Johnson v. Director, OWCP Programs, 911 F.2d 247 (9th Cir. 1990), cert. denied, 499 U.S. 959 (1991)
Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991)
Matulic v. Director, OWCP Programs, 154 F.3d 1052 (9th Cir. 1998)
Metropolitan Stevedore Co. v. Rambo: 515 U.S. 291 (1995) 521 U.S. 121 (1997)
Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624 (1983)
Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 594 F.2d 986 (4th Cir. 1979)
Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939)
Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529 (1983)
Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268 (1980)
Price v. Stevedoring Servs. of Am., Inc., 653 F.3d 928 (9th Cir. 2011), granting reh'g of 627 F.3d 1145 (2010)
Quick v. Martin, 397 F.2d 644 (D.C. Cir. 1968)
Reno v. Koray, 515 U.S. 50 (1995)
Reposky v. International Transp. Servs., 40 Ben. Rev. Bd. Serv. (MB) 65 (Oct. 20, 2006)
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
Sea-Land Serv., Inc. v. Barry, 41 F.3d 903 (3d Cir. 1994)
Skidmore v. Swift & Co., 323 U.S. 134 (1944)
Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir. 1971), cert. denied, 406 U.S. 958 (1972)
United States v. Mead Corp., 533 U.S. 218 (2001)
United States v. Mezzanatto, 513 U.S. 196 (1995)
Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969)
Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir. 1997)
Williams v. Taylor, 529 U.S. 362 (2000)
Statutes and regulations:
Act of June 24, 1948, ch. 623, 62 Stat. 602:
§ 1, 62 Stat. 602
§ 6, 62 Stat. 604
Act of July 26, 1956, ch. 735, 70 Stat. 654:
§ 1, 70 Stat. 655
§ 9, 70 Stat. 656
Act of July 14, 1961, Pub. L. No. 87-87, 75 Stat. 203:
§ 1, 75 Stat. 203
§ 4, 75 Stat. 204
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et seq.
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.:
33 U.S.C. 902(2)
33 U.S.C. 902(10)
33 U.S.C. 902(19)
33 U.S.C. 903(a)
33 U.S.C. 906
33 U.S.C. 906(b)
33 U.S.C. 906(b) (Supp. I 1928)
33 U.S.C. 906(b)(1)
33 U.S.C. 906(b)(1) (Supp. II 1972)
33 U.S.C. 906(b)(1) (1982)
33 U.S.C. 906(b)(2)
33 U.S.C. 906(b)(3)
33 U.S.C. 906(c)
33 U.S.C. 908
33 U.S.C. 908(a)
33 U.S.C. 908(a) (Supp. I 1928)
33 U.S.C. 908(a)-(b)
33 U.S.C. 908(a)-(e)
33 U.S.C. 908(b)
33 U.S.C. 908(c)
33 U.S.C. 908(c)(1)
33 U.S.C. 908(c)(1)-(19)
33 U.S.C. 908(c)(20)
33 U.S.C. 908(c)(21)
33 U.S.C. 908(c)(22)
33 U.S.C. 908(c)(23)
33 U.S.C. 908(d)(1)
33 U.S.C. 908(e)
33 U.S.C. 909
33 U.S.C. 910
33 U.S.C. 910 (Supp. I 1928)
33 U.S.C. 910(d)(2)
33 U.S.C. 910(d)(2)(A)
33 U.S.C. 910(d)(2)(B)
33 U.S.C. 910(f)
33 U.S.C. 910(h)(1)
33 U.S.C. 910(i)
33 U.S.C. 912
33 U.S.C. 913
33 U.S.C. 913(a)
33 U.S.C. 914
33 U.S.C. 914(a)
33 U.S.C. 914(b)
33 U.S.C. 914(e)
33 U.S.C. 919
33 U.S.C. 919(a)
33 U.S.C. 919(c)
33 U.S.C. 919(e)
33 U.S.C. 921(a)
33 U.S.C. 933(a)
33 U.S.C. 933(b)
33 U.S.C. 933(g)
33 U.S.C. 933(g)(1)-(2)
33 U.S.C. 939(a)
Longshore and Harbor Workers' Compensation Act Amendments of 1984, Pub. L. No. 98-426, § 21(a), 98 Stat. 1652
Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 92-576, § 11, 86 Stat. 1258
20 C.F.R.:
Section 31.8 (1972)
Section 301 et seq.
Section 701.201
Section 702.211(a)
Section 702.221(a)
Section 702.241-702.243
Section 702.301
Sections 702.301-703.315
Section 701.301(a)(7)
Section 702.315(a)
Section 702.317
Section 702.333(b)
Miscellaneous:
American Heritage Dictionary of the English Language (4th ed. 2006)
Black's Law Dictionary:
rev. 4th ed. 1968
5th ed. 1979
74 Fed. Reg. 58,834 (Nov. 13, 2009)
H.R. Conf. Rep. No. 1027, 98th Cong., 2d Sess. (1984)
H.R. Rep. No. 2067, 84th Cong., 2d Sess. (1956)
H.R. Rep. No. 570, 98th Cong., 1st Sess. (1983)
U.S. Dep't of Labor, Employment Standards Administration, OWCP, Workers' Compensation Under the Longshoremen's Act (1979)
S. Rep. No. 481, 87th Cong., 1st Sess. (1961)
S. Rep. No. 1125, 92d Cong., 2d Sess. (1972)
The Report of the National Commission on State Workmen's Compensation Laws (1972)
Webster's New International Dictionary (2d ed. 1958)
In the Supreme Court of the United States
_______________________________________
No. 10-1399
DANA ROBERTS, PETITIONER
v.
SEA-LAND SERVICES, INC., ET AL.
_______________________________________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________________
BRIEF FOR THE FEDERAL RESPONDENT
_______________________________________
The opinion of the court of appeals (Pet. App. 1-13) is reported at 625 F.3d 1204. The decisions of the Benefits Review Board of the United States Department of Labor (Pet. App. 14-27) and the administrative law judge (Pet. App. 28-32, 33-109) are unreported.
The judgment of the court of appeals was entered on November 10, 2010. A petition for rehearing was denied on February 10, 2011 (Pet. App. 110-111). The petition for a writ of certiorari was filed on May 11, 2011, and granted on September 27, 2011. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
Sections 906(b) and (c) of the Longshore and Harbor Workers' Compensation Act (Longshore Act or Act), 33 U.S.C. 901 et seq., provide:
(b) Maximum rate of compensation
(1) Compensation for disability or death (other than compensation for death required by this chapter to be paid in a lump sum) shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary under paragraph (3).
(2) Compensation for total disability shall not be less than 50 per centum of the applicable national average weekly wage determined by the Secretary under paragraph (3), except that if the employee's average weekly wages as computed under section 910 of this title are less than 50 per centum of such national average weekly wage, he shall receive his average weekly wages as compensation for total disability.
(3) As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year. The initial determination under this paragraph shall be made as soon as practicable after October 27, 1972.
(c) Applicability of determinations
Determinations under subsection (b)(3) of this section with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.
Additional statutory provisions appear in the appendix to this brief.
1. The Longshore Act establishes a federal workers' compensation system for an employee's disability or death arising in the course of covered maritime employment. 33 U.S.C. 903(a), 908, 909. The Act was "designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and their employers on the other." Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 636 (1983). "Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail." Ibid.
Under the Longshore Act, disability, defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury," 33 U.S.C. 902(10), is "in essence an economic, not a medical, concept." Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). Accordingly, the Longshore Act has from the beginning provided that "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." 33 U.S.C. 910; see 33 U.S.C. 910 (Supp. I 1928) (same).
Subject to a specified maximum and minimum, discussed below, (see pp. 5-6, infra), a totally disabled worker's compensation rate is two-thirds of his average weekly wage at the time of injury. 33 U.S.C. 908; see 33 U.S.C. 908(a) (Supp. I 1928) (same). [1] "This proportion," which is common to many workers' compensation schemes, "represent[s] a rough judgment about the adjustments needed to reflect the reduction in the disabled worker's work-related expenses, and to provide him an incentive to return to work." The Report of the National Commission on State Workmen's Compensation Laws 56 (1972) (National Commission Report).
As the proportion of wages replaced is increased, the worker is assumed to have less incentive to return to work. Of course, if the proportion is too low, a worker may be in such dire circumstances that he may be forced to return to work before he is properly recovered or he may become so demoralized as to be indefinitely disabled.
Ibid.
a. The Act has always placed upper and lower limits on compensation rates, applied after the calculation of two-thirds of the worker's average weekly wage at the time of injury. Maximum benefit levels are a typical feature of workers' compensation schemes because high- wage workers can obtain their own private disability insurance to replace part of their lost income, and because such limits conserve resources for the system to provide to more-needy disabled employees. See National Commission Report 37-38. Conversely, minimum benefit levels are intended to prevent low-wage disabled workers from ending up on public assistance because a "low-wage worker, if totally disabled, may be unable to live on the same proportion of lost remuneration that is appropriate for most workers." Id. at 37.
