33 U.S.C. § 910 — Determination of pay

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- Page 294 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 911 ability or death which occurred prior to October 27, 1972, shall be considered to have occurred on the day following such date. (i) For purposes of this section with respect to a claim for compensation for death or disability due to an occupational disease which does not immediately result in death or disability, the time of injury shall be deemed to be the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employ- ment, the disease, and the death or disability. (Mar. 4, 1927, ch. 509, § 10, 44 Stat. 1431; June 24, 1948, ch. 623, § 4, 62 Stat. 603; Pub. L. 92–576, § 11, Oct. 27, 1972, 86 Stat. 1258; Pub. L. 98–426, § 10, Sept. 28, 1984, 98 Stat. 1647.) Editorial Notes AMENDMENTS 1984—Subsec. (d). Pub. L. 98–426, § 10(a)(1), designated existing provisions as par. (1) and added par. (2). Subsec. (f). Pub. L. 98–426, § 10(b), substituted ‘‘subject to this chapter’’ for ‘‘sustained after October 27, 1972,’’ and inserted ‘‘the lesser of—’’ after ‘‘by’’ in introduc- tory language, designated balance of existing provi- sions as par. (1), substituted ‘‘; or’’ for a period at end of par. (1), and added par. (2). Subsec. (i). Pub. L. 98–426, § 10(a)(2), added subsec. (i). 1972—Subsecs. (f) to (h). Pub. L. 92–576 added subsecs. (f) to (h). 1948—Subsec. (a). Act June 24, 1948, included a factor (a 260 multiplier) so as to make this subsec. useful in 5-day week employments. Subsec. (b). Act June 24, 1948, included the new factor (a 260 multiplier) to make this subsec. consistent with subsec. (a). Subsec. (c). Act June 24, 1948, permitted the inclusion of all earnings of the injured workman in determining the employee’s annual earning capacity. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 10(a) of Pub. L. 98–426 effec- tive Sept. 28, 1984, and applicable both with respect to claims filed after such date and to claims pending on such date, and amendment by section 10(b) of Pub. L. 98–426 effective Sept. 28, 1984, see section 28(a), (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 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 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. § 911. Guardian for minor or incompetent The deputy commissioner may require the ap- pointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter. (Mar. 4, 1927, ch. 509, § 11, 44 Stat. 1431.) § 912. Notice of injury or death (a) Time limitation Notice of an injury or death in respect of which compensation is payable under this chap- ter shall be given within thirty days after the date of such injury or death, or thirty days after the employee or beneficiary is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of a re- lationship between the injury or death and the employment, except that in the case of an occu- pational disease which does not immediately re- sult in a disability or death, such notice shall be given within one year after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical ad- vice should have been aware, of the relationship between the employment, the disease, and the death or disability. Notice shall be given (1) to the deputy commissioner in the compensation district in which the injury or death occurred, and (2) to the employer. (b) Form and content Such notice shall be in writing, shall contain the name and address of the employee and a statement of the time, place, nature, and cause of the injury or death, and shall be signed by the employee or by some person on his behalf, or in case of death, by any person claiming to be enti- tled to compensation for such death or by a per- son on his behalf. (c) Delivery requirements Notice shall be given to the deputy commis- sioner by delivering it to him or sending it by mail addressed to his office, and to the employer by delivering it to him or by sending it by mail addressed to him at his last known place of busi- ness. If the employer is a partnership, such no- tice may be given to any partner, or if a cor- poration, such notice may be given to any agent or officer thereof upon whom legal process may be served or who is in charge of the business in the place where the injury occurred. Each em- ployer shall designate those agents or other re- sponsible officials to receive such notice, except that the employer shall designate as its rep- resentatives individuals among first line super- visors, local plant management, and personnel office officials. Such designations shall be made in accordance with regulations prescribed by the Secretary and the employer shall notify his em- ployees and the Secretary of such designation in a manner prescribed by the Secretary in regula- tions. (d) Failure to give notice Failure to give such notice shall not bar any claim under this chapter (1) if the employer (or his agent or agents or other responsible official or officials designated by the employer pursuant to subsection (c)) or the carrier had knowledge of the injury or death, (2) the deputy commis- sioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (3) if the deputy commissioner excuses such failure on the ground that (i) notice, while not given to a responsible official designated by the employer pursuant to subsection (c) of this section, was given to an official of the employer