Average Weekly Wage: Section 10(a) Inapplicable to Hitch Worker

by Matthew H. Ammerman on February 7th, 2011

The Longshore & Harbor Workers' Compensation Act provides three methods to use to calculate an injured worker's Average Weekly Wage (AWW). In short, these are:

(1) Section 10(a): the worker's average daily wage multiplied by either 260 or 300;
(2) Section 10(b): the same method as Section10(a) but using the wages of a comparable worker; and,
(3) Section 10(c): a catch-all provision used if Sections 10(a) or (b) cannot be fairly applied. 33 U.S.C. Sec. 910(a)-(c).

Section 10(a) is the default method to be used when a five or six-day worker has been employed for "substantially the whole of the year." Gulf Best Elec., Inc. v. Methe, 396 F.3d 601, 606 (5th Cir. 2004). But, the vast majority of offshore oilpatch workers are not regular five or six-day workers. Instead, they work "hitches," e.g., 14 days on and 7 days off. Sections 10(a) and 10(b) cannot be fairly applied if the employee is not a regular five or six-day worker.

On January 31, 2011, the Fifth Circuit in a short, unpublished opinion affirmed the Benefits Review Board's opinion that Section 10(a) did not apply to hitch worker Kevin McClendon. Tetra Techs., Inc. v. Dir. Office of Worker's Comp. Programs, 2011 U.S. App. LEXIS 2018 (5th Cir. Jan. 31, 2011). McClendon was a rigger who worked a 14-days on, 7-days off hitch. The ALJ applied Section 10(c) and estimated McClendon's AWW by prorating McClendon's wages during the year prior to his work injury. The Board held Section 10(a) was inapplicable and Fifth Circuit affirmed in its per curiam, unpublished opinion.

Posted in LHWCA: Average Weekly Wage; Section 10(a)    Tagged with Average weekly wage, Section 10(a), Section 10(c)



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