The floor and ceiling levels have changed through the years. But with each change, those levels, like the employee's average weekly wage that provides the starting point for benefit calculation, have been keyed to the time of an employee's disabling injury. As originally enacted in 1927, the Longshore Act provided that "[c]ompensation for disability shall not exceed $25 per week nor be less than $8 per week: Provided, however, That if the employee's wages at the time of injury are less than $8 per week he shall receive his full weekly wages." 33 U.S.C. 906(b) (Supp. I 1928).
In 1948, Congress enacted the first of a series of increases to the minimum and maximum benefit levels under the Longshore Act. See Act of June 24, 1948, ch. 623, § 1, 62 Stat. 602 (increasing maximum weekly benefit level to $35 and minimum level to $12). Congress specified that those increases (along with the other changes made by the 1948 amendment) "shall be applicable only to injuries or deaths occurring on or after the effective date" of the amendments. See id. § 6, 62 Stat. 604. Because of that provision, an employee who suffered a disabling injury (or death) before enactment of the 1948 amendments was subject to the old minimum and maximum benefit levels, even if he received a formal compensation order (a formal administrative order specifying benefit levels under the Act, see 33 U.S.C. 919(e)) after enactment.
Congress increased both maximum and minimum benefit levels again in 1956 and the maximum benefit level in 1961. See Act of July 26, 1956, ch. 735, § 1, 70 Stat. 655 (maximum to $54 and minimum to $18); Act of July 14, 1961, Pub. L. No. 87-87, § 1, 75 Stat. 203 (maximum to $70). In both instances, Congress again expressly provided that the increases would be tied to the time of disabling injury (or death), not the time of a formal compensation order. See § 9, 70 Stat. 656 (amendments made to benefit floor and ceiling "shall be applicable only with respect to injuries and death occurring on or after the date of enactment"); § 4, 75 Stat. 204 ("The amendments made by the foregoing provisions of this Act shall become effective as to injuries or death sustained on or after the date of enactment.").
b. Throughout this period, Congress was aware that "economic changes * * * affect[ing] the levels of wages and living costs" made periodic increases in the maximum and minimum benefit levels necessary because the Act lacked a "self-adjustment feature." H.R. Rep. No. 2067, 84th Cong., 2d Sess. 1-2 (1956); see S. Rep. No. 481, 87th Cong., 1st Sess. 2 (1961). Without such a feature, maximum and minimum benefit levels eroded over time, and the only remedy was for Congress to amend the Act. Thus, "[t]he $70 maximum on death and disability benefits, established in 1961, gradually lost real value as inflation exacted its annual toll, and in 1972 Congress moved to give covered workers added protection." Director, OWCP v. Rasmussen, 440 U.S. 29, 32 (1979) (footnote omitted); see id. at 32 n.4 ("The $70 limitation on death and disability benefits precluded most employees and their survivors from receiving 66 2/3% of the employee's average weekly wages, and in some cases the $70 maximum constituted as little as 30% of the employee's average weekly wages."). In response to this problem, when Congress amended the Longshore Act in 1972, it not only made the maximum and minimum benefit levels more generous, but also provided a self-adjustment mechanism. See 33 U.S.C. 906. The result was to make later statutory revisions of maximum and minimum benefit levels unnecessary.
The 1972 amendments provided that the previous fixed-dollar maximum and minimum benefit levels would be replaced with calculations based on the "applicable national average weekly wage." 33 U.S.C. 906(b)(1) and (2); see 33 U.S.C. 902(19) (defining "national average weekly wage" as "the national average weekly earnings of production or nonsupervisory workers on private nonagricultural payrolls"); Rasmussen, 440 U.S. at 32. [2] The national average weekly wage is determined by the Secretary of Labor each year, and is "applicable" for the "period," or fiscal year (FY), from October 1 of that year until September 30 of the next. 33 U.S.C. 906(b)(3). For FY 1973 (which ended on September 30, 1973), Congress set the maximum benefit rate under the Longshore Act at 125% of the "applicable" national average weekly wage. Congress then increased that rate by 25% per year until it reached 200% of that average wage for FY 1976 and all subsequent fiscal years. 33 U.S.C. 906(b)(1) (Supp. II 1972). Congress likewise used the national average weekly wage as the basis for calculating minimum benefits under the Act, providing that compensation for total disability shall not be less than 50% of the national average weekly wage (unless the employee's own average weekly wage was below that figure). See 33 U.S.C. 906(b)(2). [3]
The Act provides that the national average weekly wage for a particular year "shall apply to employees or survivors [1] currently receiving compensation for permanent total disability or death benefits during such period," and [2] "those newly awarded compensation during such period." 33 U.S.C. 906(c) (emphases added). The Director of the Department of Labor's Office of Workers' Compensation Programs (OWCP), who administers the Longshore Act, see Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997), has long interpreted the "newly awarded" clause of Section 906(c) to require application to initial benefit calculations of "the national average weekly wage * * * applicable at the time of injury," United States Dep't of Labor, Employment Standards Administration, OWCP, Workers' Compensation Under the Longshoremen's Act (1979), not the time of any later compensation order, if one is ultimately entered. [4] By contrast, the "currently receiving" clause of Section 906(c) operates as a cost-of-living adjustment and applies each year's national average weekly wage to adjust maximum and minimum compensation levels, but applies only to persons currently receiving death or permanent total disability benefits on a prospective basis. See 33 U.S.C. 906(c); see also 33 U.S.C. 910(f).
c. The Act obligates an employer to pay compensation "promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer." 33 U.S.C. 914(a). If an employer that does not file a notice controverting liability fails to start payments within 14 days of receiving notice of a disabling injury from the employee, it must pay an additional ten percent of the overdue amount. 33 U.S.C. 914(e). While the employee must give notice of disability to the employer in order to be entitled to benefits, see 33 U.S.C. 912; 20 C.F.R. 702.211(a), the employee need not file a formal claim with the OWCP if the employer commences payments and there is no disagreement about the amount. And even when an employee does file a formal claim, the district director of the OWCP often is able to resolve the matter informally. See 20 C.F.R. 301 et seq. [5] "[I]n practice many pending claims are amicably settled through voluntary payments without the necessity of a formal order." Intercounty Constr. Corp. v. Walter, 422 U.S. 1, 4 n.4 (1975).
2. On February 24, 2002, petitioner slipped on ice and was injured while working for respondent Sea-Land Services, Inc. (Sea-Land) in Dutch Harbor, Alaska. Pet. App. 34, 37. He sought medical treatment two days later, but continued working until March 11, 2002. Id. at 37-38. Sea-Land's insurer, respondent Kemper Insurance Company (Kemper), paid petitioner compensation for temporary total disability from March 11, 2002 until July 15, 2003, and again from September 1, 2003 until May 17, 2005. Id. at 101. Kemper did so without entry of a compensation order. See 33 U.S.C. 914(a). After Kemper ceased payments at the end of that period, the matter was referred to an administrative law judge (ALJ) for a hearing in January 2006. Pet. App. 34; 20 C.F.R. 702.317.
3. a. In October 2006, the ALJ found that petitioner had suffered a disabling injury in the course of his maritime employment and was entitled to Longshore Act benefits. Petitioner was awarded compensation for temporary total disability from the date he became disabled, March 11, 2002, until his condition reached maximum medical improvement, or permanence, which the ALJ found was on July 11, 2005. Pet. App. 107-108. For the subsequent period from July 12, 2005, through October 9, 2005, petitioner was awarded compensation for permanent total disability. Id. at 107. The ALJ further found, however, that, beginning October 10, 2005, suitable, albeit lower-paying, alternative employment was reasonably available to petitioner, id. at 104-107. The ALJ consequently determined that petitioner was entitled to compensation for permanent partial disability from that date until Sea-Land and Kemper were ordered otherwise. Id. at 107-108.
The ALJ determined that petitioner's average weekly wage at the time of his injury, as calculated under Section 910 of the Act, was $2853.08, and that his residual earning capacity after October 10, 2005 was $720 per week. Pet. App. 95, 107. Based on his average weekly wage, petitioner's compensation rates, as calculated under Section 908, were: $1902.05 for his periods of total disability ($2853.08 x 2/3); and $1422.05 for his periods of partial disability (($2853.08 - $720.00) x 2/3). See p. 4 & n.1, supra.
