Roberts v. Director, Office of Workers' Compensation Programs
625 F.3d 1204
9th Cir.2010Background
- Roberts was injured in 2002 working for Sea-Land in Dutch Harbor; he suffered neck and shoulder injuries and stopped work on March 11, 2002.
- The ALJ identified disability periods as temporary total (Mar 11, 2002–Jul 11, 2005), permanent total (Jul 12, 2005–Oct 9, 2005), and permanent partial beginning Oct 10, 2005; average weekly wage at injury was $2,853.08; residual capacity $720/week.
- The ALJ applied a maximum rate of $966.08 (2002 NAWW 2002) because Roberts first became disabled in 2002; Sea-Land/insurer paid $966.08 weekly in all periods.
- The Benefits Review Board (BRB) affirmed; Roberts sought review in the Ninth Circuit.
- The court addressed whether the 6(c) max-rate triggers depend on when compensation is 'newly awarded' and when one is 'currently receiving' permanent total disability, for periods as the employee progresses through disability.
- The court ultimately held: 'newly awarded compensation' occurs when the employee is first entitled to compensation (time of injury), and 'currently receiving' refers to entitlement during the period, regardless of actual payment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is compensation 'newly awarded' under § 6(c)? | Roberts: newly awarded when formal award issued (2007). | Sea-Land: newly awarded when formal adjudicatory award issued. | Newly awarded means first entitlement to compensation, not the formal award date. |
| What constitutes 'currently receiving compensation for permanent total disability' under § 6(c)? | Roberts: only when actually paid; thus 2002 or later periods depend on payments. | Employer payment not required; entitlement suffices. | Entitlement during the period, regardless of actual payment, governs the rate. |
| Which NAWW period applies to the July 12, 2005–September 30, 2005 permanent total disability interval? | 2002 NAWW applies because 'newly awarded' occurred in 2002. | 2005 NAWW applies for the period of entitlement. | The 2005 NAWW applies; the ALJ erred in using 2002 NAWW for that period. |
Key Cases Cited
- Astrue v. Ratliff, 130 S. Ct. 2521 (2010) (interprets 'award' as a settled litigation entitlement concept; supports broader use of 'awarded' in § 6(c))
- Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir.1997) (restricts use of formal-order-only interpretation of 'newly awarded')
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (statutory interpretation within overall scheme; read statute in context)
- Rucker v. Davis, 237 F.3d 1113 (9th Cir.2001) (noted for potential inequities of timing; overruled on other grounds)