33 U.S.C. § 909 — Compensation for death

Page 291 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 909 Par. (8) Great toe lost, increased from twenty-six to thirty-eight weeks’ compensation. Par. (9) Second finger lost, increased from eighteen to thirty weeks’ compensation. Par. (10) Third finger lost, increased from seventeen to twenty-five weeks’ compensation. Par. (11) Toe other than great toe lost, increased from eight to sixteen weeks’ compensation. Par. (12) Fourth finger lost, increased from seven to fifteen weeks’ compensation. Subsec. (g). Act July 26, 1956, § 3, substituted ‘‘$25’’ for ‘‘$10’’. 1948—Subsec. (c). Act June 24, 1948, inserted in open- ing par. ‘‘or temporary partial disability’’, ‘‘or sub- section (e)’’, and ‘‘respectively’’. 1938—Subsec. (c). Act June 25, 1938, § 4, in par. (22), in- serted exception clause. Subsecs. (h), (i). Act June 25, 1938, § 5 added subsecs. (h) and (i). 1934—Subsec. (c). Act May 26, 1934, § 2, inserted in opening par. ‘‘which shall be in addition to compensa- tion for temporary total disability paid in accordance with subsection (b) of this section’’ and decreased peri- ods in schedule of compensation of pars. (1) to (12). Subsec. (c). Act May 26, 1934, § 3, substituted new par. (22), providing that ‘‘In any case in which there shall be a loss of, or loss of use of, more than one member or parts of more than one member set forth in paragraphs (1) to (19) of this subdivision, not amounting to perma- nent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or part thereof, which awards shall run consecu- tively.’’, for former provisions, providing that ‘‘In case of temporary total disability and permanent partial disability, both resulting from the same injury, if the temporary total disability continues for a longer period than the number of weeks set forth in the following schedule, the period of temporary total disability in ex- cess of such number of weeks shall be added to the com- pensation period provided in this subdivision: Arm, thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot, thirty-two weeks; eye, twenty weeks; thumb, twenty-four weeks; first finger, eighteen weeks; great toe, twelve weeks; second finger, twelve weeks; third finger, eight weeks; fourth finger, eight weeks; toe other than great toe, eight weeks. ‘‘In any case resulting in loss or partial loss of arm, leg, hand, foot, eye, thumb, finger, or toe, where the temporary total disability does not extend beyond the periods above mentioned for such injury, compensation shall be limited to the schedule contained in this sub- division.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 8(a), (c)(2), (e)(1), (2) of Pub. L. 98–426 effective Sept. 28, 1984, and applicable both with respect to claims filed after such date and to claims pending on such date, amendment by section 8(b) of Pub. L. 98–426 applicable with respect to any injury after Sept. 28, 1984, amendment by sections 8(c)(1), (e)(4), (5), (g), and 27(a)(2) of Pub. L. 98–426 effective Sept. 28, 1984, amendment by section 8(d) of Pub. L. 98–426 applicable with respect to any death after Sept. 28, 1984, amendment by section 8(f) of Pub. L. 98–426 ef- fective 90 days after Sept. 28, 1984, and applicable both with respect to claims filed after such 90th day and to claims pending on such 90th day, and amendment by section 8(h) of Pub. L. 98–426 effective 90 days after Sept. 28, 1984, see section 28(a)–(e) of Pub. L. 98–426, set out as a note under section 901 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Amendment by Pub. L. 92–576 effective 30 days after Oct. 27, 1972, see section 22 of Pub. L. 92–576, set out as a note under section 902 of this title. EFFECTIVE DATE OF 1956 AMENDMENT Amendment by act July 26, 1956, applicable only with respect to injuries and death occurring on or after July 26, 1956, see section 9 of act July 26, 1956, set out as a note under section 906 of this title. EFFECTIVE DATE OF 1948 AMENDMENT Amendment by act June 24, 1948, applicable to death or injuries occurring after June 24, 1948, see section 6 of act June 24, 1948, set out as a note under section 906 of this title. § 909. Compensation for death If the injury causes death, the compensation therefore shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following: (a) Reasonable funeral expenses not exceeding $3,000. (b) If there be a widow or widower and no child of the deceased, to such widow or widower 50 per centum of the average wages of the deceased, during widowhood, or dependent widowerhood, with two years’ compensation