Rick J. Martin v. Sundial Marine Tug

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK J. M ARTIN,
Petitioner,
v.
SUNDIAL M ARINE TUG AND BARGE
W ORKS , I NCORPORATED ; SAIF
CORPORATION ; DIRECTOR, OFFICE OF
W ORKERS ’ COMPENSATION
PROGRAMS ,
Respondents.
No. 20-70147
BRB No.
19-0009
OPINION
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted June 7, 2021
Portland, Oregon
Filed September 2, 2021
Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
Circuit Judges, and Susan R. Bolton,* District Judge.
Opinion by Judge Hurwitz
* The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.

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SUMMARY**
Longshore and Harbor Workers’ Compensation Act
The panel denied a petition for review of a decision of
the Benefits Review Board (“BRB”) affirming an
administrative law judge’s award of benefits to claimant
under the Longshore and Harbor Workers’ Compensation
Act.
Under the Act, a benefits award is based on the
claimant’s “average weekly wage,” and the statute sets forth
three different formulas for determining the average weekly
wage. 33 U.S.C. § 910. At issue is whether claimant’s
average weekly wage should have been calculated under
§ 910(a) or § 910(c). § 910(a) provides that the “average
weekly wage is calculated by: 1) dividing the total earnings
of the claimant during the fifty-two weeks preceding the
injury by the number of days actually worked; 2) multiplying
that figure by either 260 or 300, depending on whether the
claimant worked a five- or six-day week . . .; and 3) dividing
that figure by fifty-two.” Matulic v. Dir. Off. Of Workers’
Comp. Programs, 154 F.3d 1052, 1056 (9th Cir. 1998). In
contrast, § 910(c) does not prescribe a fixed formula, and the
ALJ must consider the employee’s ability, willingness, and
opportunity to work with regard to “(1) the previous earnings
of the injured employee in the job at which the employee was
injured, and (2) previous earnings of similar employees, or
(3) other employment of the inured employee.” Palacios v.
Campbell Indus., 633 F.2d 840, 843 (9th Cir. 1980).
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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The panel held that claimant was not bound by his initial
stipulation that § 910(a) applied.
Claimant contended that using § 910(a) to determine the
average weekly wage for a five-day worker who worked 264
days during the relevant year violated the statutory scheme.
The panel held that this was an issue of first impression. The
§ 910(a) formula presumptively applies to calculating a five-
day workers’ average weekly wage, but the panel analyzed
whether the use of § 910(a) would be unreasonable or unfair
under the circumstances of the case. The panel held that the
statutory presumption was not rebutted as a matter of law
simply because § 910(a) would slightly underestimate
earning capacity because the claimant worked in excess of
260 days. The legislative history of the Act suggested that
Congress did not envision application of § 910(c) under
these circumstances. The use of § 910(a) in this case was
not the kind of “harsh result” that Congress sought to avoid
in enacting § 910(c). The panel concluded that the ALJ and
the BRB did not err in using the § 910(a) formula to calculate
claimant’s weekly wage.
The panel addressed the remaining issues in a
concurrently filed memorandum.
COUNSEL
Joshua T. Gillelan II (argued), Longshore Claimants’
National Law Center, Mitchellville, Maryland; Charles
Robinowitz, Law Office of Charles Robinowitz, Portland,
Oregon; for Petitioner.
James R. Babcock (argued), Babcock Holloway Caldwell &
Stires, Lake Oswego, Oregon, for Respondents.

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OPINION
HURWITZ, Circuit Judge:
Rick Martin applied for disability and medical benefits
under the Longshore and Harbor Workers’ Compensation
Act (the “Act”), 33 U.S.C. §§ 901–950, after injuring both
knees while working for Sundial Marine Tug & Barge
Works, Inc. After extended agency proceedings, the
Benefits Review Board (“BRB”) affirmed a decision of an
administrative law judge (“ALJ”) awarding Martin benefits
and relying on § 910(a) to calculate Martin’s average weekly
wage. This petition for review from Martin followed. We
have jurisdiction under 33 U.S.C. § 921(c) and we hold that
the ALJ did not err in applying § 910(a) to calculate Martin’s
average weekly wage at the time of injury.1
I
“We review BRB decisions for errors of law and for
adherence to the statutory standard governing the Board’s
review of the administrative law judge’s factual
determinations.” Todd Shipyards Corp. v. Black, 717 F.2d
1280, 1284 (9th Cir. 1983) (cleaned up). “The BRB must
accept the ALJ’s findings unless they are contrary to the law,
irrational, or unsupported by substantial evidence.” Id.
1 In a separate memorandum disposition filed contemporaneously
with this opinion, we address Martin’s challenge to the BRB decision
insofar as it denies reimbursement of certain medical expenses.

