In February of 2002, while employed as a gatehouse keeper for Sea-Land Services in Dutch Harbor, Alaska – Mr. Dana Roberts – suffered injuries to both his neck and shoulder, which caused him to leave work. Kemper Insurance Company, Sea-Land’s insurer, made voluntary temporary total disability benefits to Roberts until May of 2005. In October 2006, an administrative law judge determined that Roberts qualified, in 2005, for permanent total disability payments form Kemper. The judge ordered his former employer to compensate Roberts based on the national average weekly wage of 2005, $1,037.64, as opposed to the national weekly wage of 2002, $966.08, when Roberts’ injury occurred. In 2010 the Ninth Circuit of the US Court of Appeals affirmed the 2006 order.
The law at issue, The Longshore and Harbor Workers’ Compensation Act, (LHWCA, codified as 33 U.S.C. § 901 et seq.,) limits employment injury compensation for maritime workers at twice the “applicable” fiscal year’s national average weekly wage. The task at hand for the Supreme Court in Roberts v. Sea-Land Services, No. 10-1399, is to decide whether a claimant’s compensation should be based on the year the permanent injury occurred or the year in which disability payments were ordered. Critics argue that it is too early for the Supreme Court’s intervention in this matter, citing other cases (i.e., Boroski v. DynCorp International, in the Eleventh Circuit) addressing the same issue, which encourage further debate and opinions regarding the question.