in one sum upon remarriage; and if there be a surviving child or children of the deceased, the additional amount of 162⁄3 per centum of such wages for each such child; in case of the death or remarriage of such widow or widower, if there be one surviving child of the deceased employee, such child shall have his compensation increased to 50 per cen- tum of such wages, and if there be more than one surviving child of the deceased employee, to such children, in equal parts, 50 per centum of such wages increased by 162⁄3 per centum of such wages for each child in excess of one: Provided, That the total amount payable shall in no case exceed 662⁄3 per centum of such wages. The dep- uty commissioner having jurisdiction over the claim may, in his discretion, require the ap- pointment of a guardian for the purpose of re- ceiving the compensation of a minor child. In the absence of such a requirement the appoint- ment of a guardian for such purposes shall not be necessary. (c) If there be one surviving child of the de- ceased, but no widow or widower, then for the support of such child 50 per centum of the wages of the deceased; and if there be more than one surviving child of the deceased, but no widow or dependent husband, then for the support of such children, in equal parts 50 per centum of such wages increased by 162⁄3 per centum of such wages for each child in excess of one: Provided, That the total amount payable shall in no case exceed 662⁄3 per centum of such wages. (d) If there be no surviving wife or husband or child, or if the amount payable to a surviving wife or husband and to children shall be less in the aggregate than 662⁄3 per centum of the aver- age wages of the deceased; then for the support of grandchildren or brothers and sisters, if de- pendent upon the deceased at the time of the in- jury, and any other persons who satisfy the defi- nition of the term ‘‘dependent’’ in section 152 of title 26, but are not otherwise eligible under this section, 20 per centum of such wages for the sup- port of each such person during such dependency and for the support of each parent, or grand- parent, of the deceased if dependent upon him at the time of the injury, 25 per centum of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between 662⁄3 Page 292 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 909 per centum of such wages and the amount pay- able as hereinbefore provided to widow or wid- ower and for the support of surviving child or children. (e) In computing death benefits, the average weekly wages of the deceased shall not be less than the national average weekly wage as pre- scribed in section 906(b) of this title, but— (1) the total weekly benefits shall not exceed the lesser of the average weekly wages of the deceased or the benefit which the deceased em- ployee would have been eligible to receive under section 906(b)(1) of this title; and (2) in the case of a claim based on death due to an occupational disease for which the time of injury (as determined under section 910(i) of this title) occurs after the employee has re- tired, the total weekly benefits shall not ex- ceed one fifty-second part of the employee’s average annual earnings during the 52-week period preceding retirement. (f) All questions of dependency shall be deter- mined as of the time of the injury. (g) Aliens: Compensation under this chapter to aliens not residents (or about to become non- residents) of the United States or Canada shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the injury, and except that the Secretary may, at his option or upon the application of the insurance carrier shall, commute all future in- stallments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the Secretary. (Mar. 4, 1927, ch. 509, § 9, 44 Stat. 1429; June 25, 1938, ch. 685, § 6, 52 Stat. 1166; June 24, 1948, ch. 623, § 3, 62 Stat. 602; July 26, 1956, ch. 735, § 4, 70 Stat. 655; Pub. L. 87–87, § 2, July 14, 1961, 75 Stat. 203; Pub. L. 92–576, §§ 5(d), 10, 20(c)(2), Oct. 27, 1972, 86 Stat. 1253, 1257, 1265; Pub. L. 98–426, §§ 9, 27(a)(2), Sept. 28, 1984, 98 Stat. 1647, 1654.) Editorial Notes AMENDMENTS 1984—Pub. L. 98–426, § 9(a), amended generally provi- sion preceding subsec. (a), striking out ‘‘or if the em- ployee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury,’’ after ‘‘injury causes death’’. Subsec. (a). Pub. L. 98–426, § 9(b), substituted ‘‘$3,000’’ for ‘‘$1,000’’. Subsec. (e). Pub. L. 98–426, § 9(c), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as fol- lows: ‘‘In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 906(b) of this title but the total weekly benefits shall not exceed the average weekly wages of the deceased’’. Subsec. (g). Pub. L. 98–426, § 27(a)(2), substituted ‘‘Sec- retary’’ for ‘‘commission’’. See Transfer of Functions note set out under section 902 of this title. 