Both of these compensation rates exceeded $966.08 per week, the maximum rate in effect for the year in which petitioner was injured (FY 2002). Consistent with the Director's longstanding position, see p. 9, supra, the ALJ found that petitioner was limited to that maximum rate for all periods of temporary total and permanent partial disability. Pet. App. 107-108. [6] The ALJ also ordered Sea-Land to "pay interest on each unpaid installment of compensation from the date the compensation became due." Id. at 108. The ALJ ordered the district director to make the calculations necessary to implement the award. Ibid.
b. Although petitioner had previously agreed that the maximum compensation rate applicable at the time of his disabling injury ($966.08) applied, see Pet. App. 101, he sought reconsideration, arguing that he was entitled to the FY 2007 maximum rate of $1114.44 because the ALJ's compensation order (dated October 12, 2006, see id. at 33) was issued in that fiscal year. In a supplemental memorandum, however, petitioner conceded that the ALJ's application of the FY 2002 maximum rate was correct under binding Benefits Review Board (Board) precedent, Reposky v. International Transp. Servs., 40 Ben. Rev. Bd. Serv. (MB) 65 (Oct. 20, 2006), which was issued after the ALJ's initial decision. Pet. App. 29. The ALJ agreed that Reposky controlled and thus denied the motion for reconsideration. Id. at 28-32.
In Reposky, the Board, adopting the longstanding position of the Director, held that a claimant is "newly awarded" compensation, for purposes of Section 906(c), "when benefits commence, generally at the time of injury." 40 Ben. Rev. Bd. Serv. (MB) at 74. Accordingly, the Board rejected the contention that the applicable national average weekly wage is the one in effect at the time a formal compensation order is issued. Id. at 74-76. The Board agreed with the Director's position that applying the national average weekly wage for the year of the disabling injury "maintains consistency in the statute and yields rational results." Id. at 76; see ibid. (approach "achieve[s] consistent results for all claimants").
4. Petitioner, Sea-Land, and Kemper appealed the ALJ's decision to the Board, which affirmed in all respects. Pet. App. 14-27. The Board, relying on Reposky, rejected petitioner's argument that he was "newly awarded" compensation in October 2006, when the ALJ's order was issued, and thus entitled to the FY 2007 maximum compensation rate. Id. at 18-20.
5. The court of appeals affirmed in relevant part. Pet. App. 1-13. The court noted that the Act uses the verb "award" in two different ways: as either "[t]o give or assign by sentence or judicial determination," id. at 6 (quoting Astrue v. Ratliff, 130 S. Ct. 2521, 2526 (2010) (citation omitted)) or "to refer to an employee's entitlement to compensation under the Act, even in the absence of a formal order," ibid. The court cited several examples of the Act's use of the word "award" that had the latter meaning. See id. at 6-8 (citing 33 U.S.C. 908(c)(22) (defining the "award" for loss of specified body parts, which must be paid even absent a formal compensation order); 908(c)(20) (requiring compensation to be "awarded" for disfigurement without a formal compensation order); 910(h)(1) (using "awarded compensation" and "entitled" to compensation to mean the same thing); 933(b) (defining award, for purposes of that subsection only, as a compensation order)). The court held that Section 906(c) used the word "awarded" in that same sense, concluding that an employee is "newly awarded" compensation when he first becomes disabled and entitled to benefits, whether or not a formal compensation order is ultimately entered. Pet. App. 7.
Reading Section 906(c) "with a view to [its] place in the overall statutory scheme," the court of appeals concluded that its interpretation of the section "accords with the structure of the [Longshore Act], which identifies the time of injury as the appropriate marker for other calculations relating to compensation"—including determinations under Section 910 of the employee's average weekly wage, "the starting point for determining compensation." Pet. App. 8 (internal citation omitted). "To apply the national average weekly wage with respect to a year other than the year the employee first becomes disabled," the Court reasoned, "would be to depart from the Act's pattern of basing calculations on the time of injury." Id. at 8-9.
The court also noted that making the date of a formal compensation order dispositive would produce "inequitable results." Pet. App. 9 n.1. "Two claimants injured on the same day could be entitled to different amounts of compensation depending on when their awards are entered." Ibid. The court rejected petitioner's contention that the possibility of a higher maximum compensation rate for employees with later-filed compensation orders would "encourage[] employers to expedite administrative proceedings rather than delay the process." Ibid. The court pointed out that the Act includes other provisions expressly designed to discourage such conduct. See ibid. (citing 33 U.S.C. 914(e) (imposing additional payment obligation when employer that does not file notice controverting liability fails to pay compensation due without an award)). [7]
The national average weekly wage in effect at the time of an employee's disabling injury—not the one in effect when a formal administrative compensation order may be later entered—serves as the basis for calculating the employee's maximum benefit level under the Long- shore Act.
1. The Longshore Act takes "the average weekly wage of the injured employee at the time of the injury * * * as the basis upon which to compute compensation," 33 U.S.C. 910, and sets compensation for total disability at two-thirds of that figure, 33 U.S.C. 908(a)-(b). The Act caps benefits, however, at 200% of the "applicable national average weekly wage," 33 U.S.C. 906(b)(1), and provides that the calculation of that average for a fiscal year "shall apply to employees or survivors * * * newly awarded compensation during such period," 33 U.S.C. 906(c).
Examined in isolation, the word "awarded" is ambiguous. It can mean either granted by adjudicatory order or simply bestowed upon. Different provisions of the Longshore Act use the word "award" in each sense. While the Act sometimes uses "award" to mean provide in an administrative compensation order, it also frequently uses the word to refer to payment of compensation required by operation of the Act itself, even absent a compensation order. It is thus necessary to examine the context of each provision that uses the term to determine which meaning Congress intended. See Robinson v. Shell Oil Co., 519 U.S. 337, 341-344 (1997).
The statutory context and role of the maximum compensation level in the statutory scheme establish that an employee is "newly awarded compensation" within the meaning of Section 906(c) when he is awarded compensation "by force of the Act," American Stevedores, Inc. v. Porello, 330 U.S. 446, 456 (1947)—at the time of a disabling injury. That construction of Section 906(c) harmonizes it with two fundamental features of the Long- shore Act: the calculation of initial benefit levels based on circumstances at the time of disabling injury and the requirement that employers pay disabled workers without a compensation order.
Section 906 places a ceiling on compensation levels that are calculated based on an employee's wages at the time of a disabling injury. See 33 U.S.C. 910; 33 U.S.C. 906. The national average wage level used to calculate that ceiling logically should be taken from the same time period. Moreover, most employees are not subject to the maximum benefit levels established by Section 906, and they unquestionably have their wages calculated based entirely on circumstances existing at the time of injury. See 33 U.S.C. 910. There is no reason to think Congress would have wanted the arbitrary date of a compensation order to serve as the basis for benefit calculations in the relatively small number of cases, like this one, that do implicate the statutory maximum.
Interpreting Section 906(c) to make applicable the national average weekly wage from the year of a disabling injury, rather than the year of a compensation order, also harmonizes that provision with the Act's requirement that employers pay compensation within 14 days of notice of injury and "without an award." 33 U.S.C. 914(a) and (b). It does not make sense to read Section 906(c) as making applicable the national average weekly wage for the year in which a compensation order may later be issued, given that the Act requires compensation payments to be made without such an order.
Indeed, in the many Longshore Act cases in which employers immediately pay compensation as required by the statute, no compensation order is ever entered. In such cases, a rule requiring application of the national average weekly wage from the year a compensation order issued would be impossible to apply. And even in cases in which a compensation order does ultimately issue, that event can take place years after an employer is required to start compensation. Under petitioner's view of the Act, such situations would make retroactively applicable the national average weekly wage from the year of the compensation order, thus penalizing an employer that began paying compensation just after an injury for having failed to divine when in the future a compensation order might issue and what the national average weekly wage would be at that future time.
Petitioner's response to this problem is to suggest that compensation orders be promptly entered in every Longshore Act case. See Pet. Br. 43. That would upend decades of settled practice under the Act because "many pending claims are amicably settled through voluntary payments without the necessity of a formal order." Intercounty Constr. Corp. v. Walter, 422 U.S. 1, 4 n.4 (1975). Indeed, when the employer begins prompt payment of compensation and there is no dispute with the employee, the Act does not even require the employee to file a claim, which makes Section 919—the provision on which petitioner relies for his argument that compensation orders are mandatory—inapplicable. See 33 U.S.C. 919.
Petitioner also contends that giving employees the benefit of the (higher) national average weekly wage applicable at the time of a compensation order, rather than at the time of the disabling injury, would encourage employers to accede to compensation orders quickly. As noted, however, compensation orders are not required, and, in any event, using a higher national average weekly wage as a remedy for delay would be both under- and over inclusive. That remedy would provide no help to the majority of workers who are not subject to the statutory maximum at all, while at the same time providing a windfall to employees whose compensation orders issue in a fiscal year later than their injury through no fault of the employer. Instead, providing interest on delayed compensation is the sensible way the Act addresses compensation delay.
