Rhine v. Stevedoring Services of America
Filed March 5, 2010
Cite as 08-73370

PMA Averaging Correctly Used

Lloyd Rhine was injured while employed as B-registered longshoreman. Pursuant to the Longshore and Harbor Workers’ Compensation Act, Rhine filed a claim before the Benefits Review Board (BRB).

Upon initial hearing, the ALJ used the 1997 Pacific Maritime Association Average or PMA Average “B” in determining Rhine’s wage. However, BRB remanded the case to the ALJ.

Upon second hearing, ALJ determined that Rhine’s average weekly wage was $877.96.

Rhine appealed the decision alleging ALJ’s use of the 1997 PMA “B” Average. Rhine claimed that the use of PMA “B” average resulted in an inflexible mathematical calculation. Further, he claimed that his average weekly wage must be included in the ALJ’s calculation of an employee’s average weekly wage.

In his suit, however, Rhine failed to name the director of the Office of the Worker’s Compensation Program (OCWP) as required by law. The trial court favored the BRB.

The United States Court of Appeal Ninth Circuit in affirming the decisions of both the BRB and ALJ ruled as follows:

1. Court of Appeals had jurisdiction to review the decision of BRB despite non-inclusion of the director’s name because Rhine notified OWCP and the latter subsequently appeared as a respondent.
2. ALJ did not err in calculating Rhine’s average weekly wage under 33 U.S.C. Sec. 910(c) based on PMA Average data where a reasonable mind could have concluded that the average adequately represented his earning capacity.
3. BRB did not err by reducing Rhine’s average wage by the amount he could have earned in alternative non-longshore employment, even if taking such work could have jeopardized his status as a longshoreman.