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Calculating Average Weekly Wage Under the Defense Base Act, or AWW under DBA

Ammunition offloadIt is vitally important to calculate the average weekly wage (AWW) following an on the job injury in a Defense Base Act (DBA) claim.  It is of utmost importance that the AWW be calculated correctly, because the AWW controls how much money you will receive from the insurance carrier following an accident. Moreover, the AWW can significantly impact the value of any settlement received in a DBA claim.

Section 10 of the Longshore and Harbor Workers’ Compensation Act provides three methods of calculating the AWW.  Section 10(a) deals with five day a week workers, and Section 10(b) deals with six day a week workers. As most overseas workers are logging in seven day a week work schedules, we will not address those two sections here. However, the Act provides a third method of calculating the AWW, found in Section 10(c):

“If either [subsection 10(a) or 10(b)] cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and the employment in which he was working at the time of his injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.”

What exactly does this mean? It basically allows the Court to take an extended look at your past earnings, including earnings of other similar employees, when trying to calculate your AWW.

On February 27,2014, Judge Romero handed down his decision in the case of Lopez v. Dyncorp, 2012-LDA-613. This claim involved numerous issues, including an AWW calculation issue.

Lopez, the injured Claimant, had worked in the United States in the same type of job as the one he took with Dyncorp: a certified crane rigger. Lopez was injured 30.14 weeks after beginning work for Dyncorp, on November 5.  During the time prior to his injury while working for Dyncorp, Lopez’s average weekly was $1,797.73.  Judge Romero decided to use a “blended” calculation method, so he calculated the average annual wage for the four years before the accident, ($45,155.24, giving an average weekly wage of $868.37,) then added the current average weekly wage with Dyncorp of $1797.73, and divided by two.  He found the average week wage to equal $1, 333.05.

What this shows is that Judge’s had considerable leeway and flexibility when it comes to calculating the AWW. Essentially, they can use any method that reasonable represents the Claimant’s annual earning capacity. However, if you read the decision carefully, Judge Romero failed to account for the increase in the National Average Weekly Wage, which would have increased the AWW, and thus would have increased the benefits Lopez was entitled to. This could have easily amounted to thousands of dollars in additional benefits for Lopez.

It is extremely important you obtain competent counsel to assist you in your case. If you have been injured in a claim covered under the DBA or Longshore Act, schedule a free consultation with Attorneys Jo Ann Hoffman & Vance B. Moore, P.A.  With over 75 years of combined experience, Attorneys Hoffman and Moore will work to get you the benefits you need – and deserve.

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