Application of the national average weekly wage rate for the year in which the injury occurred is also confirmed by the statutory evolution of the Longshore Act and the legislative history of the 1972 and 1984 amendments to the Act concerning Section 906.
2. Analysis following the normal rules of statutory construction establishes that Section 906(c) makes applicable the national average weekly wage from the year of an employee's disabling injury, not that of a compensation order. To the extent the statute is ambiguous on this question, however, the Court should defer to the reasonable interpretation advanced by the Director, OWCP, who has been delegated the authority to administer the Longshore Act. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). The Director has consistently articulated the position that the national average weekly wage at the time of injury applies, and he has done so as a participant in formal agency adjudications and in his day-to-day administration of benefits under the Act. That position is, at the least, a reasonable interpretation of the statute, and it is entitled to deference.
The Longshore Act requires employers to begin compensation payments to a disabled worker "promptly" after the injury, without entry of a formal compensation order, 33 U.S.C. 914(a), and it consistently bases benefit-level calculations on circumstances that existed at the time of injury, see, e.g., 33 U.S.C. 910. Petitioner's contention—that maximum benefit levels should be calculated based on circumstances at the time an administrative compensation order is entered, potentially years after the disabling injury—is irreconcilable with both of those structural features of the Act. Petitioner's interpretation of the Act would also render its maximum and minimum benefit levels impossible to calculate in large numbers of cases in which the employer pays benefits under the compulsion of the Act itself rather than awaiting a compensation order that reduces that statutory obligation to an administrative judgment. The Court should interpret Section 906(c) consistently with the longstanding interpretation of the Director, OWCP, as making applicable the national average weekly wage at the time of the disabling injury, not at the time of any formal compensation order that may later happen to be entered.
The Longshore Act defines "disability" as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." 33 U.S.C. 902(10). That is "in essence an economic, not a medical, concept." Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). The Act has from the beginning provided that "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." 33 U.S.C. 910; see 33 U.S.C. 910 (Supp. I 1928) (same). Accordingly, "in order to calculate benefits under the Act, one must be able to identify the appropriate time of injury." Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 164 n.13 (1993). And the employer must make that determination—and all benefit calculations that flow from it—very quickly, because the Act requires that "[c]ompensation * * * be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer." 33 U.S.C. 914(a); see 33 U.S.C. 914(b) (first payment due 14 days after employer receives notice of injury); 33 U.S.C. 914(e) (extra payment of ten percent due for not meeting payment deadline, unless employer has filed notice with district director that it is controverting liability).
In cases of total disability, the employee's default benefit level is two-thirds of his own average weekly wage at the time of injury. See 33 U.S.C. 908(a) and (b). That benefit level, however, is capped at "an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary [of Labor]." 33 U.S.C. 906(b)(1). The Secretary's calculation "with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period." 33 U.S.C. 906(c).
In petitioner's view, there is only one permissible meaning of the phrase "those newly awarded compensation" in Section 906(c)—it means those who newly received a formal compensation order, thus making issuance of such an order the controlling event for determining which national average weekly wage applies. E.g., Pet. Br. 15; accord Boroski v. DynCorp Int'l, No. 11- 10033, 2011 WL 5555686, at *8-*17 (11th Cir. Nov. 16, 2011); Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 906 (5th Cir. 1997). That is incorrect. When read in light of the Act as a whole and the role that maximum and minimum benefit levels play in the larger scheme, the phrase "newly awarded compensation" is best read to mean newly due "by force of the Act" itself at the time of a disabling injury, American Stevedores, Inc. v. Porello, 330 U.S. 446, 456 (1947), not an administrative compensation order.
The verb "award" can mean to formally grant by judicial decree (as petitioner would have it interpreted in Section 906(c) and throughout the Act), but it also can simply mean to confer upon. See, e.g., Webster's New International Dictionary 192 (2d ed. 1958) ("[t]o give by sentence or judicial determination" and "[t]o confer or bestow upon"); Black's Law Dictionary 174 (rev. 4th ed. 1968) ("[t]o give or assign by * * * judicial determination" and "[t]o grant, concede, or adjudge to"); see also American Heritage Dictionary of the English Language 124 (4th ed. 2006) ("[t]o grant as merited or due" and "[t]o give as legally due"). [8]
As demonstrated below, Congress used the word "award" (both as a noun and as a verb) in both senses in the Longshore Act. It is therefore necessary to consider the statutory context to determine which meaning Congress intended in a particular provision. For that reason, this case is analogous to Robinson v. Shell Oil Co., 519 U.S. 337 (1997). That case presented the question whether the term "employees" in the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 was limited to "current employees" or also included former employees. Id. at 339. The Court observed that different sections of Title VII used the term "employee" in each distinct sense; "employee" accordingly did not have "the same meaning in all * * * sections and in all * * * contexts." See id. at 342-343. "Once it is established that the term ‘employees' includes former employees in some sections, but not in others," the Court reasoned, "the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute." Id. at 343-344.
The same mode of analysis is called for here. The Act at times uses the word "award" to mean compensation order. See, e.g., 33 U.S.C. 914(a) ("Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer."). In other parts of the statute, however, context demonstrates that Congress used "award" to mean a grant of compensation by operation of the Act itself. Some of those provisions are described below:
Section 908(d) (1). As a supplement to its other forms of compensation, the Act provides for additional payments for employees who suffer certain loss-of-use injuries on the job. See 33 U.S.C. 908(c)(1)-(19), (22). For example, an employee who loses an arm as the result of an on-the-job accident is entitled to a payment of two-thirds of his average weekly wage for 312 weeks. See 33 U.S.C. 908(c)(1). The Act provides that if an employee who is receiving such loss-of-use compensation "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." 33 U.S.C. 908(d)(1) (emphasis added). Because employees often receive compensation under the Longshore Act without a formal compensation order, see 33 U.S.C. 914(a); pp. 9-10, supra, many employees who received benefits under Section 908(d)(1) will not have had an "award" in that sense. If petitioner's reading of the Act were correct, such an employee's survivors would not be entitled to any compensation under Section 908(d)(1) if the employee died. There is no reason to think that Congress intended such an arbitrary result.
Section 908(c). Section 908(c) of the Act also "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." Pet. App. 6. For example, that provision (titled "Compensation for disability") provides that "compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head, or neck." 33 U.S.C. 908(c)(20) (emphasis added); see also 33 U.S.C. 908(c)(22) ("the award of compensation" for loss of multiple body parts "shall be for the loss of, or loss of use of, each such member or part * * *, which awards shall run consecutively") (emphasis added). As the court of appeals noted, "[b]y use of the term ‘awarded'" in those subsections, "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." Pet. App. 6; see 33 U.S.C. 914(a).
Petitioner speculates that "[t]hose references merely contemplate that awards will be entered." Pet. Br. 30. But, as noted above, the statute expressly contemplates that compensation will be paid "without an award" in the form of a formal compensation order, 33 U.S.C. 914(a); indeed, the statute mandates such payments. Unless the employer controverts liability, it is thus legally obligated to pay $7500 to an employee who suffered a "serious disfigurement of the face, head, or neck," whether or not the employee has received a compensation order. See ibid.; 33 U.S.C. 908(c)(20).
Section 910(h) (1). Section 910(h)(1) provides another example of the Act's use of "the term ‘awarded' to refer to an employee's entitlement to compensation, irrespective of a formal compensation order." Pet. App. 7. That provision, which was added by the 1972 amendments to the Act, authorized adjustments to the "compensation to which an employee or his survivor is entitled due to total permanent disability or death which commenced or occurred prior to" the 1972 amendments to the Act. 33 U.S.C. 910(h)(1). In general, it provided that those individuals would have the post-amendment national average weekly wage substituted for their own average weekly wage and would then have their compensation calculated as if their injury had occurred in 1972. See ibid.; see n.2, supra. The Act provided an alternative method of adjustment, however, "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." 33 U.S.C. 910(h)(1) (emphasis added). Those individuals had their benefits calculated based on their own average weekly wage at the time of the injury, but would receive a percentage increase based on inflation. See ibid.
If petitioner were correct that "awarded" always means entry of a formal compensation order, then the applicability of the alternative method of adjustment in Section 910(h)(1) would be strangely incomplete. It would arbitrarily distinguish between employees based on whether or not they had received benefits under a formal compensation order. If so, they would be subject to the alternative method of calculation. If not, they would receive a higher compensation rate by having their benefits calculated as if the relevant injury had occurred in 1972.
