[B]Case Name: [/B]David L. Trachsel v. Rogers Terminal & Shipping Corporation, and Director, Office of Worker’s Compensation Programs
[B]Date Decided: [/B]December 30, 2009
[B]Court: [/B]U.S. Court of Appeals, Ninth Circuit
[B]Judge: [/B]Judge Whyte
[B]Citation: [/B]2009 WL 5125785 (C.A.9)[B]Background:
[/B]Plaintiff, David L. Trachsel, brought this action to review an order by the Department of Labor Benefits Review Board, BRB, affirming an Administrative Law Judge’s compensation award under the Longshore Harbor Workers’ Compensation Act, LHWCA.
Traschel was working as a longshoreman for defendant, Rogers Terminal & Shipping Corporation, when he slipped, fell backwards, and injured his shoulder while loading a ship. Trachsel had surgery and his arm was in a sling for six weeks before his doctor gave him a full release to return to work.
The year before the day of his injury Trachsel earned roughly $63,000 while appearing to work 223 days, was paid for 14 holidays, and worked four holidays, leaving 10 unworked holidays.
The Administrative Law Judge concluded that holidays that Trachsel was paid but did not work should count as “work days” since Trachsel received wages for an actual day off work. On that basis, the ALJ calculated that Trachsel’s weekly wage was $1,365.75.
Both parties appealed to the BRB and the BRB affirmed the ALJ’s conclusion that unworked paid holidays should be included in the number of days employed under §910(a) of the LHWCA.
Trachsel petitioned this Court for review.
[/B]Should paid, unworked holidays be included in the number of days employed under §910(a) of the LHWCA?
[/B]Trachsel argued that only days when the employee actually works should constitute days employed when calculating the weekly average formula under 910(a).
Specifically, Trachsel contended that this Court’s decision in [I]Matulic v. Director, [/I]154 F.3d 1052, resolved this issue in his favor. Trachsel argued that because the court emphasized the phrase “actually worked” in computing disability benefits that it means that only days [I]actually worked [/I]would count.
However, this Court in [I]Matulic[/I], resolved when 910(a) should be applied and not what days constituted days when so employed. Ultimately, the BRB relied upon a *Fifth Circuit case, *[I]Wooley[/I], 204 F.3d 616. That Court concluded that the ALJ should be charged with making findings as to whether particular vacation payments constitute a “day worked” or as “additional compensation to be added to the worker’s annual wage”.
Ultimately the Court in [I]Wooley[/I] determined that vacation days, paid but not worked, counted as a “day worked” in calculating disability benefits. Additionally, this Court was satisfied this would apply to Holidays as well as vacation days.
This Court affirmed the BRB’s ruling that holidays, not worked but paid, constituted a “day worked” in calculating disability benefits under 910(a).
[B]Under the LHWCA, a disabled worker injured in the course of employment is compensated depending on the extent of his disability and his average weekly wage at the time of injury. [/B]
[B]Section 910 sets forth (3) methods for calculating an employee’s “average annual earnings” which is then divided by 52 to determine average weekly wage.[/B]
[B]Under 910(a), an ALJ must first determine the total income earned by the claimant in the 52 weeks before the injury, then divide that number by the number of [I]days when so employed[/I]. [/B]
[B]If the ALJ had ruled that paid, but not worked, holidays were not a day so employed, then Trachsel’s weekly average would have risen. [/B]
[B]Steve Gordon [/B]