Pascagoula Longshore Average Weekly Wage

The average weekly wage calculation is the foundation of every dollar a Pascagoula longshore worker receives under the LHWCA. Wage replacement is two-thirds of the average weekly wage. Permanent disability compensation is a percentage of weeks at two-thirds of the average weekly wage. Get the average weekly wage wrong — and the insurance carrier will get it wrong in their favor every time they can — and every benefit flowing from that number is wrong. The TV lawyer who has never tried a federal LHWCA case does not know how the Act defines average weekly wage or where the carrier manipulates the calculation. I know exactly where they do it and how to correct it.

How The LHWCA Defines Average Weekly Wage For Pascagoula Longshore Workers

The average weekly wage under 33 U.S.C. Section 910 is calculated using one of three methods depending on the worker’s employment pattern, and the Act requires using the method that most fairly represents the worker’s actual earning capacity.

For a worker who was employed substantially the whole year before the injury, the average weekly wage is the annual earnings divided by 52. For a worker employed for less than a year, or whose employment pattern was irregular, the Act allows calculation based on a similarly situated employee or on the daily wage rate multiplied by 300. The goal is to capture what the worker would have earned in a full year — not to artificially depress the wage base by using a period of lower earnings as the calculation window.

The carrier will choose the calculation period and the calculation method that produces the lowest average weekly wage they can support. That means using the fifty-two week period that includes any weeks where the worker was not working at full capacity — injury periods, unpaid leave, reduced hours, layoffs. It means excluding overtime earnings as irregular or non-recurring when in fact overtime was a consistent part of the worker’s compensation at Ingalls. It means ignoring second employer earnings from workers who held multiple jobs. Each of those exclusions reduces the average weekly wage, and each reduction flows through to every benefit payment and every permanent disability calculation for the life of the claim.

What The Carrier Excludes From The Average Weekly Wage Calculation And Why It Matters

Overtime is the most significant exclusion carriers use against Ingalls workers. Skilled tradespeople at Ingalls work substantial overtime — shipbuilding schedules demand it and Ingalls workers expect it as a routine component of their compensation. When an Ingalls pipefitter making $35 per hour works sixty hours per week for most of the year, his actual weekly earnings are significantly higher than his base forty-hour rate. The carrier will argue that overtime is irregular and variable and should not be included in the average weekly wage. Under 33 U.S.C. Section 910, that argument is wrong when overtime is a consistent and expected part of the employment. Fighting that argument correctly at the ALJ level requires a lawyer who knows the case law on overtime inclusion.

Fringe benefits — employer-paid health insurance, pension contributions, and similar compensation — are also subject to inclusion arguments under LHWCA case law in appropriate circumstances. The carrier will exclude them. Whether those exclusions are legally correct depends on the specific facts and the applicable case law in the Fifth Circuit.

Second employer earnings are another frequent exclusion. A worker who holds a second job — common among Ingalls tradespeople who do side work in construction or marine maintenance — may have total annual earnings substantially higher than Ingalls alone would suggest. Under 33 U.S.C. Section 910, second employer wages are included in the average weekly wage calculation. The carrier will exclude them unless someone forces the issue.

The dollar impact of these exclusions compounds through the entire claim. If the correct average weekly wage is $1,400 per week and the carrier is calculating at $1,100 per week, the two-thirds wage replacement rate is $933 versus $733 — a difference of $200 per week. Over a two-year temporary disability period, that is $20,800 in underpaid wage replacement. Applied to 312 weeks of arm schedule compensation at a 40 percent impairment rating, the difference between the two AWW figures is over $37,000 in permanent disability compensation. The average weekly wage error is not a technicality. It is money.

How The Average Weekly Wage Connects To The Settlement Value

When the carrier makes a lump sum settlement offer, that offer is built on the carrier’s average weekly wage calculation and the carrier’s impairment rating. Both numbers are in the carrier’s interest. The AWW is understated and the impairment rating is minimized. The settlement offer is the product of those two wrong numbers. If you accept the offer without knowing the correct AWW, you are accepting a settlement that has a structural error in its foundation.

A Pascagoula longshore lawyer who has tried AWW disputes in front of Administrative Law Judges knows exactly how to document the correct earnings history, identify the carrier’s exclusions, and present the correct calculation at the hearing level. The carrier’s willingness to improve a settlement offer is directly related to their belief that the AWW argument will be made effectively at hearing. The TV lawyer who does not know how Section 910 works cannot make that argument. The carrier knows that and prices the settlement accordingly.

Get the free book at the bottom of this page before you accept any offer or sign any documents about your benefits. And do not give the adjuster a recorded statement — that statement will be used to establish the earnings history in a way that supports the carrier’s low AWW calculation.

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