We are not aware of any decision (and petitioner cites none) making such a distinction when interpreting Section 910(h)(1), and the provision's legislative history makes clear that it was intended to apply to all individuals who "had received less than the maximum rate of compensation," S. Rep. No. 1125, 92d Cong., 2d Sess. 22 (1972), with no suggestion that it mattered whether the payment obligation was embodied in a compensation order. That interpretation is confirmed by the final sentence of Section 910(h)(1), which provides that "[w]here 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." 33 U.S.C. 910(h)(1). That sentence—which does not use the word "award" at all—makes clear that what matters is the time of "injury," not whether the obligation to provide compensation for it arose from a compensation order as well as the Act itself.
Section 933(b). Finally, Section 933(b) of the Act provides another example of a provision that precludes a conclusion that the Act invariably uses the word "award" to mean compensation order. That provision states that, under certain circumstances, "[a]cceptance of [Longshore Act] compensation under an award in a compensation order filed by the deputy commissioner, an administrative law judge, or the Board shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against" a third party for the injury. 33 U.S.C. 933(b) (emphasis added). That provision is triggered by only one particular type of "award": an "award in a compensation order." Ibid. If "award" in the Longshore Act always means "compensation order," as petitioner contends (Pet. Br. 22), it would have been unnecessary for Congress to include the phrase "in a compensation order" in Section 933(b). Congress's decision to do so reflects its understanding that there can exist awards not in a compensation order, i.e., when an employer pays benefits after a disabling injury because of its obligation to do so directly under the Act itself, see 33 U.S.C. 914(a).
This reading of Section 933(b) is confirmed by this Court's decision in Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529 (1983) (Pallas Shipping). That case presented the question "whether a longshoreman's acceptance of voluntary compensation payments," i.e., without a compensation order, "gives rise to an assignment" under Section 933(b). Id. at 531. The Court answered that question in the negative:
Section [933(b)] triggers an assignment of an injured longshoreman's cause of action against a third party only after he has accepted compensation "under an award in a compensation order filed by the deputy commissioner or Board." (Emphasis added.) The term ‘compensation order' in the [Longshore Act] refers specifically to an administrative award of compensation following proceedings with respect to the claim. 33 U.S.C. § 919(e). In this case, no administrative proceedings ever took place, and no award was ever ordered by the Deputy Commissioner.
Id. at 534 (footnote omitted). Instead, the compensation at issue in Pallas Shipping was provided by the employer as required by operation of the Act itself, and therefore did not result in assignment of any cause of action against a third party.
Congress subsequently amended Section 933(b) in 1984 expressly to provide that "[f]or 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." Longshore and Harbor Workers' Compensation Act Amendments of 1984 (Act of 1984), Pub. L. No. 98-426, § 21(a), 98 Stat. 1652. As the court of appeals noted, this provision "contemplates that the meaning of the term ‘award' in other sections is not limited to a formal compensation order." Pet. App. 8. "Unless ‘award' is used in other sections to mean something broader than a formal compensation order, the specific definition in section [933(b)] would be unnecessary." Ibid.
Petitioner does not attempt to provide independent significance to the new definitional provision in Section 933(b), instead acknowledging that, on his reading of the statute, it was "unnecessary" because the term award "had the unmistakable meaning, even before that sentence was added and throughout the Act, that the added sentence sought to nail down." Pet. Br. 29. That contention disregards the "cardinal principle of statutory construction that [the courts] must give effect, if possible, to every clause and word of a statute." Williams v. Taylor, 529 U.S. 362, 404 (2000) (quotation marks and internal citation omitted); see Board of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 131 S. Ct. 2188, 2196 (2011) (relying on this canon to reject a construction that would have rendered an element of a definitional provision "surplusage") (internal citation omitted). Moreover, it is telling that the new definitional provision in Section 933(b) (which congressional conferees noted was "in accord with the decision in Pallas Shipping," H.R. Conf. Rep. No. 1027, 98th Cong., 2d Sess. 36 (1984)) ensured that the specialized meaning of "award" Pallas Shipping gave to that term would be limited to "this subsection," i.e., Section 933(b), and not the entire Act, as petitioner contends should be the case.
Section 906(c) "must be read in * * * context and with a view to [its] place in the overall statutory scheme." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see Reno v. Koray, 515 U.S. 50, 62 (1995) (rejecting interpretation of statutory provision that was "plausible * * * if the phrase [was] read in isolation" but that did "not carry the day" in light of further "textual and historical analysis"); Robinson, 519 U.S. at 343-344. Read in the context of the broader statutory scheme, Section 906(c), like the provisions discussed above, cannot sensibly be read to use "award" to mean "issue a compensation order." Instead, the provision contemplates that an employee is "newly awarded compensation" by force of the Act itself once he suffers a disabling injury. That is consistent with how this Court has described Longshore Act benefits, see American Stevedores, 330 U.S. at 456 ("The employee thus receives compensation payments quite soon after his injury by force of the Act."), and payments made under other workers' compensation schemes, see Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 500 (1939) (referring to "provisions of the California [workers' compensation] statute awarding compensation for injuries to an employee occurring within its borders").
a. As an initial matter, the Director's interpretation is the only one consistent with the Act's singular focus on the time of disabling injury as the basis for initial benefits calculations. See Pet. App. 8. [9] The Act defines "disability"—a foundational term underlying the entire benefit scheme—as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." 33 U.S.C. 902(10) (emphasis added). Accordingly, "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." 33 U.S.C. 910 (emphasis added).
Section 906(c) in turn establishes a floor and a ceiling for compensation levels that are initially calculated based on the employee's wages at the time of the disabling injury. That provision is thus logically read to apply to an initial benefit calculation the maximum and minimum benefit levels that are likewise based on circumstances that existed at the time of the injury. Conversely, there is no apparent justification for determining a basic compensation rate based on an employee's average weekly wage at the time of his disabling injury, but capping that initial compensation based on a national average weekly wage from years later. It seems even less likely in light of the fact that the "applicable national average weekly wage" increases each year, while the employee's own average weekly wage does not, meaning petitioner's interpretation would require comparison not only of average wages from different years, but of a fixed sum (the employee's average weekly wage) to one that changes annually (the national average weekly wage). [10]
Interpreting Section 906(c) to make applicable the national average weekly wage at the time of a disabling injury also harmonizes that provision with the way the Act applies to employees whose average weekly wages are not high enough for Section 906's maximum rate to apply. Regardless of the nature or extent of such a worker's disability, or when—or even if—the worker later receives a compensation order, the amount of compensation is based on the worker's average weekly wage at the time of the injury. See 33 U.S.C. 910; 33 U.S.C. 908(a), (b) and (c). For most workers, that compensation rate does not change over time. There is an exception for claimants receiving compensation for death or permanent total disability, who are entitled to annual increases tied to the increase in the national average weekly wage. 33 U.S.C. 910(f). But whether entitled to annual increases under Section 910(f) or not, no claimant who is unaffected by Section 906's maximum rate receives a higher initial compensation rate based on whether or when a compensation order is issued.
The Director's interpretation of the Act, as adopted by the court of appeals, gives this same treatment to claimants who are affected by Section 906's maximum rate: they initially receive the maximum rate in effect at the time of the injury, and those receiving compensation for death or permanent total disability are entitled to prospective annual increases tied to the national average weekly wage. See 33 U.S.C. 906(c) (applying a given fiscal year's determination to any claimant "currently receiving compensation for permanent total disability or death"). But, as with claimants not at the maximum rate, no claimant is entitled to a higher initial maximum rate based on the date of any compensation order that may later be entered.
Under petitioner's interpretation of the Act, by contrast, an employee's compensation would often increase due to the mere fortuity of the timing of a compensation order, a matter that is often beyond the control of both employee and employer. This case illustrates the point. The hearing before the ALJ took place in January 2006, but the ALJ did not issue the compensation order until October 12, 2006. See Pet. App. 33-34. For that reason, petitioner contends that the FY 2007 national average wage should apply. But if the ALJ had issued his order a mere 13 days earlier, petitioner's theory would call for application of the FY 2006 average. Basing calculations on circumstances existing at the time of a disabling injury prevents benefit levels from changing based on mere administrative happenstance. [11]
b. Interpreting Section 906(c)'s use of the phrase "newly awarded compensation" to mean newly awarded compensation by force of the Act itself, rather than by an administrative compensation order, also harmonizes the provision with the Act's requirement that employers pay compensation absent compensation orders. See 33 U.S.C. 914(a) ("Compensation under this Act shall be paid periodically, promptly, and * * * without an award, except where liability to pay compensation is controverted by the employer."). Because the Act mandates that "compensation payments" be paid "quite soon after [an] injury by force of the Act" itself, American Stevedores, 330 U.S. at 456 (citing 33 U.S.C. 914), it is logical to interpret Section 906(c) as contemplating payments of the same nature.
