§ 910. — Determination of pay.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC910]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 18--LONGSHORE AND HARBOR WORKERS' COMPENSATION
Sec. 910. Determination of pay
Except as otherwise provided in this chapter, the average weekly
wage of the injured employee at the time of the injury shall be taken as
the basis upon which to compute compensation and shall be determined as
follows:
(a) If the injured employee shall have worked in the employment in
which he was working at the time of the injury, whether for the same or
another employer, during substantially the whole of the year immediately
preceding his injury, his average annual earnings shall consist of three
hundred times the average daily wage or salary for a six-day worker and
two hundred and sixty times the average daily wage or salary for a five-
day worker, which he shall have earned in such employment during the
days when so employed.
(b) If the injured employee shall not have worked in such employment
during substantially the whole of such year, his average annual
earnings, if a six-day worker, shall consist of three hundred times the
average daily wage or salary, and, if a five-day worker, two hundred and
sixty times the average daily wage or salary, which an employee of the
same class working substantially the whole of such immediately preceding
year in the same or in similar employment in the same or a neighboring
place shall have earned in such employment during the days when so
employed.
(c) If either of the foregoing methods of arriving at the average
annual earnings of the injured employee cannot reasonably and fairly be
applied, such average annual earnings shall be such sum as, having
regard to the previous earnings of the injured employee in the
employment in which he was working at the time of the injury, and of
other employees of the same or most similar class working in the same or
most similar employment in the same or neighboring locality, or other
employment of such employee, including the reasonable value of the
services of the employee if engaged in self-employment, shall reasonably
represent the annual earning capacity of the injured employee.
(d)(1) The average weekly wages of an employee shall be one fifty-
second part of his average annual earnings.
(2) Notwithstanding paragraph (1), with respect to any claim based
on a death or disability due to an occupational disease for which the
time of injury (as determined under subsection (i) of this section)
occurs--
(A) within the first year after the employee has retired, the
average weekly wages shall be one fifty-second part of his average
annual earnings during the 52-week period preceding retirement; or
(B) more than one year after the employee has retired, the
average weekly wage shall be deemed to be the national average
weekly wage (as determined by the Secretary pursuant to section
906(b) of this title) applicable at the time of the injury.
(e) If it be established that the injured employee was a minor when
injured, and that under normal conditions his wages should be expected
to increase during the period of disability the fact may be considered
in arriving at his average weekly wages.
(f) Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising out of
injuries subject to this chapter shall be increased by the lesser of--
(1) a percentage equal to the percentage (if any) by which the
applicable national weekly wage for the period beginning on such
October 1, as determined under section 906(b) of this title, exceeds
the applicable national average weekly wage, as so determined, for
the period beginning with the preceding October 1; or
(2) 5 per centum.
(g) The weekly compensation after adjustment under subsection (f) of
this section shall be fixed at the nearest dollar. No adjustment of less
than $1 shall be made, but in no event shall compensation or death
benefits be reduced.
(h)(1) Not later than ninety days after October 27, 1972, the
compensation to which an employee or his survivor is entitled due to
total permanent disability or death which commenced or occurred prior to
October 27, 1972, shall be adjusted. The amount of such adjustment shall
be determined in accordance with regulations of the Secretary by
designating as the employee's average weekly wage the applicable
national average weekly wage determined under section 906(b) of this
title and (A) computing the compensation to which such employee or
survivor would be entitled if the disabling injury or death had occurred
on the day following October 27, 1972, and (B) subtracting therefrom the
compensation to which such employee or survivor was entitled on October
27, 1972; except that no such employee or survivor shall receive total
compensation amounting to less than that to which he was entitled on
October 27, 1972. Notwithstanding the foregoing sentence, where such an
employee or his survivor was awarded compensation as the result of death
or permanent total disability at less than the maximum rate that was
provided in this chapter at the time of the injury which resulted in the
death or disability, then his average weekly wage shall be determined by
increasing his average weekly wage at the time of such injury by the
percentage which the applicable national average weekly wage has
increased between the year in which the injury occurred and the first
day of the first month following October 27, 1972. Where such injury
occurred prior to 1947, the Secretary shall determine, on the basis of
such economic data as he deems relevant, the amount by which the
employee's average weekly wage shall be increased for the pre-1947
period.
(2) Fifty per centum of any additional compensation or death benefit
paid as a result of the adjustment required by paragraphs (1) and (3) of
this subsection shall be paid out of the special fund established under
section 944 of this title, and 50 per centum shall be paid from
appropriations.
(3) For the purposes of subsections (f) and (g) of this section an
injury which resulted in permanent total disability or death which
occurred prior to October 27, 1972, shall be considered to have occurred
on the day following such date.
(i) For purposes of this section with respect to a claim for
compensation for death or disability due to an occupational disease
which does not immediately result in death or disability, the time of
injury shall be deemed to be the date on which the employee or claimant
becomes aware, or in the exercise of reasonable diligence or by reason
of medical advice should have been aware, of the relationship between
the employment, the disease, and the death or disability.
(Mar. 4, 1927, ch. 509, Sec. 10, 44 Stat. 1431; June 24, 1948, ch. 623,
Sec. 4, 62 Stat. 603; Pub. L. 92-576, Sec. 11, Oct. 27, 1972, 86 Stat.
1258; Pub. L. 98-426, Sec. 10, Sept. 28, 1984, 98 Stat. 1647.)
Amendments
1984--Subsec. (d). Pub. L. 98-426, Sec. 10(a)(1), designated
existing provisions as par. (1) and added par. (2).
Subsec. (f). Pub. L. 98-426, Sec. 10(b), substituted ``subject to
this chapter'' for ``sustained after October 27, 1972,'' and inserted
``the lesser of--'' after ``by'' in introductory language, designated
balance of existing provisions as par. (1), substituted ``; or'' for a
period at end of par. (1), and added par. (2).
Subsec. (i). Pub. L. 98-426, Sec. 10(a)(2), added subsec. (i).
1972--Subsecs. (f) to (h). Pub. L. 92-576 added subsecs. (f) to (h).
1948--Subsec. (a). Act June 24, 1948, included a factor (a 260
multiplier) so as to make this subsec. useful in 5-day week employments.
Subsec. (b). Act June 24, 1948, included the new factor (a 260
multiplier) to make this subsec. consistent with subsec. (a).
Subsec. (c). Act June 24, 1948, permitted the inclusion of all
earnings of the injured workman in determining the employee's annual
earning capacity.
Effective Date of 1984 Amendment
Amendment by section 10(a) of Pub. L. 98-426 effective Sept. 28,
1984, and applicable both with respect to claims filed after such date
and to claims pending on such date, and amendment by section 10(b) of
Pub. L. 98-426 effective Sept. 28, 1984, see section 28(a), (e)(1) of
Pub. L. 98-426, set out as a note under section 901 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92-576 effective 30 days after Oct. 27, 1972,
see section 22 of Pub. L. 92-576, set out as a note under section 902 of
this title.
Effective Date of 1948 Amendment
Amendment by act June 24, 1948, applicable to death or injuries
occurring after June 24, 1948, see section 6 of act June 24, 1948, set
out as a note under section 906 of this title.
Section Referred to in Other Sections
This section is referred to in sections 902, 906, 908, 909, 944 of
this title; title 30 section 932; title 42 section 1702.
