Non-Combat Zone Wages Were Measure Of Earning Capacity During Worker's Break From War Zone Jobs
Reduced wages earned in non-combat zone were best measure of worker’s earning capacity where injury occurred during voluntary hiatus from hazardous war zone employment.
Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (June 20, 2011) (per curiam)
Michael Luttrell was injured while working as a security officer on a United States Army Atoll in the South Pacific. For the previous twelve years, Luttrell had worked overseas in various jobs involving security and police functions. At the time of his injury, however, he was on a temporary break from employment in hazardous areas.
In proceedings before an administrative law judge (ALJ) on Luttrell’s claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., the only issue was determining Luttrell’s average weekly wage for purposes of establishing the amount of his temporary total disability benefits.
The ALJ concluded that the proper rate of pay was the amount that Luttrell was earning under his employment contract at the time of his injury on the Atoll. The ALJ noted that Luttrell was injured while working under a one-year contract at a different type of job than his former employment and “under drastically different conditions, than he had done earlier, or than he might have done later.”
Luttrell appealed, arguing that the ALJ's computation did not accurately reflect his earning capacity. Luttrell assertethat he was actually offered post-injury employment in Bahrain at a much higher average weekly wage than the amount he earned at the time of his injury. The record below also indicated that he had earned over $82,000 per year during the 52 weeks preceding his work injury.
The Benefits Review Board (BRB) concluded that Luttrell’s average weekly wage was properly computed by the ALJ. Among other things, the ALJ’s average weekly wage finding was consistent with BRB opinions embracing the notion that a claimant’s higher wages for work in a combat zone are a proper framework for calculating average weekly wages under LHWCA § 910(c).
The purpose of LHWCA § 910(c) is to arrive at a sum that reasonably represents a claimant’s annual earning capacity at the time of his injury, the BRB observed. In this instance, the facts of Luttrell’s case were the “mirror image” of war zone cases. Unfortunately for Luttrell, this made it appropriate to determine his average weekly wage based on his lower-paying work overseas, which he took after voluntarily choosing to leave his higher-paying work in the Middle East.
The BRB therefore affirmed the ALJ’s finding that the wages Luttrell earned in the South Pacific, a non-combat zone, were the best measure of his earning capacity at the time of his injury.
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