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M ARTIN V . SUNDIAL M ARINE TUG & BARGE W ORKS 5
II
A
Under the Act, a benefits award is based on the
claimant’s “average weekly wage.” 33 U.S.C. § 910. The
statute sets forth three different formulas for determining the
average weekly wage:
Except as otherwise provided in this chapter,
the average weekly wage of the injured
employee at the time of the injury shall be
taken as the basis upon which to compute
compensation and shall be determined as
follows:
(a) If the injured employee shall have
worked in the employment in which he
was working at the time of the injury,
whether for the same or another
employer, during substantially the whole
of the year immediately preceding his
injury, his average annual earnings shall
consist of three hundred times the
average daily wage or salary for a six-day
worker and two hundred and sixty times
the average daily wage or salary for a
five-day worker, which he shall have
earned in such employment during the
days when so employed.
(b) If the injured employee shall not have
worked in such employment during
substantially the whole of such year, his
average annual earnings, if a six-day
worker, shall consist of three hundred

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times the average daily wage or salary,
and, if a five-day worker, two hundred
and sixty times the average daily wage or
salary, which an employee of the same
class working substantially the whole of
such immediately preceding year in the
same or in similar employment in the
same or a neighboring place shall have
earned in such employment during the
days when so employed.
(c) If either of the foregoing methods of
arriving at the average annual earnings of
the injured employee cannot reasonably
and fairly be applied, such average annual
earnings shall be such sum as, having
regard to the previous earnings of the
injured employee in the employment in
which he was working at the time of the
injury, and of other employees of the
same or most similar class working in the
same or most similar employment in the
same or neighboring locality, or other
employment of such employee, including
the reasonable value of the services of the
employee if engaged in self-employment,
shall reasonably represent the annual
earning capacity of the injured employee.
Id.
At issue is whether Martin’s average weekly wage
should have been calculated under § 910(a) or § 910(c); the
parties agree that § 910(b) does not apply. The ALJ and the
BRB applied § 910(a), under which the

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average weekly wage is calculated by:
1) dividing the total earnings of the claimant
during the fifty-two weeks preceding the
injury by the number of days actually
worked; 2) multiplying that figure by either
260 or 300, depending on whether the
claimant worked a five- or six-day week (in
this case, five); and 3) dividing that figure by
fifty-two.
Matulic v. Dir., Off. of Workers’ Comp. Programs, 154 F.3d
1052, 1056 (9th Cir. 1998). In contrast, § 910(c) “does not
prescribe a fixed formula.” Id. Under that subsection, which
Martin claims should apply, the ALJ must “consider the
employee’s ability, willingness and opportunity to work,”
Palacios v. Campbell Indus., 633 F.2d 840, 843 (9th Cir.
1980) (cleaned up), with regard to “(1) the previous earnings
of the injured employee in the job at which the employee was
injured, and (2) previous earnings of similar employees, or
(3) other employment of the injured employee,” id. at 842.
B
Sundial made weekend work available on a voluntary
basis. Martin testified that he generally worked five days per
week but worked overtime on weekends when possible. The
parties initially stipulated to the use of § 910(a) before the
ALJ. But, in a reply brief filed after the record closed,
Martin’s counsel sought a wage determination under
§ 910(c) to account for days worked in excess of 260 after
“rechecking the calculations.”
The ALJ found that in the 52 weeks before his injury,
Martin had earned $47,498.41 and had worked 264 days
(including four days of overtime). Notwithstanding
Martin’s invocation of § 910(c), the ALJ used § 910(a) to

