Start With the Injury Date
Under Section 10 of the Longshore and Harbor Workers’ Compensation Act (LHWCA), average weekly wage (AWW) generally equals average annual earnings calculated under the applicable statutory method, divided by 52. The statute ties that calculation to the worker’s earnings and earning capacity at the time of injury, subject to its specific rules and exceptions (33 U.S.C. § 910).
The goal is a fair measure of what the worker could reasonably earn, not simply the largest wage figure in the file. The right method depends on the work history, the available payroll and workday records, and the governing law. Our team reviews those records in the context of the claim so the wage analysis reflects the statutory framework, rather than relying on a convenient but potentially misleading figure.
The Statutory Framework and Covered Workers
The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal workers’ compensation law for eligible employees injured or made ill in maritime employment. Codified at 33 U.S.C. §§ 901–950, it provides compensation and medical care, and the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) administers the program.
Coverage generally depends on both the worker’s duties and where the injury occurred. Potentially covered work includes longshoring, shipbuilding, ship repair, shipbreaking, and harbor or marine-terminal work; the location must be navigable waters or an adjoining area used for loading, unloading, repairing, dismantling, or building vessels.
Some employees working outside this core maritime setting may qualify under statutory extensions, including the Defense Base Act, which covers certain workers on overseas government contracts. Our team reviews employment and medical records in federal claims, including LHWCA and Defense Base Act cases, with documentation aligned to OWCP standards.
The LHWCA generally provides no-fault benefits to covered maritime employees who are not seamen. By contrast, the Jones Act, 46 U.S.C. § 30104, allows qualifying seamen to sue employers for negligence. Seaman status turns on job duties and connection to a vessel or fleet, not title alone, so the worker’s circumstances determine which framework applies.
Choose the Applicable Section 10 Method
Under the LHWCA, average weekly wage (AWW) is generally calculated by determining average annual earnings under Section 10(a), 10(b), or 10(c), then dividing that figure by 52 under Section 10(d). The applicable method depends on the worker’s employment history and whether the evidence supports a fair estimate of earning capacity. 33 U.S.C. § 910
Section 10(a): The worker’s own earnings
Section 10(a) generally applies when the worker was employed in the relevant work for substantially the whole year before injury and the record shows earnings and days employed. Divide earnings from the preceding 52 weeks by the days employed to find the average daily wage, multiply by 260 for a five-day worker or 300 for a six-day worker, then divide annual earnings by 52.
The five-day or six-day classification depends on the actual work pattern, not simply the job title. Payroll records, schedules, and testimony can help establish it. In the Ninth Circuit, Section 10(a) is generally favored when the claimant worked at least 75% of available workdays and the evidence allows the statutory calculation; a result higher than actual annual earnings alone does not disqualify the method. Department of Labor Section 10 reference
Section 10(b): A comparable employee’s earnings
Section 10(b) may apply when the claimant did not work substantially the whole preceding year in the relevant employment. The calculation uses the average daily wage of a suitable employee of the same class who worked substantially the whole year in the same or similar employment in the same or a neighboring place, with the applicable 260- or 300-day multiplier. The record needs evidence of that comparator’s wages.
Section 10(c): A fair estimate of earning capacity
When Sections 10(a) and 10(b) cannot reasonably and fairly be applied, Section 10(c) directs the fact-finder to estimate annual earning capacity. Relevant evidence may include the worker’s prior earnings, comparable employees’ earnings, other employment, and, for self-employment, the reasonable value of the worker’s services.
This fallback can address seasonal, part-time, intermittent, or discontinuous work, but the estimate must be supported by evidence and reflect capacity at the time of injury. NorCal Medical Consulting reviews wage records and employment documentation as part of its medical-legal case evaluations, helping clarify the factual record for claims professionals assessing the appropriate method.
Test the Wage Evidence
A sound Section 10 calculation depends on records that show both what the worker earned and how the work was performed. Review payroll and daily time records, the work calendar for the year before injury, contracts, pay rates and raises, overtime history, leave and holiday records, bonuses, allowances, earnings from other jobs, and comparable-worker wages.
If daily records do not establish days worked or support an average-daily-wage calculation, Section 10(a) may not be available. Paid holidays and vacation actually taken may count as days employed, depending on the facts, but a lump-sum payment for unused vacation generally cannot be converted into extra workdays. The Department of Labor’s Section 10 reference discusses these evidentiary limits.
Under Section 2(13), wages generally include the money rate paid under the hiring contract and qualifying employer-provided advantages. Many employer contributions to retirement, health, and other benefit plans are excluded. Meals, lodging, per diem, and similar payments require closer review because their treatment depends on the facts and controlling circuit law.
Regular, normal overtime generally counts, while overtime the worker might have earned only after the injury does not. Vacation or holiday pay and some contract-based payments may qualify; a one-time bonus may be excluded if it does not reflect expected earning capacity. Earnings from a second job depend on whether the injury affected the worker’s capacity to earn them. Section 2(13) and Section 10 provide the statutory context.
For Section 10(c), evidence of earnings across multiple years, recent raises or promotions, and time lost to strikes or layoffs may help show earning capacity. Actual earnings do not always control: the analysis may also consider whether the worker had the ability, willingness, and opportunity to perform other work. NorCal Medical Consulting reviews employment and medical records together when preparing independent evaluations for federal claims, helping clarify the documented work and injury context.
Fix the Relevant Date and Benefit Context
Average weekly wage (AWW) is generally fixed using earnings at the time of injury, and one AWW ordinarily applies to that specific injury across disability categories. A later aggravation may require a new calculation if it is found to be a new injury, rather than a progression of the original condition. The Department of Labor’s Section 10 reference summarizes these distinctions.
For a traumatic injury, the usual date is the accident date. The Ninth Circuit recognizes a limited exception for certain latent traumatic injuries whose disabling effects remained unknown while the worker continued working. For an occupational disease that does not immediately cause disability or death, Section 10(i) generally points to when the worker knew, or reasonably should have known, of the relationship between employment, disease, and disability or death. Occupational hearing loss has a special rule: the injury is generally complete on the last date of injurious noise exposure.
AWW is not the weekly benefit amount. Total disability benefits are generally two-thirds of AWW, subject to statutory limits; partial-disability calculations may account for post-injury earning capacity, while permanent partial disability may follow another statutory schedule. Check the Department of Labor’s compensation-rate information for the fiscal year that includes the injury date, since the maximum changes annually. NorCal Medical Consulting’s physicians can assess medical evidence relevant to injury timing and impairment, while wage calculations remain grounded in the employment record.
Under LHWCA § 9, eligible survivors may receive weekly death benefits based on the deceased worker’s wages, subject to statutory percentages and limits. The award depends on family circumstances and dependency.
Injury notice generally must be given within 30 days, and a compensation claim generally filed within one year; occupational-disease periods may differ. Reporting and filing are separate requirements, so assess both dates promptly under the LHWCA. For related benefit context, see our discussion of LHWCA benefit calculations.
Document the Calculation
Before accepting an average weekly wage figure, confirm the injury date, identify the applicable Section 10 method, and test the wage and workday evidence. For disputed payments or classifications, check controlling circuit law; the Department of Labor’s Section 10 reference summarizes rules that can differ by jurisdiction.
A stipulation or convenient wage figure does not replace a method permitted by Section 10. If the record is incomplete, specify what is missing, such as payroll records, schedules, or comparable-worker earnings, and explain how that evidence bears on earning capacity under 33 U.S.C. § 910.
