Boroski v. Dyncorp International
662 F.3d 1197
11th Cir.2011Background
- Boroski suffered permanent total disability from April 20, 2002, with neither party disputing his pre-injury wages were at the statutory maximum level.
- ALJ awarded PTD benefits beginning April 20, 2002 at the maximum rate but did not specify the rate.
- ICSOP began paying in 2008, using the 2002 rate of $966.08 per week.
- District Director found pay was timely and that the rate aligned with the period’s maximum.
- BRB affirmed in part and remanded, applying the rate in effect at disability onset (2002) contrary to Boroski’s position.
- District court and Ninth Circuit adopted approaches consistent with Roberts; Boroski argued for rate based on award date (2008).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What determines the maximum rate under §906(c)? | Boroski: rate tied to the award date (2008). | DynCorp/ICSOP: rate tied to disability onset (2002). | Plain language favors award-date (newly awarded) approach. |
| Does §906(c) require using current year’s NAWW for newly awarded claims? | Yes, use the rate in effect when awarded (2008). | No, use rate in effect at onset of disability (2002). | Court holds newly awarded compensation uses the rate in effect at award (2008). |
| Is Skidmore deference applicable to Director’s position on §906(c)? | Director’s position supported by Skidmore deference. | Skidmore not controlling; plain meaning governs. | Skidmore deference accorded but not dispositive; textual reading controls. |
| Did Roberts or Wilkerson control interpretation of ‘awarded’ and ‘newly awarded’? | Courts should follow Wilkerson’s Fifth Circuit reading. | Roberts rejects Wilkerson’s approach. | Court favors Wilkerson’s interpretation as aligned with plain §906(c) text. |
Key Cases Cited
- Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir. 1997) (max rate applied is the rate in effect when awarded, not injury date; 1972–94 adjustments apply to newly awarded)
- Roberts v. Director, OWCP, 625 F.3d 1204 (9th Cir. 2010) (rejects Roberts’ reading; holds ‘awarded’ means entitled to compensation; uses date of entitlement for rate)
- Price v. Stevedoring Servs. of Am., Inc., 627 F.3d 1145 (9th Cir. 2011) (discussion of deference to Director’s positions; reiterates Roberts framework and attendant critique)
- CBS, Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1225 (11th Cir. 2001) (plain language rule is the largest canon; deference is limited when plain meaning clear)
- Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (U.S. 1992) (affirms entitlement meaning; cannot redefine statutory terms by policy preferences)