Petitioner's interpretation of Section 906(c), by contrast, would render it impossible to apply in the many Longshore Act cases in which the employer pays compensation pursuant to Section 914(a), with no compensation order ever being issued. If the applicable maximum benefit level were calculated based on the date a compensation order was entered, as petitioner contends should be the case, an employer that begins providing benefits without such an order (as it is required to do by Section 914(a)) would not know what maximum to apply.
Consider a highly compensated worker injured, like petitioner, in FY 2002. As required by 33 U.S.C. 914(b), the employer pays compensation within 14 days, and does so at the FY 2002 maximum rate. This situation continues until 2005, when a dispute develops. Litigation ensues and the worker prevails, resulting in a formal compensation order in FY 2007. On petitioner's interpretation of Section 906(c), the employer is required to pay benefits at the FY 2007 maximum rate— not only going forward, but also retroactively to the date of disability, with interest on the difference between the total sums payable under the FY 2002 and FY 2007 maximums.
Indeed, under petitioner's understanding of the Act, this same hypothetical employee would apparently be entitled to the same increase in his maximum benefit level even if he lost his later dispute with the employer. If the ALJ sided with the employer in the dispute and decided that the employee was not entitled to a higher rate of compensation, the ALJ would still embody that decision in a "compensation order" because, under the Act, that term means not only an "order" "making the award" but also an "order rejecting the [employee's] claim" and ordering that payment of compensation be maintained at current levels. 33 U.S.C. 919(e). Because the first and only "compensation order" in that situation would be issued in FY 2007, it appears that, under petitioner's view, the employee who litigated and lost would nonetheless be entitled to a retroactive increase in benefits to the FY 2007 maximum level.
Petitioner contends that such problems would not arise because, in his view, a compensation order should be entered in every case just after the start of benefit payments. See Pet. Br. 43. Petitioner's solution to the problem created by his interpretation of Section 906(c) would upend decades of settled practice under the Longshore Act, under which many employers pay—and employees receive—compensation without either party ever obtaining a formal compensation order. "[I]n practice many pending claims are amicably settled through voluntary payments without the necessity of a formal order by the deputy commissioner." Intercounty Constr. Corp. v. Walter, 422 U.S. 1, 4 n.4 (1975); see Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 498 (1992) (Blackmun, J., dissenting) ("[T]he Act presumes that employers, as a rule, will promptly recognize their [Longshore Act] obligations and commence payments immediately, without the need for a formal award.") (Cowart). Even petitioner acknowledges that "district directors rarely issue compensation orders on uncontested claims in which the employer is making payments." Pet. Br. 43.
Notwithstanding this long-settled practice, petitioner appears to contend (Pet. Br. 29 n.16, 43) that entry of compensation orders is compelled by the Act in every case in which compensation is paid. That is incorrect. In arguing that compensation orders are mandatory in all cases, petitioner relies on the final sentence of Section 919(c), which provides that if no hearing is ordered within 20 days after notice that a claim is filed, the district director "shall, by order, reject the claim or make an award in respect of the claim." 33 U.S.C. 919(c). Section 919, however, is titled "Procedure in Respect of Claims," and addresses the actions to be taken by the district director after "a claim for compensation [is] filed." 33 U.S.C. 919(a) (emphasis added). But if an employer begins paying compensation within 14 days of notice of an injury, as required by Section 914(b), the employee is not required—and if satisfied with payment, has no need—to file a claim. In that event, Section 919—including its Subsection (c), on which petitioner relies—is not triggered.
The Act's limitations provision recognizes this feature of the Act. That provision generally requires a claim to be filed within a year of the injury or death, but it also provides that "[i]f payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment." 33 U.S.C. 913(a); see 20 C.F.R. 702.221(a) (same); see also 33 U.S.C. 919(a) (cross-referencing Section 913). Accordingly, an employer could pay without a compensation order for years, and if no dispute leads the employer to cease payments—i.e., there never is a "last payment"—then Section 913 contemplates that no claim need ever be filed. Unless a claim is filed, Section 919 simply has no application, and Subsection (c) could not require the issuance of an order.
Moreover, Department of Labor regulations provide that a formal compensation order is not required even when an employee elects to file a claim. In "the vast majority of cases" in which an employer has disputed a claim or an employee has contested some benefit-related action by the employer, "the problem giving rise to the controversy results from misunderstandings, clerical or mechanical errors, or mistakes of fact or law." 20 C.F.R. 702.301. "Such problems seldom require resolution through formal hearings," and "district directors are empowered to amicably and promptly resolve such problems by informal procedures." Ibid.; see 20 C.F.R. 31.8 (1972) (requiring prehearing conferences to try to "amicably * * * dispose of controversies wherever possible"). When agreement is reached through such informal procedures, the district director can "embody the agreement in a memorandum or * * * issue a formal compensation order." 20 C.F.R. 702.315(a) (emphasis added); see ibid. (district director is required to file a formal compensation order only if a party requests it).
As a background practice involving legal disputes generally, parties often resolve the dispute informally or through a settlement agreement, without entry of a judgment or order by a tribunal. There is no reason to conclude that Congress intended to foreclose such informal resolution of disputes under the Longshore Act, especially where, as is the case under governing regulations, discussions between employee and employer occur under the auspices of the district director, and the district director (or ALJ) must approve any resolution by means of a settlement agreement or memorandum, 20 C.F.R. 702.241-701.243, 702.315(a). Cf. United States v. Mezzanatto, 513 U.S. 196, 200-204 (1995) (interpreting rule of evidence in light of background legal practices). To the contrary, under the Longshore Act, informal resolution of a dispute implements in an amicable manner the employer's statutory obligation to pay compensation promptly, whether or not a formal compensation order is entered, see 33 U.S.C. 914(a), and thus places the parties in the same position they would have occupied if no dispute had ever arisen. That informal dispute resolution process also reasonably implements the provisions of Section 919 establishing procedures for resolving a claim, including the authority of a district director under Section 919(c) to "make or cause to be made such investigations as he considers necessary in respect of the claim" before ordering a hearing. 33 U.S.C. 919(c). Section 919(c) cannot reasonably be read to require a district director to issue a formal compensation order even if the parties resolve their difference informally and no party requests a compensation order.
c. Petitioner's interpretation of Section 906(c) should also be rejected because there is no indication Congress intended the arbitrary distinctions in compensation levels between similarly-situated employees that flow from it. See Pet. App. 9 n.1. Compare petitioner with a similarly situated worker who suffered the same injury on the same day, but who never has occasion to file a claim and obtain a compensation order. The only difference is that the hypothetical worker's employer pays compensation at the FY 2002 rate, $966.08 per week, from the date of the injury. Petitioner, on the other hand, secures a compensation order in 2007, which, on his reading of Section 906(c), entitled him, retroactively to FY 2002, to the $1114.44 maximum rate in effect for FY 2007. As a result, even though both employees are receiving compensation for the same disability that prevented them from earning the same wages during the same time period, petitioner would receive substantially higher benefits on his understanding of the Act.
Petitioner contends that these varying benefit rates are necessary to compensate claimants for delayed receipt of compensation. Pet. Br. 42. There are several flaws in that contention. First, petitioner's interpretation does not limit use of the date-of-order maximum to cases in which there has been a delay in payment. As discussed above, on petitioner's view he would be entitled to the FY 2007 maximum rate retroactively back to 2002, even if his employer had promptly paid weekly benefits at the FY 2002 maximum rate since the day he was injured but a compensation order was nonetheless entered at a later date. Second, compensation can be delayed in any case, not just the relatively few cases involving the maximum rate, making Section 906(c) a poor vehicle to remedy that problem. Third, it would be a vehicle available only to the highest-paid and lowest- paid claimants (those subject to maximum or minimum benefit levels), not to the many employees in between for whom delay might cause hardship. Finally, there is no need to resort to petitioner's interpretation of Section 906(c) to compensate employees for delay because a broadly applicable and calibrated tool is available: the payment of interest. See Matulic v. Director, OWCP, 154 F.3d 1052, 1059 (9th Cir. 1998) (interest accrues from the date benefits became due, not from the date of the ALJ's judge's award); Sea-Land Serv., Inc. v. Barry, 41 F.3d 903, 910 (3d Cir. 1994); Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 594 F.2d 986, 987 (4th Cir. 1979); Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir. 1971), cert. denied, 406 U.S. 958 (1972); Quick v. Martin, 397 F.2d 644, 648 (D.C. Cir. 1968). Indeed, petitioner received interest here. Pet. App. 108.
