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Average Weekly Wage and Settlement Value of a Longshore or Defense Base Act case

Geoffrey and Alan Shapiro attended the Annual Longshore Conference sponsored by Loyola University of New Orleans. The conference discussed recent developments concerning Longshore and Defense Base Act Claims. The hot topic was “Average Weekly Wage”.

The Average Weekly Wage is extremely important in determining the value of a Longshore or DBA case. It provides the basis for temporary total compensation, wage earning capacity compensation and settlement value. One would think that this is a very simple determination. Unfortunately it is not. The new case law seems to threaten the potential value of a claimant’s case. In short, the employers will now have a legal basis for using the lowest possible average wage. Potentially, the average weekly wage will be a very important point of contention in every case. The employers will argue that the wage earned overseas does not accurately represent the claimant’s Average Weekly Wage. The employer will argue that the wage should be set at what the claimant earned at an average during his work life in the United States. If this argument holds, the Insurance Carriers will have eliminated wage earning awards and thus eliminated most of the settlement value of the claim.

The Conference was in agreement that this issue will increase litigation until the Supreme Court of the United States makes a decision, which will certainly be several years from now.

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