Current as of: February 2010 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 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.
(d)(1) The average weekly wages of an employee shall be one fifty-
second part of his average annual earnings.
(2) Notwithstanding paragraph (1), with respect to any claim
based on a death or disability due to an occupational disease for
which the time of injury (as determined under subsection (i) of
this section) occurs -
(A) within the first year after the employee has retired, the
average weekly wages shall be one fifty-second part of his
average annual earnings during the 52-week period preceding
retirement; or
(B) more than one year after the employee has retired, the
average weekly wage shall be deemed to be the national average
weekly wage (as determined by the Secretary pursuant to section
906(b) of this title) applicable at the time of the injury.
(e) If it be established that the injured employee was a minor
when injured, and that under normal conditions his wages should be
expected to increase during the period of disability the fact may
be considered in arriving at his average weekly wages.
(f) Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising
out of injuries subject to this chapter shall be increased by the
lesser of -
(1) a percentage equal to the percentage (if any) by which the
applicable national weekly wage for the period beginning on such
October 1, as determined under section 906(b) of this title,
exceeds the applicable national average weekly wage, as so
determined, for the period beginning with the preceding October
1; or
(2) 5 per centum.
(g) The weekly compensation after adjustment under subsection (f)
of this section shall be fixed at the nearest dollar. No adjustment
of less than $1 shall be made, but in no event shall compensation
or death benefits be reduced.
(h)(1) Not later than ninety days after October 27, 1972, the
compensation to which an employee or his survivor is entitled due
to total permanent disability or death which commenced or occurred
prior to October 27, 1972, shall be adjusted. The amount of such
adjustment shall be determined in accordance with regulations of
the Secretary by designating as the employee's average weekly wage
the applicable national average weekly wage determined under
section 906(b) of this title and (A) computing the compensation to
which such employee or survivor would be entitled if the disabling
injury or death had occurred on the day following October 27, 1972,
and (B) subtracting therefrom the compensation to which such
employee or survivor was entitled on October 27, 1972; except that
no such employee or survivor shall receive total compensation
amounting to less than that to which he was entitled on October 27,
1972. Notwithstanding the foregoing sentence, where such an
employee or his survivor was awarded compensation as the result of
death or permanent total disability at less than the maximum rate
that was provided in this chapter at the time of the injury which
resulted in the death or disability, then his average weekly wage
shall be determined by increasing his average weekly wage at the
time of such injury by the percentage which the applicable national
average weekly wage has increased between the year in which the
injury occurred and the first day of the first month following
October 27, 1972. Where such injury occurred prior to 1947, the
Secretary shall determine, on the basis of such economic data as he
deems relevant, the amount by which the employee's average weekly
wage shall be increased for the pre-1947 period.
(2) Fifty per centum of any additional compensation or death
benefit paid as a result of the adjustment required by paragraphs
(1) and (3) of this subsection shall be paid out of the special
fund established under section 944 of this title, and 50 per centum
shall be paid from appropriations.
(3) For the purposes of subsections (f) and (g) of this section
an injury which resulted in permanent total disability or death
which occurred prior to October 27, 1972, shall be considered to
have occurred on the day following such date.
(i) For purposes of this section with respect to a claim for
compensation for death or disability due to an occupational disease
which does not immediately result in death or disability, the time
of injury shall be deemed to be the date on which the employee or
claimant becomes aware, or in the exercise of reasonable diligence
or by reason of medical advice should have been aware, of the
relationship between the employment, the disease, and the death or
disability.Legislative History ________________________________________________________________________
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