§ 908. — Compensation for disability.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC908]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 18--LONGSHORE AND HARBOR WORKERS' COMPENSATION
Sec. 908. Compensation for disability
Compensation for disability shall be paid to the employee as
follows:
(a) Permanent total disability: In case of total disability adjudged
to be permanent 66\2/3\ per centum of the average weekly wages shall be
paid to the employee during the continuance of such total disability.
Loss of both hands, or both arms, or both feet, or both legs, or both
eyes, or of any two thereof shall, in the absence of conclusive proof to
the contrary, constitute permanent total disability. In all other cases
permanent total disability shall be determined in accordance with the
facts.
(b) Temporary total disability: In case of disability total in
character but temporary in quality 66\2/3\ per centum of the average
weekly wages shall be paid to the employee during the continuance
thereof.
(c) Permanent partial disability: In case of disability partial in
character but permanent in quality the compensation shall be 66\2/3\ per
centum of the average weekly wages, which shall be in addition to
compensation for temporary total disability or temporary partial
disability paid in accordance with subsection (b) or subsection (e) of
this section, respectively, and shall be paid to the employee, as
follows:
(1) Arm lost, three hundred and twelve weeks' compensation.
(2) Leg lost, two hundred and eighty-eight weeks' compensation.
(3) Hand lost, two hundred and forty-four weeks' compensation.
(4) Foot lost, two hundred and five weeks' compensation.
(5) Eye lost, one hundred and sixty weeks' compensation.
(6) Thumb lost, seventy-five weeks' compensation.
(7) First finger lost, forty-six weeks' compensation.
(8) Great toe lost, thirty-eight weeks' compensation.
(9) Second finger lost, thirty weeks' compensation.
(10) Third finger lost, twenty-five weeks' compensation.
(11) Toe other than great toe lost, sixteen weeks' compensation.
(12) Fourth finger lost, fifteen weeks' compensation.
(13) Loss of hearing:
(A) Compensation for loss of hearing in one ear, fifty-two
weeks.
(B) Compensation for loss of hearing in both ears, two-
hundred weeks.
(C) An audiogram shall be presumptive evidence of the amount
of hearing loss sustained as of the date thereof, only if (i)
such audiogram was administered by a licensed or certified
audiologist or a physician who is certified in otolaryngology,
(ii) such audiogram, with the report thereon, was provided to
the employee at the time it was administered, and (iii) no
contrary audiogram made at that time is produced.
(D) The time for filing a notice of injury, under section
912 of this title, or a claim for compensation, under section
913 of this title, shall not begin to run in connection with any
claim for loss of hearing under this section, until the employee
has received an audiogram, with the accompanying report thereon,
which indicates that the employee has suffered a loss of
hearing.
(E) Determinations of loss of hearing shall be made in
accordance with the guides for the evaluation of permanent
impairment as promulgated and modified from time to time by the
American Medical Association.
(14) Phalanges: Compensation for loss of more than one phalange
of a digit shall be the same as for loss of the entire digit.
Compensation for loss of the first phalange shall be one-half of the
compensation for loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as
for a loss of the arm or leg; but, if amputated between the elbow
and the wrist or the knee and the ankle, shall be the same as for
loss of a hand or foot.
(16) Binocular vision or per centum of vision: Compensation for
loss of binocular vision or for 80 per centum or more of the vision
of an eye shall be the same as for loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits, or one or more phalanges of two or more digits, of a hand or
foot may be proportioned to the loss of use of the hand or foot
occasioned thereby, but shall not exceed the compensation for loss
of a hand or foot.
(18) Total loss of use: Compensation for permanent total loss of
use of a member shall be the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for
permanent partial loss or loss of use of a member may be for
proportionate loss or loss of use of the member.
(20) Disfigurement: Proper and equitable compensation not to
exceed $7,500 shall be awarded for serious disfigurement of the
face, head, or neck or of other normally exposed areas likely to
handicap the employee in securing or maintaining employment.
(21) Other cases: In all other cases in the class of disability,
the compensation shall be 66\2/3\ per centum of the difference
between the average weekly wages of the employee and the employee's
wage-earning capacity thereafter in the same employment or
otherwise, payable during the continuance of partial disability.
