David Trachsel v. Rogers Terminal & Shipping Cor ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID L. TRACHSEL, 
Petitioner, No. 08-74397
v. Benefits Review
ROGERS TERMINAL & SHIPPING  Board Nos.
07-1003,
CORPORATION, and DIRECTOR,
OFFICE OF WORKER’S COMPENSATION 07-1003A.
PROGRAMS, OPINION
Respondents.

Petition for Review of an Order
of the Benefits Review Board
United States Department of Labor
Argued and Submitted
October 7, 2009—Portland, Oregon
Filed December 30, 2009
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge Whyte
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
16881
TRACHSEL v. ROGERS TERMINAL 16883
COUNSEL
Charles Rabinowitz, Law Offices of Charles Rabinowitz,
Portland, Oregon, for the petitioner.
Jay W. Beattie, Lindsay, Hart, Neil & Weigler, LLP, Portland,
Oregon, for the respondent.
OPINION
WHYTE, District Judge:
David Trachsel (“Trachsel”) petitions this court for review
of the administrative law judge’s (“ALJ”) compensation
award under the Longshore and Harbor Workers’ Compensa-
tion Act (“LHWCA”). The LHWCA provides that Trachsel’s
average daily wage, on which compensation is based, should
be calculated by dividing his total annual salary in the year
preceding his injury by the number of days he was employed
in that year. 33 U.S.C. § 910(a). The ALJ included unworked
paid holidays in the number of days Trachsel was employed,
which resulted in a lower award than Trachsel would have
received had those days not been included. The Benefits
Review Board (“BRB”) affirmed and Trachsel petitions for
review, arguing that the ALJ erred by including unworked
paid holidays. We find no error and affirm.
16884 TRACHSEL v. ROGERS TERMINAL
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are not in dispute. Trachsel is a long-
shoreman in Portland, Oregon. On January 11, 2002, he was
working with a gang on a ship loading grain when he slipped,
fell backwards, and injured his shoulder. Trachsel had surgery
and his arm was in a sling for six weeks before his doctor
gave him a full release to return to work, effective October
19, 2002. Trachsel returned to work the following day.
In the 52 weeks preceding January 11, 2002, Trachsel
earned a total of $63,644.08. During that period, he appeared
at work on 223 days, was paid for fourteen holidays, and
worked four of those holidays, leaving ten unworked paid hol-
idays. The ALJ concluded “that holidays for which a claimant
is paid but does not work should count as ‘work days,’ since
Claimant received wages for an actual day off work.” On that
basis, the ALJ calculated by the formula in section 910(a) that
Trachsel’s average weekly wage was $1,365.75.1
After a motion for reconsideration, both parties appealed to
the BRB. The BRB affirmed the ALJ’s conclusion that
unworked paid holidays should be included in the number of
days employed under section 910(a). Trachsel then petitioned
this court for review.
STANDARD OF REVIEW
We review legal decisions of the BRB for errors of law de
novo. Stevedoring Servs. of Am. v. Price, 382 F.3d 878, 883
(9th Cir. 2004).
1
Trachsel’s average weekly wage was calculated by taking his total
wages during the 52 weeks before his injury, dividing the total by the
number of days worked, multiplying the quotient by the average work
days in a year and dividing that product by the number of weeks in a year.
(($63,644.08 ÷ 233) 260) ÷ 52 = $1,365.75.
TRACHSEL v. ROGERS TERMINAL 16885
ANALYSIS
Under the LHWCA, a disabled worker injured in the course
of employment is compensated depending on the extent of his
disability and his average weekly wage at the time of injury.
33 U.S.C. § 908(a)-(e). In section 910, the LHWCA sets forth
three methods for calculating an employee’s “average annual
earnings,” which is then divided by 52 to determine the aver-
age weekly wage. 33 U.S.C. § 910(a)-(c), (d)(1).
[1] 33 U.S.C. § 910(a) provides for the calculation of an
employee’s average annual earnings when the employee has
worked in the employment at the time of injury “during sub-
stantially the whole of the year immediately preceding his
injury.” Under section 910(a), the average annual earnings for
a five-day-per-week worker is “two hundred and sixty times
the average daily wage or salary . . . which he shall have
earned during the days when so employed.” At issue in this
case is whether paid but unworked holidays count as “days
when so employed” under section 910(a).
In applying section 910(a), the ALJ must first determine the
total income earned by the claimant in the 52 weeks before
the injury, then divide that number by the number of “days
when so employed.” 33 U.S.C. § 910(a). The resulting quo-
tient is then multiplied by either 300 or 260, depending on
whether the worker is a six- or five-day worker. Id. That prod-
uct is the worker’s average yearly wage. Id. To find the aver-
age weekly wage, the average annual wage is divided by 52.
33 U.S.C. § 910(d)(1).
[2] Trachsel contends that “days when so employed” does
not include days for which an employee is paid but does not
work. Instead, he contends, only those days when the
employee actually works should constitute days employed.
Trachsel first argues that this court’s decision in Matulic v.