d. Contrary to petitioner's argument (Pet. 21), there is no conflict between the Director's interpretation of Section 906(c) and this Court's decision in Cowart, supra. Cowart involved Section 933 of the Act, which allows a "person entitled to compensation" under the Act to pursue claims against third parties responsible for injuries compensable under the Act without forgoing such compensation. See 33 U.S.C. 933(a). Section 933(g), however, provides that if the "person entitled to compensation" settles with a third party for less than the amount of compensation to which he is entitled, without first receiving written approval from the liable employer, all future benefits are forfeited. 33 U.S.C. 933(g)(1)-(2). The Court held that an employee was a "person entitled to compensation" as soon as he suffered an injury giving him a right to compensation under the Act, regardless of whether the employer had paid compensation or was subject to a compensation order. Cowart, 505 U.S. at 477. The Court simply held that issuance of a formal compensation order is not the only way to become a "person entitled to compensation" for purposes of Section 933(g). Because that provision does not contain the word "award," the Court in Cowart had no occasion to interpret that term, much less hold that compensation cannot be awarded by force of the Act.
e. The Board in Reposky v. International Transportation Services, 40 Ben. Rev. Bd. Serv. (MB) 65, 76 (Oct. 20, 2006), reached the same result as the court of appeals by focusing on Section 906(c)'s use of the term "during" rather than the term "awarded." See Pet. App. 19-20. It accepted the Director's interpretation that the phrase "newly awarded compensation during such period," 33 U.S.C. 906(c), means "newly awarded compensation for such period" rather than petitioner's preferred interpretation, "newly awarded compensation in such period." Reposky, 40 Ben. Rev. Bd. Serv. (MB) at 76. Like the court of appeals' interpretation of the Act, the Board's reading makes the "period" in which a disabling injury occurs (not that in which a compensation order issues) dispositive.
Section 908 of the Act uses the word "during" in that same sense. That section provides, in numerous places, that compensation is to be paid "during the continuance" of the relevant disability. 33 U.S.C. 908(a), (b), (c)(21), (23) and (e). This language clearly does not mean that compensation must be paid, or may only be paid, in the actual period of disability. Rather, it means that compensation is payable for the period of disability. That the compensation may be ordered at some date after the period of disability does not change the period for which—or the rate at which—that compensation is to be paid. [12]
3. The legislative history supports the Director's interpretation of Section 906(c)
The legislative history of the 1972 amendments to the Longshore Act supports the view that Congress did not intend the "newly awarded" provision of Section 906(c) to be based on the time of a formal compensation order, if one happens to be entered in the case. The Senate report identified workers newly awarded compensation under Section 906(c) as "those who begin receiving compensation for the first time during the period." S. Rep. No. 1125, 92d Cong., 2d Sess. 18 (1972). As noted previously, employees often "begin receiving compensation" (ibid.) in the absence of a formal compensation order. See 33 U.S.C. 914(a). Indeed, many employees never receive such an order. Accordingly, the committee's description of Section 906(c) is irreconcilable with petitioner's interpretation of that provision.
The legislative history of the 1984 amendments to Section 906 likewise supports the conclusion that it is the national average weekly wage rate at the time of injury that controls. After the 1972 amendments eliminated maximum and minimum rates fixed in the Act itself in favor of limits on disability benefits tied to the national average weekly wage as calculated by the Director, there was disagreement over whether Congress intended death benefits to be subject to any maximum rate. Resolving this conflict, the Court held that the maximum-rate formulas in Section 906(b)(1) applied only to compensation paid for disability, and not to compensation paid for death. Director, OWCP v. Rasmussen, 440 U.S. 29, 47 (1979).
In 1984, Congress amended Section 906(b)(1) to fill the gap identified by Rasmussen and apply the maximum rate to death benefits as well. Compare 33 U.S.C. 906(b)(1) ("Compensation for disability or death * * * shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage.") (emphasis added) with 33 U.S.C. 906(b)(1) (1982) ("[C]ompensation for disability shall not exceed * * * 200 per centum" of the national average weekly wage.). The Conference Committee explained that this amendment "impose[d] a cap on death benefits of 200% of the national average weekly wage, the same maximum applicable to disability cases. The conferees intend that the national average weekly wage subjected to the cap shall be the national average weekly wage applicable on the date of death." H.R. Conf. Rep. No. 1027, 98th Cong., 2d Sess. 28-29 (1984); see also H.R. Rep. No. 570, 98th Cong., 1st Sess. 8-9 (1983) ("[C]ompensation payments for death shall be limited to a maximum of 200% of the National Average Weekly Wage applicable on the date of death."); id. at 26 (same). Congress thus understood that it was applying the "same" maximum benefit levels to death that had previously applied to disability, and that those levels would be calculated based on the national average weekly wage in force at the time of death. It therefore necessarily understood that, in cases of disability, Section 906 rendered the average from the time of disabling injury applicable.
For the reasons given above, Section 906(c) is best read to refer to the national average weekly wage applicable at the time of an employee's disabling injury, not at the time of any compensation order that may later be entered. To the extent, however, that there is any ambiguity in the Act on that question, the Court should defer to the Director's reasonable interpretation of the statute he administers. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984).
Congress in the Longshore Act assigned the Secretary of Labor the "responsibility" of "supervising" and "administering" the "calculation of benefits and processing of claims" under the Act. Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 130-131 (1995). The Secretary has in turn delegated her responsibilities under the Act to the Director. See 20 C.F.R. 701.201; 74 Fed. Reg. 58,834 (Nov. 13, 2009).
There are several ways in which the Director interprets the Longshore Act in exercising his statutory duty to administer the Act. He may promulgate regulations. See 33 U.S.C. 939(a). He may "appear as a litigant before the relevant adjudicative branches of the Department of Labor, the ALJ, and the Benefits Review Board." Ingalls Shipbuilding, Inc. v. Director, OWCP, 519 U.S. 248, 263 (1997); see 20 C.F.R. 702.333(b). And through district directors, he interprets and applies the Act on a daily basis when he resolves disputes informally, calculates benefits awards, and issues legally binding compensation orders. See 20 C.F.R. 702.301- 703.315.
A regulation promulgated by the Director would clearly be entitled to Chevron deference; so too should the Director's authoritative interpretation of the Act when provided in formal agency adjudications, articulated in official guidance on the calculation of benefit levels, or used as his basis for making actual benefit calculations. See United States v. Mead Corp., 533 U.S. 218, 230-231 (2001) (notice-and-comment rulemaking is good indicator of entitlement to Chevron deference but "the want of that procedure * * * does not decide the [question]"); Barnhart v. Walton, 535 U.S. 212, 222 (2002) ("[T]he interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue.").
The Director's interpretation of the Longshore Act in administrative proceedings "is agency action, not a post hoc rationalization of it." Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157 (1991). "Under these circumstances, the [Director's] litigating position before the [Department] is as much an exercise of delegated lawmaking powers as is the [Director's] promulgation of a [regulation]." Ibid.; accord Gilliland v. E.J. Bartells Co., 270 F.3d 1259, 1262 (9th Cir. 2001) ("[T]he Director's interpretation of the [Long- shore Act] is entitled to deference if it is contained either in a regulation or in the Director's litigation position within an agency adjudication, so long as the interpretation is reasonable."). [13] But see Boroski, 2011 WL 5555686, at *6-*7.
As relevant here, the Director has long interpreted Section 906(c) to require application of the national average weekly wage in effect at the time of disabling injury, not at the time of any formal compensation order that may be entered later. He stated that position more than 30 years ago in an overview publication about the Longshore Act, outside the context of any litigation, see United States Dep't of Labor, Employment Standards Administration, OWCP, Workers' Compensation Under the Longshoremen's Act (1979), and, through the district directors, he has acted on that interpretation in his day- to-day administration of the Act, including in the informal resolution of disputes and in calculating benefit levels. In this case, the ALJ decided to apply the national average weekly wage from the time of injury, but in the administrative proceeding that led to the Eleventh Circuit's recent decision in Boroski, that determination was made by a district director. See 2011 WL 5555686, at *2.
Moreover, the Director successfully advocated adoption of his position by the Benefits Review Board in Reposky. See pp. 12-13, supra. The fact that the Director in Reposky advocated a different textual route to the same ultimate conclusion is of no import. To the extent there is ambiguity in Section 906(c), it inheres in the provision as a whole, and the Director in Reposky resolved that ambiguity just as he has now, by interpreting the provision in light of both the role it plays in the larger statutory scheme and his day-to-day experience administering the statute. Indeed, the Board's decision in this case summarized Reposky as holding "that the pertinent maximum rate is determined by the date the disability commences, as this interpretation of the language of Section [906(c)] ‘maintains consistency in the statute and yields rational results.'" Pet. App. 20 (quoting Reposky, 40 Ben. Rev. Bd. Serv. at 76).
Although the Board's decision itself is not entitled to deference, see Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980), its adoption of the Director's interpretation of Section 906(c) obviated any need for him to issue a regulation on the question. The fact that the Director was successful in having his interpretation adopted in a formal adjudication (that the agency's ALJs would subsequently be required to follow in all subsequent cases) should not result in the foreclosure of deference to that interpretation.