(22) In any case in which there shall be a loss of, or loss of
use of, more than one member or parts of more than one member set
forth in paragraphs (1) to (19) of this subsection, not amounting to
permanent total disability, the award of compensation shall be for
the loss of, or loss of use of, each such member or part thereof,
which awards shall run consecutively, except that where the injury
affects only two or more digits of the same hand or foot, paragraph
(17) of this subsection shall apply.
(23) Notwithstanding paragraphs (1) through (22), with respect
to a claim for permanent partial disability for which the average
weekly wages are determined under section 910(d)(2) of this title,
the compensation shall be 66\2/3\ per centum of such average weekly
wages multiplied by the percentage of permanent impairment, as
determined under the guides referred to in section 902(10) of this
title, payable during the continuance of such impairment.
(d)(1) If an employee who is receiving compensation for permanent
partial disability pursuant to subsection (c)(1)-(20) of this section
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, as follows:
(A) if the employee is survived only by a widow or widower, such
unpaid amount of the award shall be payable to such widow or
widower,
(B) if the employee is survived only by a child or children,
such unpaid amount of the award shall be paid to such child or
children in equal shares,
(C) if the employee is survived by a widow or widower and a
child or children, such unpaid amount of the award shall be payable
to such survivors in equal shares,
(D) if there be no widow or widower and no surviving child or
children, such unpaid amount of the award shall be paid to the
survivors specified in section 909(d) of this title (other than a
wife, husband, or child); and the amount to be paid each such
survivor shall be determined by multiplying such unpaid amount of
the award by the appropriate percentage specified in section 909(d)
of this title, but if the aggregate amount to which all such
survivors are entitled, as so determined, is less than such unpaid
amount of the award, the excess amount shall be divided among such
survivors pro rata according to the amount otherwise payable to each
under this subparagraph.
(2) Notwithstanding any other limitation in section 909 of this
title, the total amount of any award for permanent partial disability
pursuant to subsection (c)(1)-(20) of this section unpaid at time of
death shall be payable in full in the appropriate distribution.
(3) An award for disability may be made after the death of the
injured employee. Except where compensation is payable under subsection
(c)(21) of this section if there be no survivors as prescribed in this
section, then the compensation payable under this subsection shall be
paid to the special fund established under section 944(a) of this title.
(e) Temporary partial disability: In case of temporary partial
disability resulting in decrease of earning capacity the compensation
shall be two-thirds of the difference between the injured employee's
average weekly wages before the injury and his wage-earning capacity
after the injury in the same or another employment, to be paid during
the continuance of such disability, but shall not be paid for a period
exceeding five years.
(f) Injury increasing disability:
(1) In any case in which an employee having an existing
permanent partial disability suffers injury, the employer shall
provide compensation for such disability as is found to be
attributable to that injury based upon the average weekly wages of
the employee at the time of the injury. If following an injury
falling within the provisions of subsection (c)(1)-(20) of this
section, the employee is totally and permanently disabled, and the
disability is found not to be due solely to that injury, the
employer shall provide compensation for the applicable prescribed
period of weeks provided for in that section for the subsequent
injury, or for one hundred and four weeks, whichever is the greater,
except that, in the case of an injury falling within the provisions
of subsection (c)(13) of this section, the employer shall provide
compensation for the lesser of such periods. In all other cases of
total permanent disability or of death, found not to be due solely
to that injury, of an employee having an existing permanent partial
disability, the employer shall provide in addition to compensation
under subsections (b) and (e) of this section, compensation payments
or death benefits for one hundred and four weeks only. If following
an injury falling within the provisions of subsection (c)(1)-(20) of
this section, the employee has a permanent partial disability and
the disability is found not to be due solely to that injury, and
such disability is materially and substantially greater than that
which would have resulted from the subsequent injury alone, the
employer shall provide compensation for the applicable period of
weeks provided for in that section for the subsequent injury, or for
one hundred and four weeks, whichever is the greater, except that,
in the case of an injury falling within the provisions of subsection
(c)(13) of this section, the employer shall provide compensation for
the lesser of such periods.