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calculate Martin’s average weekly wage, citing the
stipulation and noting that “[t]here is no requirement that a
5-day worker work exactly 260 days in the preceding year.”
On appeal, citing Stevedoring Services of America v.
Price, 382 F.3d 878 (9th Cir. 2004), the BRB affirmed the
ALJ’s use of § 910(a) because Martin had worked more than
75 percent of the available working days for a five-day
worker, but increased the average weekly wage to correct a
calculation error. The BRB also held that the ALJ “properly
held claimant to his stipulation that his average weekly wage
for his 2004 injuries should be calculated pursuant to Section
10(a), as that stipulation is not contrary to law.” The BRB
vacated a portion of the ALJ’s opinion treating a separate
issue and remanded for further consideration of that issue.
In a subsequent appeal, Martin renewed his objections to the
ALJ’s use of § 910(a) to calculate his average weekly wage,
and the BRB affirmed the ALJ’s calculation as law of the
case. This timely petition for review followed.
III
A
Sundial first argues that Martin is bound by his initial
stipulation that § 910(a) applies. Because whether § 910(a)
or (c) applies is a legal question, see Matulic, 154 F.3d
at 1057, we decline to find Martin bound by the stipulation.
See Sanford’s Est. v. Comm’r of Internal Rev., 308 U.S. 39,
51 (1939). The “policies underlying the exhaustion
doctrine” are satisfied here; the BRB determined that the
stipulation was “not contrary to law” only after concluding
on the merits that § 910(c) did not apply. See W. Radio
Servs., Co. v. Qwest Corp., 530 F.3d 1186, 1203 (9th Cir.
2008).

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M ARTIN V . SUNDIAL M ARINE TUG & BARGE W ORKS 9
B
Martin does not dispute that he was a five-day worker.
But he contends that using § 910(a) to determine the average
weekly wage of a five-day worker who worked 264 days
during the relevant year violates the statutory scheme.
As an initial matter, we reject both parties’ contentions
that our decisions in Matulic and Price resolve this question.
Matulic, upon which Price relies, held that § 910(a)
presumptively applies when a claimant works more than
75 percent of the 260-day measuring year for five-day
workers. Matulic, 154 F.3d at 1058. But, no prior Ninth
Circuit case addresses whether a five-day worker who
worked more than 260 days should have his average weekly
wage calculated under § 910(a). See, e.g., Matulic, 154 F.3d
at 1056 (claimant worked 82 percent of 260 working days);
Gen. Constr. Co. v. Castro, 401 F.3d 963, 976 (9th Cir.
2005) (77 percent); Price, 382 F.3d at 884 (76 percent).
Nor does Matulic resolve the issue now before us in
Martin’s favor. The holding in Matulic that § 910(a) could
be reasonably and fairly applied when a claimant “works
more than 75% of the workdays of the measuring year,”
154 F.3d at 1058, recognized that the Act is to be construed
“in favor of the worker” and that “some ‘overcompensation’
is built into the [the Act’s] system institutionally,” id.
at 1057. It thus found that using the statutory presumption
in § 910(a) for a five-day worker who had worked more than
75 percent of 260 days in the previous year “well within the
realm of theoretical or actual ‘overcompensation’ that
Congress contemplated.” Id. at 1058. But that does not
mean that § 910(a), whose formula employs a multiplier of
260 for five-day workers, does not apply whenever a five-
day worker works more than 260 days. Nor does the general
statement in Matulic that “the statutory formula may benefit

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the employer,” id. at 1057, compel a particular outcome
here. The portion of the statute Matulic referred to in making
that observation was § 906(b)(1), which contains a formula
that sets a ceiling for compensation for disability for a high-
earnings claimant at twice the applicable fiscal year’s
national average weekly wage. See id. at 1057 n.3. That
subsection is not implicated here. The question whether
§ 910(a) can “reasonably and fairly be applied,” id. § 910(c),
when a five-day worker works more than 260 days is thus
one of first impression.
We have stated that the § 910(a) formula “presumptively
applies” in calculating a five-day worker’s average weekly
wage. Trachsel v. Rogers Terminal & Shipping Corp.,
597 F.3d 947, 950 (9th Cir. 2010). Being a five-day worker
is not the end of the inquiry; we still must analyze whether
use of § 910(a) would be unreasonable or unfair under the
circumstances of the case before us. Matulic, 154 F.3d
at 1057; see also Tri-State Terminals, Inc. v. Jesse, 596 F.2d
752, 756 (7th Cir. 1979) (“Even if a claimant is engaged in
full-time employment, however, [910(a)] will not apply if
[it] can not reasonably and fairly be applied.”) (cleaned up).
There is a “high threshold,” however, that must be met to
overcome the statutory presumption. Matulic, 154 F.3d
at 1057.
We find the statutory presumption is not rebutted as a
matter of law simply because § 910(a) would slightly
underestimate earning capacity because the claimant worked
in excess of 260 days. The statute plainly contemplates some
inaccuracy in calculating the average weekly wage. See id.
(describing congressional intent to create “an efficient,” but
not “entirely accurate” method of calculating earning
capacity). And it does not provide that § 910(a) is
inapplicable if more than 260 days were worked. Nor does

