CLAIMANT AWARDED TEMPORARY TOTAL DISABILITY BENEFITS (ALJ DORSEY)

JERRY HILL v. CLD PACIFIC GRAIN and AMERICAN HOME ASSURANCE COMPANY 
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At trial and in their briefs, the parties agreed the Claimant hurt his left groin while working for the Employer on June 19, 2008. He then was a B-list registered ILWU longshoreman working on the Portland docks; he had been since November 18, 2006. They agree the PMA records 6 accurately reflect the Claimant’s work for the year before his injury. The Employer admits the Claimant’s injury is compensable under the Act,and the Employer has already paid the Claimant some compensation based on its own AWW calculation. Based on the Proposed Partial Order submitted,the parties agree the Employer is liable for temporary total disability payments from June 20, 2008 to January 7, 2009.If I determine the Claimant is a five day worker, his AWW determined under § 10(a) is $1,740.41;if he is not a five day worker, they agree his AWW determined under § 10(c) is $1,372.25 or $1,359.98. The sole issue is whether the Claimant is a five day per week worker whose AWW should be determined under § 10(a) of the Act.

Conclusion

The Claimant worked more than five days more often than he worked fewer than five days per week.The Employer’s position is tantamount to arguing he isn’t a five day per week worker because he often worked six or seven days per week, and this means he is entitled to less disability compensation than if he had simply worked five days per week during those weeks. It doesn’t make sense. If anything, the Claimant might have argued he was a six day per week worker, because he worked at least six days per week more often than 
he worked any other number of days per week, and because he averaged more than five-and-a-half days per week in the weeks he worked. It is hard to see how finding the Claimant is a five day per week worker treats the Employer unfairly, when he averaged more than five days per week in the weeks he worked, and when he worked at least five days per week in over 70% of the weeks he worked.The weight of the evidence shows the Claimant ought to be categorized as a five day per week worker whose AWW should be determined under § 10(a). The parties appear to agree the calculation results in an AWW of $1,740.41.Because 66.6% of that number is more than twice the national average weekly wage for 2008, when the Claimant was injured, he is due compensation at the maximum rate of $1,160.36.