In all other cases in which the employee has a permanent partial
disability, found not to be due solely to that injury, and such
disability is materially and substantially greater than that which
would have resulted from the subsequent injury alone, the employer
shall provide in addition to compensation under subsections (b) and
(e) of this section, compensation for one hundred and four weeks
only.
(2)(A) After cessation of the payments for the period of weeks
provided for herein, the employee or his survivor entitled to
benefits shall be paid the remainder of the compensation that would
be due out of the special fund established in section 944 of this
title, except that the special fund shall not assume responsibility
with respect to such benefits (and such payments shall not be
subject to cessation) in the case of any employer who fails to
comply with section 932(a) of this title.
(B) After cessation of payments for the period of weeks provided
for in this subsection, the employer or carrier responsible for
payment of compensation shall remain a party to the claim, retain
access to all records relating to the claim, and in all other
respects retain all rights granted under this chapter prior to
cessation of such payments.
(3) Any request, filed after September 28, 1984, for
apportionment of liability to the special fund established under
section 944 of this title for the payment of compensation benefits,
and a statement of the grounds therefore, shall be presented to the
deputy commissioner prior to the consideration of the claim by the
deputy commissioner. Failure to present such request prior to such
consideration shall be an absolute defense to the special fund's
liability for the payment of any benefits in connection with such
claim, unless the employer could not have reasonably anticipated the
liability of the special fund prior to the issuance of a
compensation order.
(g) Maintenance for employees undergoing vocational rehabilitation:
An employee who as a result of injury is or may be expected to be
totally or partially incapacitated for a remunerative occupation and
who, under the direction of the Secretary as provided by section 939(c)
of this title, is being rendered fit to engage in a remunerative
occupation, shall receive additional compensation necessary for his
maintenance, but such additional compensation shall not exceed $25 a
week. The expense shall be paid out of the special fund established in
section 944 of this title.
(h) The wage-earning capacity of an injured employee in cases of
partial disability under subsection (c)(21) of this section or under
subsection (e) of this section shall be determined by his actual
earnings if such actual earnings fairly and reasonably represent his
wage-earning capacity: Provided, however, That if the employee has no
actual earnings or his actual earnings do not fairly and reasonably
represent his wage-earning capacity, the deputy commissioner may, in the
interest of justice, fix such wage-earning capacity as shall be
reasonable, having due regard to the nature of his injury, the degree of
physical impairment, his usual employment, and any other factors or
circumstances in the case which may affect his capacity to earn wages in
his disabled condition, including the effect of disability as it may
naturally extend into the future.
(i)(1) Whenever the parties to any claim for compensation under this
chapter, including survivors benefits, agree to a settlement, the deputy
commissioner or administrative law judge shall approve the settlement
within thirty days unless it is found to be inadequate or procured by
duress. Such settlement may include future medical benefits if the
parties so agree. No liability of any employer, carrier, or both for
medical, disability, or death benefits shall be discharged unless the
application for settlement is approved by the deputy commissioner or
administrative law judge. If the parties to the settlement are
represented by counsel, then agreements shall be deemed approved unless
specifically disapproved within thirty days after submission for
approval.
(2) If the deputy commissioner disapproves an application for
settlement under paragraph (1), the deputy commissioner shall issue a
written statement within thirty days containing the reasons for
disapproval. Any party to the settlement may request a hearing before an
administrative law judge in the manner prescribed by this chapter.
Following such hearing, the administrative law judge shall enter an
order approving or rejecting the settlement.
(3) A settlement approved under this section shall discharge the
liability of the employer or carrier, or both. Settlements may be agreed
upon at any stage of the proceeding including after entry of a final
compensation order.
(4) The special fund shall not be liable for reimbursement of any
sums paid or payable to an employee or any beneficiary under such
settlement, or otherwise voluntarily paid prior to such settlement by
the employer or carrier, or both.
(j)(1) The employer may inform a disabled employee of his obligation
to report to the employer not less than semiannually any earnings from
employment or self-employment, on such forms as the Secretary shall
specify in regulations.
