AVERAGE WEEKLY WAGE UNDER THE LONGSHORE ACT (AWW)
Under the LHWCA, the amount of your weekly compensation benefits are based upon your ‘average weekly wage’ (AWW) as defined by the Longshore Act. Your AWW is typically calculated as follows.
First, if the employee has 52-continuous weeks of earnings with the employer at the time of the injury, then the last 52 weeks of earnings are used to calculate the AWW. In doing so, the last 52 weeks of earnings are simply divided by 52 and this calculation provides the AWW. The compensation rate for the injured person is then 66 percent of the AWW amount.
Alternatively, and only if 52 weeks of prior earnings are not available with the same employer, the Longshore Act will look to § 910(b) or § 910(c). Under § 910(b), the AWW of a “similar class of employee” is used as the injured person’s AWW. In other words, the Department of Labor will look to one of your co-employee’s 52 weeks of earnings prior to your injury as your basis for an AWW. Or, under § 910(c) often the Department of Labor will take the earnings you actually made during the weeks prior to your injury and divide that amount by the number of weeks you worked prior to your injury. For example if you had been employed for a period of only 30 weeks prior to your injury, under § 910(c) the Department of Labor will very often simply take the amount of wages you earned during the 30-week period and divide it by 30 to calculate your AWW at the time of your injury. However this is generally considered an “exception” to the 52-week requirement for an AWW.
In our experience the Department of Labor will typically take your actual 52 weeks of earnings with the same employer if you worked for the employer continuously for 52 weeks prior to your injury. Alternatively, the Department of Labor will take your actual 52 weeks of earnings (with the same employer or even different employers as long s the employment was in the same general job category) and divided that by 52 weeks. As a final calculation, if you cannot satisfy a complete 52 weeks with the same employer or 52 weeks in the same job category prior to your injury, the Department of Labor will then look to the actual number of weeks you worked with your Longshore employer prior to your injury and divide your total wages by that amount of weeks.
Generally overtime pay is included in performing an AWW calculation. In contrast, fringe benefits including contributions made to retirement, medical, disability or other benefit plans are generally not included in calculating an AWW.