Director, OWCP, 154 F.3d 1052 (9th Cir. 1998), resolves the
issue in his favor. In Matulic, we considered the circum-
16886 TRACHSEL v. ROGERS TERMINAL
stances under which it is “unfair or unreasonable” to calculate
a claimant’s average weekly wage in accordance with section
910(a) as opposed to section 910(c). Id. at 1056. Section
910(a) presumptively applies when calculating average
weekly wages under the LHWCA. However, if sections
910(a) and (b) cannot “reasonably and fairly be applied,” the
ALJ looks to the “catch-all” provision of § 910(c). 33 U.S.C.
§ 910(c). It allows the ALJ to consider not only the claimant’s
previous earnings, but also earnings of employees in the same
or similar class as the claimant and other employment by
which the claimant may have generated income. Id.Trachsel focuses on the following passage in Matulic:
[W]e conclude, as a matter of law, that a worker’s
receipt in future years of disability benefits com-
puted on the basis of 18% more days (including
vacation, holiday, and sick days) than he actually
worked in the measuring year is not sufficient basis
to find the § 910(a) presumption rebutted. Our con-
clusion is supported by the humanitarian purposes of
the LHWCA and by our mandate to construe broadly
its provisions so as to favor claimants in the resolu-
tion of benefits cases.
154 F.3d at 1057 (emphasis added). According to Trachsel,
the emphasized phrase “actually worked” supports his conten-
tion that only days actually worked, as opposed to days for
which an employee is paid, should constitute days employed
under section 910(a). But the critical issue in Matulic was
when section 910(a) should be applied, not what days consti-
tute “days when so employed.” Matulic’s use, in passing, of
the phrase “actually worked” thus sheds little light on the
present question.
The BRB found the Fifth Circuit’s reasoning in Ingalls
Shipbuilding, Inc. v. Wooley, 204 F.3d 616, 618 (5th Cir.
2000), persuasive. Wooley considered whether vacation days
TRACHSEL v. ROGERS TERMINAL 16887
constitute days employed under section 910(a). In Wooley, the
employer had a policy of allowing workers to either take
vacation days or sell them back to the employer. Id. When
days were “sold back,” the employee would receive the vaca-
tion pay as a lump sum. Id. The Fifth Circuit concluded that
the ALJ should be charged with making findings as to
whether particular vacation payments constitute a “day
worked” or as “additional compensation to be added to [the
worker’s] annual wage.” Id. That is, where compensation rep-
resents a day worked, it constitutes a “day so employed”
under section 910(a). Additional compensation and benefits
not tied to a particular date, however, are not counted as a day
employed. This distinction, wrote the court in Wooley, serves
section 910(a)’s goal of a “theoretical approximation of what
a claimant could ideally have been expected to earn in the
year prior to his injury.” Id. (internal quotation marks and
citation omitted). That approximation includes what the
claimant would have earned had he worked every available
work day in the year.
[3] Although Wooley concerned vacation pay instead of
holidays, it is closely analogous to this case. In Wooley, vaca-
tion days could be sold back and taken in a lump-sum pay-
ment, or alternatively could be used to receive pay on a
particular day that the employee chose not to work. Such
vacation days taken as a lump sum payment, in the words of
the ALJ in this case, “[do] not replace any actual work days.”
But the unworked vacation days should be included to serve
section 910(a)’s goal of a “theoretical approximation of what
a claimant could ideally have been expected to earn in the
year prior to his injury.” Wooley, 204 F.3d at 618. Similarly,
when an employee does not work and is paid for a particular
holiday, the holiday must be included to approximate what
Trachsel could theoretically have been expected to earn. Id.[4] Following Wooley, we conclude that a day should be
included as a “day [ ] . . . so employed” under section 910(a)
if the employee is paid for that day as if he actually worked
16888 TRACHSEL v. ROGERS TERMINAL
it. The BRB correctly adopted this rule. And the ALJ properly
applied it, concluding that Trachsel’s unworked paid holidays
counted as “work days” and should be counted as days
employed. Additionally, for those days where Trachsel
received vacation pay and also worked, the ALJ correctly
counted them only once.
Trachsel’s proposed method of calculation is also inappro-
priate in this case because it is inconsistent with how Trach-
sel’s post-injury wage earning capacity was determined.
Under 33 U.S.C. § 908(c)(21), an employee is compensated
for partial disability according to the difference between his
pre- and post-injury wage earning capacity. Initially, the ALJ
did not include unworked paid holidays as days worked in
calculating Trachsel’s post-injury earning capacity. But the
ALJ did include unworked paid holidays in the pre-injury cal-
culation. On reconsideration of the ALJ’s order, Trachsel
pointed out that the two results were inconsistent and argued
that paid holidays should be included in the post-injury calcu-
lation to be consistent with the ALJ’s pre-injury ruling. The
ALJ agreed, and included non-worked holidays in the divisor
when calculating Trachsel’s post-injury wage earning capac-
ity. Trachsel has sought review in this court of the pre-injury
ruling, but not the post-injury ruling. In other words, he now
seeks to create the exact inconsistency he encouraged the ALJ
to avoid.
CONCLUSION
The ALJ correctly concluded that unworked paid holidays
are not “days when so employed” under 33 U.S.C. § 910(a).
His Decision and Order and Supplemental Order are
AFFIRMED.