(2) An employee who--
(A) fails to report the employee's earnings under paragraph (1)
when requested, or
(B) knowingly and willfully omits or understates any part of
such earnings,
and who is determined by the deputy commissioner to have violated clause
(A) or (B) of this paragraph, forfeits his right to compensation with
respect to any period during which the employee was required to file
such report.
(3) Compensation forfeited under this subsection, if already paid,
shall be recovered by a deduction from the compensation payable to the
employee in any amount and on such schedule as determined by the deputy
commissioner.
(Mar. 4, 1927, ch. 509, Sec. 8, 44 Stat. 1427; May 26, 1934, ch. 354,
Secs. 2, 3, 48 Stat. 806; June 25, 1938, ch. 685, Secs. 4, 5, 52 Stat.
1165; June 24, 1948, ch. 623, Sec. 2, 62 Stat. 602; July 26, 1956, ch.
735, Secs. 2, 3, 70 Stat. 655; Pub. L. 92-576, Secs. 5(c), 7, 9, 20(a),
Oct. 27, 1972, 86 Stat. 1253, 1255, 1257, 1264; Pub. L. 98-426, Secs. 8,
27(a)(2), Sept. 28, 1984, 98 Stat. 1644, 1654.)
Amendments
1984--Subsec. (c)(13). Pub. L. 98-426, Sec. 8(a), redesignated
compensation for loss of hearing in one ear as subpar. (A) and for loss
in both ears as subpar. (B) and added subpars. (C), (D), and (E)
respecting establishing proof of hearing loss.
Subsec. (c)(20). Pub. L. 98-426, Sec. 8(b), substituted ``$7,500''
for ``$3,500''.
Subsec. (c)(21). Pub. L. 98-426, Sec. 8(c)(1), substituted ``the
average weekly wages of the employee and the employee's'' for ``his
average weekly wages and his''; and struck out ``, but subject to
reconsideration of the degree of such impairment by the deputy
commissioner on his own motion or upon application of any party in
interest''.
Subsec. (c)(23). Pub. L. 98-426, Sec. 8(c)(2), added par. (23).
Subsec. (d)(3), (4). Pub. L. 98-426, Sec. 8(d), redesignated par.
(4) as par. (3). Former par. (3), which provided that if an employee who
was receiving compensation for permanent partial disability pursuant to
subsection (c)(21) of this section died from causes other than the
injury, his survivors would receive death benefits as provided in
section 909(b)-(g) of this title, except that the percentage figures
therein would be applied to the weekly compensation payable to the
employee at the time of his death multiplied by 1.5, rather than to his
average weekly wages, was struck out.
Subsec. (f)(1). Pub. L. 98-426, Sec. 8(e)(1), inserted at end of
second and fourth sentences ``, except that, in the case of an injury
falling within the provisions of section 908(c)(3) of this title, the
employer shall provide compensation for the lesser of such periods''.
Subsec. (f)(2)(A). Pub. L. 98-426, Sec. 8(e)(2), designated existing
provisions of par. (2) as subpar. (A).
Pub. L. 98-426, Sec. 8(e)(3), inserted ``, except that the special
fund shall not assume responsibility with respect to such benefits (and
such payments shall not be subject to cessation) in the case of any
employer who fails to comply with section 932(a) of this title''.
Subsec. (f)(2)(B). Pub. L. 98-426, Sec. 8(e)(4), added subpar. (B).
Subsec. (f)(3). Pub. L. 98-426, Sec. 8(e)(5), added par. (3).
Subsec. (g). Pub. L. 98-426, Sec. 27(a)(2), substituted
``Secretary'' for ``commission''. See Transfer of Functions note set out
under section 902 of this title.
Subsec. (i)(1) to (3). Pub. L. 98-426, Sec. 8(f), substituted pars.
(1) to (3) respecting procedures for approval of a settlement by the
deputy commissioner or administrative law judge for former pars. (A) and
(B) respecting settlements approved by the deputy commissioner or
Secretary.
Subsec. (i)(4). Pub. L. 98-426, Sec. 8(g), added par. (4).
Subsec. (j). Pub. L. 98-426, Sec. 8(h), added subsec. (j).
