ALJ Finds Post-Promotion Wages Controlling for DBA Claimant

A recent decision from the Office of Administrative Law Judges (ALJ) in Wells v. Mantech Corp., 2017-LDA-00239 (December 4, 2018) addressed the proper calculation of average weekly wage (AWW) pursuant to Section 10(c) of the Defense Base Act (DBA) as an extension of the Longshore & Harbor Workers’ Compensation Act (LHWCA).

Wells v. Mantech Corp. – Background

The Claimant sustained an injury in March 2016. However, 24 weeks prior to Claimant’s injury, he received a promotion and a substantial raise. Claimant argued that his AWW for purposes of calculating future benefits and loss of wage earning capacity should be his post-promotion wages. Employer, on the other hand, argued that Claimant’s AWW should look to the prior 52 weeks of actual earnings, i.e., the 28 weeks of pre-promotion wages and the 24 weeks of post-promotion wages.

Wells v. Mantech Corp. – The Decision

In analyzing AWW, the ALJ first determined that because Claimant was a seven-day worker, Sections 10(a) and 10(b) were not appropriate. In determining that AWW was appropriately calculated under Section 10(c), the ALJ emphasized that 10(c) specifically contemplated a loss of earnings as to Claimant’s future and that actual past wages were not necessarily the figure controlling the analysis. The ALJ held that only Claimant’s post-promotion wages should be considered. In calculating the AWW under 10(c), the ALJ extrapolated the 24 weeks of post-promotion wages over 52 weeks and divided the figure by 52 to derive the proper AWW.