1972—Pub. L. 92–576, § 5(d), added to introductory pro- vision that the compensation shall be known as a death benefit if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury. Subsec. (a). Pub. L. 92–576, § 10(a), substituted ‘‘$1,000’’ for ‘‘$400’’. Subsec. (b). Pub. L. 92–576, §§ 10(b), 20(c)(2), sub- stituted ‘‘50’’ for ‘‘35’’ per centum in three places and ‘‘162⁄3’’ for ‘‘15’’ per centum in two places and ‘‘widow or widower’’ for ‘‘surviving wife or dependent husband’’ in three places. Subsec. (c). Pub. L. 92–576, §§ 10(b), 20(c)(2), sub- stituted ‘‘50’’ for ‘‘35’’ per centum in two places and ‘‘162⁄3’’ for ‘‘15’’ per centum and ‘‘widow or widower’’ for ‘‘surviving wife or dependent husband’’. Subsec. (d). Pub. L. 92–576, §§ 10(c), 20(c)(2), in first sentence, substituted ‘‘husband or child,’’ and ‘‘hus- band’’ for ‘‘dependent husband or child’’ and ‘‘depend- ent husband’’ and ‘‘20’’ for ‘‘15’’ per centum, and in- serted ‘‘and any other persons who satisfy the defini- tion of the term ‘dependent’ in section 152 of title 26, but are not otherwise eligible under this section’’ after ‘‘time of the injury,’’ and ‘‘during such dependency’’ after ‘‘support of each such person’’, and in second sen- tence, substituted ‘‘widow or widower’’ for ‘‘surviving wife or dependent husband’’, respectively. Subsec. (e). Pub. L. 92–576, § 10(d), substituted ‘‘less than the applicable national average weekly wage as prescribed in section 906(b) of this title but the total weekly benefits shall not exceed the average weekly wages of the deceased’’ for ‘‘more than $105 nor less than $27 but the total weekly compensation shall not exceed the weekly wages of the deceased’’. 1961—Subsec. (e). Pub. L. 87–87 increased the max- imum limitation with respect to average weekly wages from ‘‘$81’’ to ‘‘$105’’ in the computation of death bene- fits. 1956—Subsec. (e). Act July 26, 1956, substituted ‘‘$81’’ for ‘‘$52.50’’ and ‘‘$27’’ for ‘‘$18’’. 1948—Subsec. (a). Act June 24, 1948, increased funeral expenses from $200 to $400. Subsec. (b). Act June 24, 1948, increased benefits to children of deceased workmen from 10 percent to 15 per- cent. Subsec. (c). Act June 24, 1948, increased death benefits of orphaned children from 15 percent to 35 percent. Subsec. (e). Act June 24, 1948, correlated basis for computing death benefits with basis for computing dis- ability benefits under section 906(b) of this title. 1938—Subsecs. (b) to (d). Act June 25, 1938, struck out references to children as being under eighteen years of age. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 9 of Pub. L. 98–426 applicable with respect to any death after Sept. 28, 1984, and amendment by section 27(a)(2) of Pub. L. 98–426 effec- tive Sept. 28, 1984, see section 28(d), (e)(1) of Pub. L. 98–426, set out as a note under section 901 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Amendment by section 20(c)(2) of Pub. L. 92–576 appli- cable only with respect to deaths or injuries occurring after Oct. 27, 1972, see section 20(c)(3) of Pub. L. 92–576, set out as a note under section 902 of this title. Amendment by Pub. L. 92–576 effective 30 days after Oct. 27, 1972, see section 22 of Pub. L. 92–576, set out as a note under section 902 of this title. EFFECTIVE DATE OF 1961 AMENDMENT Amendment by Pub. L. 87–87 effective as to death sus- tained on or after July 14, 1961, see section 4 of Pub. L. 87–87, set out as a note under section 906 of this title. EFFECTIVE DATE OF 1956 AMENDMENT Amendment by act July 26, 1956, applicable only with respect to injuries and death occurring on or after July 26, 1956, see section 9 of act July 26, 1956, set out as a note under section 906 of this title. Page 293 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 910 EFFECTIVE DATE OF 1948 AMENDMENT Amendment by act June 24, 1948, applicable to death or injuries occurring after June 24, 1948, see section 6 of act June 24, 1948, set out as a note under section 906 of this title. § 910. Determination of pay Except as otherwise provided in this chapter, the average weekly wage of the injured em- ployee at the time of the injury shall be taken as the basis upon which to compute compensa- tion and shall be determined as follows: (a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his