1972--Subsec. (c)(20). Pub. L. 92-576, Sec. 7, included compensation
for serious disfigurement of the neck and other normally exposed areas
likely to handicap the employee in securing or maintaining employment.
Subsec. (d). Pub. L. 92-576, Sec. 5(c), in revising provisions
substituted par. (1), subpars. (A) to (D) and pars. (2) to (4) for
former provisions having an introductory par. and pars. (1) to (5),
making the following changes:
Par. (1) incorporated former introductory par. providing for
payments to survivors rather than for payments ``for the benefit of
the persons after''; subpar. (A) incorporated former par. (1)
providing for a widower rather than dependent husband;
Subpar. (B) incorporated former par. (4), striking out reference
to children under eighteen years, and providing for payment in equal
shares;
Subpar. (C) incorporated former par. (2) for payment in equal
shares rather than one half to surviving wife or dependent husband
and one half to surviving child or children, substituting reference
to ``widow or widower'' for ``surviving wife or dependent husband'',
and striking out reference to ``surviving'' before ``child or
children'';
Subpar. (D) added;
Pars. (2) and (3) added and former par. (3) struck out, such
par. making it discretionary with the deputy commissioner to appoint
a guardian for receipt of minor child's compensation; and
Par. (4) incorporated former par. (5), inserting provision for
payment of compensation to the special fund except where payable
under subsec. (c)(21) of this section.
Subsec. (f)(1). Pub. L. 92-576, Sec. 9(a) added par. (1) and struck
out former par. (1) which provided that if an employee received an
injury which of itself would only cause permanent partial disability but
which, combined with a previous disability did in fact cause permanent
total disability, the employer should provide compensation only for the
disability caused by the subsequent injury, and proviso of such former
par. (1) providing that in addition to compensation for the permanent
partial disability, and after the cessation of the payments for the
prescribed period of weeks, the employee should be paid the remainder of
the compensation that would be due for permanent total disability and
provision that additional compensation should be paid out of the special
fund established in section 944 of this title. See par. (2) of this
subsection.
Subsec. (f)(2). Pub. L. 92-576, Sec. 9, incorporated proviso of
first sentence and second sentence of former par. (1) in provisions
designated as par. (2) and struck out former par. (2) which stated that
in all other cases in which, following a previous disability, an
employee received an injury which was not covered by former par. (1),
the employer should provide compensation only for the disability caused
by the subsequent injury, and in determining compensation for the
subsequent injury or for death resulting therefrom, the average weekly
wages should be such sum as would reasonably represent the earning
capacity of the employee at the time of the subsequent injury. See par.
(1) of this subsection.
Subsec. (i). Pub. L. 92-576, Sec. 20(a), designated existing
provisions as subpar. (A), substituted ``Whenever'' for ``In cases under
subsection (c)(21) and subsection (e) of this section, whenever'', ``he
may approve'' for ``he may, with the approval of the Secretary,
approve'', and ``deputy commissioner'' for ``Secretary'', and struck out
after ``Provided,'' where first appearing ``That the sum so agreed upon
shall be payable in installments as provided in section 914(b) of this
title, which installments shall be subject to commutation under section
914(j) of this title; And provided further,'' and added subpar. (B).
1956--Subsec. (c). Act July 26, 1956, Sec. 2, increased periods in
schedule of compensation as follows:
Par. (1) Arm lost, increased from two hundred and eighty to
three hundred and twelve weeks' compensation.
Par. (2) Leg lost, increased from two hundred and forty-eight to
two hundred and eighty-eight weeks' compensation.
Par. (3) Hand lost, increased from two hundred and twelve to two
hundred and forty-four weeks' compensation.
Par. (4) Foot lost, increased from one hundred and seventy-three
weeks to two hundred and five weeks' compensation.
Par. (5) Eye lost, increased from one hundred and forty to one
hundred and sixty weeks' compensation.
Par. (6) Thumb lost, increased from fifty-one to seventy-five
weeks' compensation.
Par. (7) First finger lost, increased from twenty-eight to
forty-six weeks' compensation.
Par. (8) Great toe lost, increased from twenty-six to thirty-
eight weeks' compensation.