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M ARTIN V . SUNDIAL M ARINE TUG & BARGE W ORKS 11
the fact that Martin worked 264 days by itself make use of
the § 910(a) formula unreasonable or unfair. Martin is
incorrect that the § 910(a) formula entirely fails to account
for his increased earnings, as the starting point for the
§ 910(a) calculation is the total amount of compensation
earned in the previous year.
The legislative history of the Act suggests that Congress
did not envision application of § 910(c) under these
circumstances. Prior to 1948, the Act included only a
formula employing a 300-day multiplier for six-day
workers. See S. REP . NO. 80-1315, at 6 (1948), as reprinted
in 1948 U.S.C.C.A.N. 1979, 1982. In 1948, responding to
the rise of five-day work weeks, Congress amended the Act
to provide a 260-day multiplier “so that the particular
provision can be made useful in the 5-day week
employments.” Id. Tellingly, in enacting this amendment,
Congress did not choose simply to discard a presumptive
multiplier for full-time employees in favor of the actual days
worked.
Congress also appears not to have envisioned application
of § 910(c) to a claimant who worked full-time for a single
employer during the previous year. The Senate Report
concerning the 1948 amendments indicates that § 910(c) is
intended for use where the “employment itself . . . does not
afford a full year of work”; where the work week is shorter
than 5 or 6 days; or where there is “seasonal, intermittent,
discontinuous, and like employment which affords less than
a full workyear or workweek.” 1948 U.S.C.C.A.N. at 1982.
The report also provides:
The measurement of an employee’s capacity
to earn should not be limited to his earnings
in the particular employment in which he was
engaged when injured, but should be gaged

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[sic] by what the employee is capable of
earning in all employments in which he was
employed during the year prior to injury,
otherwise harsh results necessarily follow.
Id. at 1983. None of the situations Congress spoke to are
present here. The use of § 910(a) in this case is thus not the
kind of “harsh result” Congress sought to avoid in enacting
§ 910(c). See 1 ROBERT FORCE & M ARTIN J. NORRIS , THE
LAW OF M ARITIME PERSONAL I NJURIES § 5:7 (5th ed. 2020)
(“Although 33 U.S.C.A. § 910(c) provides for unusual
situations, it should not be resorted to when the employee
has an established earnings record.”).
Martin emphasizes that we should “construe broadly [the
Act’s] provisions so as to favor claimants in the resolution
of benefits cases.” Price v. Stevedoring Servs. of Am.,
697 F.3d 820, 843 (9th Cir. 2012) (en banc). But that does
not mean that the claimant always wins. As the Supreme
Court has noted, the Act is “not a simple remedial statute
intended for the benefit of the workers,” but was instead
“designed to strike a balance between the concerns of the
longshoremen and harborworkers on the one hand, and their
employers on the other.” Morrison-Knudsen Constr. Co. v.
Dir., Off. of Workers’ Comp. Programs, 461 U.S. 624, 636
(1983). The Court has also stressed that the maxim that “the
statute at hand should be liberally construed to achieve its
purposes” does not provide courts the freedom to “add
features that will achieve the statutory ‘purposes’ more
effectively.” Dir., Off. of Workers’ Comp. Programs v.
Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122,
135–36 (1995) (cleaned up). Martin asks us to do just that,
effectively amend § 910 to add language providing that
§ 910(a) does not apply “if the claimant worked more than
260 days.”

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M ARTIN V . SUNDIAL M ARINE TUG & BARGE W ORKS 13
We are also mindful that the Act was designed to provide
for “efficient resolution of a class of private disputes.” Id.
at 131. The presumption that § 910(a)—whose fixed
multiplier serves “administrative convenience,” Matulic,
154 F.3d at 1057 (quoting Duncanson-Harrelson Co. v. Dir.,
Off. of Workers’ Comp. Programs, 686 F.2d 1336, 1342 (9th
Cir. 1982))—applies is a critical statutory element of that
program. We therefore hold that the ALJ and BRB did not
err in using the § 910(a) formula to calculate Martin’s
weekly wage.2
PETITION FOR REVIEW DENIED.
2 We do not address whether the use of § 910(a) would be
unreasonable if a nominal five-day worker worked substantially more
days than 260 or whether such a worker effectively becomes a six-day
worker.

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