Supplementing my

Supplementing my earlier post on the Roberts v. Sea-Land Services, Inc. case, I have obtained copies of the cert-phase briefs from Claimant's counsel. Claimant's Petition U.S. Brief in Opposition Claimant's Reply The Claimant sought review on the following Questions Presented: The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 ("Longshore Act") provides generally for compensation for total disability in periodic payments at a rate of two-thirds of the "average weekly wage of the injured employee at the time of the injury," and for most partial disabilities the same fraction of the difference between that weekly wage and the worker's residual "wage-earning capacity." Id. §§ 8-10, 33 U.S.C. §§ 908-10. But it has always imposed upper and lower limits on the rate payable as so determined. Section 6(b) of the Act, 33 U.S.C. § 906(b), provides that the compensation rate cannot be more than twice "the applicable national average weekly wage," as determined for each fiscal year; nor can compensation for total disability be less than the lesser of half the "applicable national average weekly wage" so determined and the worker's full pre-injury earnings. The question which fiscal year's limits are the "applicable" ones is addressed by § 6(c): Determinations under subsection (b)(3) of this section with respect to a [fiscal year] shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period. 33 U.S.C. § 906(c). The identity of the years whose limits are "applicable" under this provision has divided the two courts of appeals with the heaviest Longshore Act dockets. The questions presented are simple and straightforward: 1. Whether the phrase "those newly awarded compensation during such period" in Longshore Act § 6(c), applicable to all classes of disability except permanent total, can be read to mean "those first entitled to compensation during such period," regardless of when it is awarded. 2. Whether the phrase "employees or survivors currently receiving compensation for permanent total disability or death benefits during such period" in § 6(c) can likewise be read to mean those "entitled to [such] compensation during such period," without reference to when it is received. The Supreme Court granted review on Question 1. Mahalo to Claimant's counsel, Joshua Gillelan, II for the briefs.

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