Par. (9) Second finger lost, increased from eighteen to thirty
weeks' compensation.
Par. (10) Third finger lost, increased from seventeen to twenty-
five weeks' compensation.
Par. (11) Toe other than great toe lost, increased from eight to
sixteen weeks' compensation.
Par. (12) Fourth finger lost, increased from seven to fifteen
weeks' compensation.
Subsec. (g). Act July 26, 1956, Sec. 3, substituted ``$25'' for
``$10''.
1948--Subsec. (c). Act June 24, 1948, inserted in opening par. ``or
temporary partial disability'', ``or subsection (e)'', and
``respectively''.
1938--Subsec. (c). Act June 25, 1938, Sec. 4, in par. (22), inserted
exception clause.
Subsecs. (h), (i). Act June 25, 1938, Sec. 5 added subsecs. (h) and
(i).
1934--Subsec. (c). Act May 26, 1934, Sec. 2, inserted in opening
par. ``which shall be in addition to compensation for temporary total
disability paid in accordance with subsection (b) of this section'' and
decreased periods in schedule of compensation of pars. (1) to (12).
Subsec. (c). Act May 26, 1934, Sec. 3, substituted new par. (22),
providing that ``In any case in which there shall be a loss of, or loss
of use of, more than one member or parts of more than one member set
forth in paragraphs (1) to (19) of this subdivision, not amounting to
permanent total disability, the award of compensation shall be for the
loss of, or loss of use of, each such member or part thereof, which
awards shall run consecutively.'', for former provisions, providing that
``In case of temporary total disability and permanent partial
disability, both resulting from the same injury, if the temporary total
disability continues for a longer period than the number of weeks set
forth in the following schedule, the period of temporary total
disability in excess of such number of weeks shall be added to the
compensation period provided in this subdivision: Arm, thirty-two weeks;
leg, forty weeks; hand, thirty-two weeks; foot, thirty-two weeks; eye,
twenty weeks; thumb, twenty-four weeks; first finger, eighteen weeks;
great toe, twelve weeks; second finger, twelve weeks; third finger,
eight weeks; fourth finger, eight weeks; toe other than great toe, eight
weeks.
``In any case resulting in loss or partial loss of arm, leg, hand,
foot, eye, thumb, finger, or toe, where the temporary total disability
does not extend beyond the periods above mentioned for such injury,
compensation shall be limited to the schedule contained in this
subdivision.''
Effective Date of 1984 Amendment
Amendment by section 8(a), (c)(2), (e)(1), (2) of Pub. L. 98-426
effective Sept. 28, 1984, and applicable both with respect to claims
filed after such date and to claims pending on such date, amendment by
section 8(b) of Pub. L. 98-426 applicable with respect to any injury
after Sept. 28, 1984, amendment by sections 8(c)(1), (e)(4), (5), (g),
and 27(a)(2) of Pub. L. 98-426 effective Sept. 28, 1984, amendment by
section 8(d) of Pub. L. 98-426 applicable with respect to any death
after Sept. 28, 1984, amendment by section 8(f) of Pub. L. 98-426
effective 90 days after Sept. 28, 1984, and applicable both with respect
to claims filed after such 90th day and to claims pending on such 90th
day, and amendment by section 8(h) of Pub. L. 98-426 effective 90 days
after Sept. 28, 1984, see section 28(a)-(e) of Pub. L. 98-426, set out
as a note under section 901 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92-576 effective 30 days after Oct. 27, 1972,
see section 22 of Pub. L. 92-576, set out as a note under section 902 of
this title.
Effective Date of 1956 Amendment
Amendment by act July 26, 1956, applicable only with respect to
injuries and death occurring on or after July 26, 1956, see section 9 of
act July 26, 1956, set out as a note under section 906 of this title.
Effective Date of 1948 Amendment
Amendment by act June 24, 1948, applicable to death or injuries
occurring after June 24, 1948, see section 6 of act June 24, 1948, set
out as a note under section 906 of this title.
Section Referred to in Other Sections
This section is referred to in sections 904, 922, 944 of this title;
title 30 section 932; title 42 sections 1652, 1702.
