BRB Affirms Average Weekly Wage Finding in DBA Claim Defended by MBLB

The Benefits Review Board (BRB) recently affirmed the Administrative Law Judge’s (ALJ) finding of average weekly wage in a DBA claim defended by Mouledoux, Bland, Legrand & Brackett (MBLB).

Saheed v. Valbin Corp., BRB No. 20-0393 (March 30, 2021)

Claimant began working for Employer as an Arabic linguist state-side in December 2014. In June 2015, Claimant was deployed to Afghanistan for a six month contract. Towards the end of that contract, in December 2015, Claimant sustained an injury to his shoulder taking on and off body armor. This injury occurred towards the end of Claimant’s six month contract, and Claimant was physically capable of completing his contract through the end of December 2015. He returned to the United States in December 2015 where he began working for Employer state-side. Claimant was medically cleared for re-deployment in April 2016, but instead, he began formal medical care in July 2016.

At issue at formal hearing was calculation of Claimant’s average weekly wage. Claimant argued at formal hearing that his average weekly wage was based on a written contract whereby Claimant was to be paid $250,000.00 annually. At trial, Claimant failed to produce any contract or any corroborative evidence of this contractual wage amount. Further, Claimant did not produce any evidence or testimony that he intended to return overseas and was unable due to his injury.

Employer argued that Claimant’s average weekly wage should be based on his actual wages in the 52 weeks prior to injury, i.e., a blended rate of his stateside wages and his overseas wages during his six month contract. The ALJ agreed and found in favor of Employer on the issue of AWW.

BRB Affirmed ALJ’s Finding

The BRB affirmed the ALJ’s finding, holding that Jasmine v. Can-Am Protection Group, Inc., 46 BRBS 17 (2012) applied. In the Jasmine case, the BRB affirmed the administrative law judge’s calculation of the claimant’s average weekly wage under Section 10(c) based on a blend of his stateside earnings and his overseas contract rate of pay. In this case, the BRB held that the ALJ rationally found that Claimant was working overseas pursuant to a six month contract, and Claimant’s history of non-continuous overseas employment indicated the lack of long-term commitment to such employment. The BRB affirmed the ALJ’s finding of average weekly wage.

Saheed v. Valbin Corp., BRB No. 20-0393 (March 30, 2021)