in- jury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. (b) If the injured employee shall not have worked in such employment during substan- tially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or sal- ary, which an employee of the same class work- ing substantially the whole of such immediately preceding year in the same or in similar employ- ment in the same or a neighboring place shall have earned in such employment during the days when so employed. (c) If either of the foregoing methods of arriv- ing at the average annual earnings of the in- jured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earn- ings of the injured employee in the employment in which he was working at the time of the in- jury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee. (d)(1) The average weekly wages of an em- ployee shall be one fifty-second part of his aver- age annual earnings. (2) Notwithstanding paragraph (1), with re- spect to any claim based on a death or disability due to an occupational disease for which the time of injury (as determined under subsection (i)) occurs— (A) within the first year after the employee has retired, the average weekly wages shall be one fifty-second part of his average annual earnings during the 52-week period preceding retirement; or (B) more than one year after the employee has retired, the average weekly wage shall be deemed to be the national average weekly wage (as determined by the Secretary pursu- ant to section 906(b) of this title) applicable at the time of the injury. (e) If it be established that the injured em- ployee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his aver- age weekly wages. (f) Effective October 1 of each year, the com- pensation or death benefits payable for perma- nent total disability or death arising out of inju- ries subject to this chapter shall be increased by the lesser of— (1) a percentage equal to the percentage (if any) by which the applicable national weekly wage for the period beginning on such October 1, as determined under section 906(b) of this title, exceeds the applicable national average weekly wage, as so determined, for the period beginning with the preceding October 1; or (2) 5 per centum. (g) The weekly compensation after adjustment under subsection (f) shall be fixed at the nearest dollar. No adjustment of less than $1 shall be made, but in no event shall compensation or death benefits be reduced. (h)(1) Not later than ninety days after October 27, 1972, the compensation to which an employee or his survivor is entitled due to total perma- nent disability or death which commenced or oc- curred prior to October 27, 1972, shall be ad- justed. The amount of such adjustment shall be determined in accordance with regulations of the Secretary by designating as the employee’s average weekly wage the applicable national av- erage weekly wage determined under section 906(b) of this title and (A) computing the com- pensation to which such employee or survivor would be entitled if the disabling injury or death had occurred on the day following October 27, 1972, and (B) subtracting therefrom the com- pensation to which such employee or survivor was entitled on October 27, 1972; except that no such employee or survivor shall receive total compensation amounting to less than that to which he was entitled on October 27, 1972. Not- withstanding the foregoing sentence, where such an employee or his survivor was awarded com- pensation as the result of death or permanent total disability at less than the maximum rate that was provided in this chapter at the time of the injury which resulted in the death or dis- ability, then his average weekly wage shall be determined by increasing his average weekly wage at the time of such injury by the percent- age which the applicable national average week- ly wage has increased between the year in which the injury occurred and the first day of the first month following October 27, 1972. Where such in- jury occurred prior to 1947, the Secretary shall determine, on the basis of such economic data as he deems relevant, the amount by which the em- ployee’s average weekly wage shall be increased for the pre-1947 period. (2) Fifty per centum of any additional com- pensation or death benefit paid as a result of the adjustment required by paragraphs (1) and (3) of this subsection shall be paid out of the special fund established under section 944 of this title, and 50 per centum shall be paid from appropria- tions. (3) For the purposes of subsections (f) and (g) an injury which resulted in permanent total dis-