ALJ Sarno Analyzes AWW and Residual Earning Capacity in DBA Claim

www.oalj.dol.gov/Decisions/ALJ/LDA/2011/WILLIS_DAVID_M_v_DYNCORP_INTERNATIONA_2011LDA00487_(JUL_27_2012)_145355_CADEC_SD.PDF


In circumstances involving a one-year contract for work overseas in a hostile, dangerous
environment in return for higher wages, a “claimant’s average weekly wage must be based on the
higher wages earned in the job in which he was injured … particularly since those wages were
the primary reason for [a claimant] accepting employment under [existing] dangerous working
conditions.” K.S. v. Service Employees International, Inc., 43 BRBS 18, 21 (2009). See also
Simons v. Service Employees International, Inc., 43 BRBS 18 (2009). The Claimant in this case
was injured six weeks into a one-year contract with the Employer. He in fact completed his
contract and extended it to work for an additional six months overseas for the Employer.
Therefore, I find his average weekly wage must be based only on his overseas earnings with the
Employer.

Claimant contends his average weekly wage should be calculated using only the six
weeks of earnings prior to his injury. The Employer argues that because Claimant returned to
work after his injury, his wages can be more accurately calculated by considering his post-injury
earnings with the Employer. The Employer notes that Claimant’s post-injury earnings take into
account unpaid rest and relaxation time (“R&R”) that his pre-injury earnings do not.
In some circumstances it is appropriate to look to a claimant’s post-injury earnings when
his pre-injury earnings do not fairly represent his earning capacity. See L-3 Communications v.
Dir., OWCP, et al., 2011 WL 6046440 (E.D.Va. 2011). In this case, Claimant’s six weeks of preinjury
earnings are inflated compared to his regular earnings after his injury. In Claimant’s first
three days of work he had earnings of $4,676.162, for a daily rate of $1,558.72, significantly
higher than the daily wage rate called for in his contract of $354.243. Therefore I find his preinjury
earnings do not accurately reflect his earning capacity.
However, I also find that Claimant’s post-injury wages may not accurately reflect his
earning capacity. According to the Employer, the reason Claimant’s average weekly earnings are
lower over the course of his employment with the Employer is that he took unpaid R&R during
that time.4 Employer argues there is no evidence that Claimant would not have continued to take
such breaks every couple months as he had shown a history of doing. However, I note that
Claimant sought medical treatment while home on R&R and it is quite possible he was
motivated to schedule R&R due to a need to recover from working in the conditions that were
causing him pain. There is no way to know if and how frequently Claimant would have opted to
take R&R had he not been injured.5 There is no evidence Claimant was required to take R&R at
any preset interval or in a certain amount during the course of his contract. Claimant did not
testify as to his intention to take breaks at certain intervals or in a certain amount every year.
I find the best method for determining Claimant’s annual earning capacity in this case is
to look at the wages Claimant had contracted to earn. His contract called for a daily wage rate of
$216, 35% hazard pay, 25% bonus, and 4% annual leave for a daily rate of $354.246, which is a
weekly rate of $2,479.68. I find that amount best represents the Claimant’s annual earning
capacity at the time of the injury.