In all events, the Director's interpretation of the Act is, at the least, entitled to Skidmore deference. Rambo, 521 U.S. at 136 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). [14] That interpretation is persuasive for the reasons described above, and it is based on "a body of experience and informed judgment." Skidmore, 323 U.S. at 140.
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
M. PATRICIA SMITH RAE ELLEN FRANK JAMES SEAN G. BAJKOWSKI MATTHEW W. BOYLE |
DONALD B. VERRILLI, JR. EDWIN S. KNEEDLER JOSEPH R. PALMORE |
DECEMBER 2011
Footnotes
[1] Partially disabled employees, who are able to work after their injuries at a diminished wage, are typically entitled to two-thirds of the difference between their pre-disability average weekly wage and their "residual earning capacity" (i.e., the wages they earn or could earn through suitable alternative employment). See 33 U.S.C. 908(c)(21). In addition to this classification of disabilities as total or partial, disabilities under the Act are also categorized as "temporary" or "permanent." A disability is "temporary" if the claimant's medical condition is improving, and it becomes "permanent" when the claimant reaches maximum medical improvement. See 33 U.S.C. 908(a)-(e); see also Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 273-274 (1980); Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969). As happened in this case, a claimant's disability status can change even after it becomes "permanent" if, for example, suitable alternative employment is later identified, thus transforming the disability from permanent total to permanent partial.
[2] Unlike with the 1948, 1956, and 1961 amendments, "[t]he drafters of the 1972 amendments decided that the newer, more generous statutory terms should also apply to pre-1972 cases of disability and death." Director, OWCP v. Bath Iron Works Corp., 885 F.2d 983, 986 (1st Cir. 1989) (Breyer, J.), cert. denied, 494 U.S. 1091 (1990). But Congress effectuated this choice in a way that textually preserved the link between time of injury and benefit levels. The amendments provided that compensation for "total permanent disability or death which commenced or occurred prior to enactment of [the 1972 amendments] shall be adjusted" by "computing the compensation to which such employee or survivor would be entitled if the disabling injury or death had occurred on the day following such enactment date." Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 92-576, § 11, 86 Stat. 1258 (emphasis added); see 33 U.S.C. 910(h)(1).
[3] The historical list of national average weekly wages may be found at http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm. The national average weekly wage for the current fiscal year (October 1, 2011 to September 30, 2012) is $647.60, resulting in a maximum Longshore Act weekly benefit of $1295.20 and a minimum of $323.80.
[4] The most recent version of this document is from 2003 and includes the same statement. See http://www.dol.gov/owcp/dlhwc/LS-560pam.htm.
[5] District directors are officials in the OWCP responsible for the day- to-day administration of the Act, including attempts to informally resolve disputes. Because awards by ALJs are not effective until filed by a district director, 33 U.S.C. 921(a), district directors are frequently charged with the responsibility to calculate the amount of compensation due under ALJ decisions. The statute uses the term "deputy commissioner" rather than "district director," but the authority of the position remains unchanged. 20 C.F.R. 701.301(a)(7).
[6] For periods of permanent total disability, the ALJ determined that petitioner was entitled to that same rate, "plus any increases required under section [906] of the Longshore Act." Pet. App. 107. The ALJ was apparently referring to Section 906(c)'s "currently receiving" clause, which applies a new fiscal year's national average wage to claimants "currently receiving compensation for permanent total disability or death benefits during such period." 33 U.S.C. 906(c).
[7] Based on Section 906(c)'s "currently receiving" provision, the court of appeals held that the FY 2005 maximum rate applied to the compensation for permanent total disability to which petitioner was entitled from July 12, 2005, to September 30, 2005, and that the FY 2006 maximum rate applied to the period from October 1, 2005, to October 9, 2005. See Pet. App. 11-12 & n.2; 33 U.S.C. 906(c). Petitioner sought review of that question as well, contending that the "currently receiving" provision of Section 906(c) made the FY 2007 maximum rate applicable because that was the fiscal year in which he was ultimately paid benefits for those earlier periods. See Pet. ii, 21-22. This Court's order granting certiorari, however, limited review to his first question presented (on the "newly awarded" clause), see 132 S. Ct. 71; Pet. ii.
[8] Amicus American Association for Justice notes (Br. 10-11) that the Court in Astrue v. Ratliff, 130 S. Ct. 2521 (2010), explained that "[t]he transitive verb ‘award' has a settled meaning in the litigation context: It means ‘[t]o give or assign by sentence or judicial determination.'" Id. at 2526 (quoting Black's Law Dictionary 125 (5th ed. 1979)) (first emphasis added). That is true "in the litigation context." Ibid. But, as noted in the text, the word can have a different meaning in other contexts, and here, a fundamental feature of the Longshore Act is the employer's obligation to pay benefits (and the employee's entitlement to receive them) without litigation. See 33 U.S.C. 914(a).
[9] "[I]n most cases of traumatic injury," like the one in this case, "the time of injury will coincide almost exactly with the time the worker is disabled." Johnson v. Director, OWCP, 911 F.2d 247, 249 (9th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 959 (1991); see 33 U.S.C. 902(2) (statutory definition of injury distinguishing between "accidental injury or death" and "occupational disease or infection"); 33 U.S.C. 910(i) (special rules for occupational disease cases). There was actually a slight lag in this case—petitioner was injured on February 24, 2002, but continued working until March 11, 2002, Pet. App. 4—but both injury and onset of disability occurred in the same fiscal year. The court of appeals thus did not need to determine whether the national average weekly wage applicable at the time of the accident or at the time of subsequent onset of disability applied, and it used the two times interchangeably in articulating its rule. See, e.g., id. at 8 ("Our holding that an employee is ‘newly awarded' compensation when he first becomes disabled accords with the structure of the [Act], which identifies the time of injury as the appropriate marker for other calculations relating to compensation.").
Given that, just as in the typical traumatic injury case, the injury and onset of disability here occurred in the same fiscal year, there is no occasion for this Court to decide that question either. In any event, it is the position of the Director that in a traumatic injury case in which, unlike here, the accident and onset of disability were in different fiscal years, the national average weekly wage for the year of onset would apply because that is when the employee is "newly awarded compensation" by force of the Act, i.e., when the disability commenced.
[10] Because of Section 906(c)'s "currently receiving" provision, the maximum compensation for permanent total disability and death benefits will increase each year to reflect increases in the national average weekly wage. 33 U.S.C. 906(c); see 33 U.S.C. 910(f). That increase, akin to a cost-of-living adjustment, is prospective and does not affect the initial benefit calculation. See Pet. App. 10-12.
[11] Congress's understanding that the time of disabling injury is to be the trigger for benefits calculations under the Act is reflected in its practice of adopting special, statutorily defined times of injury to make benefit adjustments. As discussed above, Congress in 1972 adjusted benefit levels for previously disabled employees by providing them with a special, post-1972 "time of injury." See n.2, supra. Congress followed the same route when it addressed benefits for employees disabled by occupational diseases. See 33 U.S.C. 910(d)(2) and (i); Bath Iron Works Corp., 506 U.S. at 157 (describing provisions). The Act provides that in cases of "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 * * * should have been aware, of the relationship between the employment, the disease, and the death or disability." 33 U.S.C. 910(i). When that "time of injury" occurs within a year of an employee's retirement, then his "average weekly wage" for purposes of calculating benefit levels is the average weekly wage for the year immediately preceding his retirement. 33 U.S.C. 910(d)(2)(A). Congress went on expressly to link the national average weekly wage with the (special statutorily-defined) time of injury in occupational disease cases when it provided that if the "time of injury" occurs more than a year after retirement, the employee's "average weekly wage" for purposes of benefit calculations "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." 33 U.S.C. 910(d)(2)(B) (emphasis added).
[12] Petitioner does not argue that Section 908 should be given a different reading, but does contend that "during" cannot mean "for" in Section 906(c) because "during" is an adverbial modifier of "awarded." Pet. Br. 21. He does not explain how this is grammatically different from Section 908, in which "during" is an adverbial modifier of "paid."
[13] The Ninth Circuit recently granted rehearing en banc to consider the proper level of deference to be extended to the Director's interpretation of the Act. See Price v. Stevedoring Servs. of Am., Inc., 653 F.3d 928 (2011), granting reh'g of 627 F.3d 1145 (2010). En banc proceedings in Price have been stayed pending this Court's decision in this case.
[14] Rambo extended Skidmore deference to the Director's litigating position before this Court. See 521 U.S. at 136. That case did not present the question of the appropriate level of deference for positions taken by the Director in proceedings before the agency. Likewise, the Director has sought only Skidmore deference in Pacific Operators Offshore, LLP v. Valladolid, No. 10-507 (argued Oct. 11, 2011), because the Director in that case had not stated a position on the question presented in agency proceedings.