BRB: Error to Adjust Comp Rate Based on Planned Departure from Afghanistan

Claimant, a Defense Base Act (“DBA”) employee working as a security guard in Afghanistan, injured his back in the course of his work-related training.  Although Claimant was able to finish his contract, he filed a claim for benefits after he returned to the United States.  After a formal hearing, the Administrative Law Judge (“ALJ”) determined that Claimant’s average weekly wage was $2,897.95, with a corresponding compensation rate of $1,114.44, which is the maximum applicable compensation rate.  See 33 U.S.C. § 906.  Further, pursuant to the parties stipulations, the ALJ found that Claimant began post-injury alternate employment at a rate consistent with rates he earned in the United States prior to his DBA employment.  Finally, the ALJ determined that Claimant was only entitled to a nominal award as of September 1, 2011, because Claimant testified that it was his plan to end his DBA employment by August of 2011.

On appeal, the Benefits Review Board (“BRB”) modified the ALJ’s award.  While the ALJ arrived at the proper average weekly wage, the prospective award failed to comport with the plain language of Section 8(c)(21).  The statute does not authorize the ALJ to award a lesser amount, unless or until modification is sought pursuant to 33 U.S.C. § 922.  Further, “the date claimant planned to leave his overseas work is not a factor in awarding benefits under the Act.”  The BRB rejected the idea of applying a “two-tiered award” because it is “premised on the occurrence of a presumed future event that does not take the claimant’s injured status into account.”  It was error to change a claimant’s compensation rate based upon his testimony regarding a planned departure from the war theater.  Further, it was inappropriate to issue a nominal award.  There is only one average weekly wage per injury.  By comparing Claimant’s pre-DBA employment wages with his post-DBA employment wages, the ALJ “effectively applied a second average weekly wage,” one for the date of injury and another for the Claimant’s loss of wage earning capacity.

Raymond v. Blackwater Sec. Consulting, LLC, Nos. 10-0454 and 10-0454A (Ben Rev. Bd. 2011).