The Court of Appeals and the Board issued important published decisions this quarter.

In Berry v. Air Force Central Welfare Fund, an enforcement action in the district court per §18(a) seeking entry of judgment of orders of default, the employer paid all compensation, penalties, and interest before the district court entered judgment. The district judge then deemed the suit moot and entered an order of dismissal. On appeal the 9^th Circuit panel held full payment before securing “judicially sanctioned” relief rendered the action moot. Additionally, for purposes of §928(a), it equated “successful prosecution” with “prevailing party,” as interpreted in other fee shifting statutes, and concluded plaintiff was not a prevailing party and therefore was not entitled to attorney fees. Plaintiff-Appellants are likely to file a petition for rehearing en banc and argue “successful prosecution” and “prevailing party” are not equivalent, thereby entitling them to fees when unpaid compensation was paid, and, alternatively, the decision must be limited to enforcement actions in the district court because in other cases subject to §928(a), after payment, the claimant has a legitimate interest in obtaining a compensation order confirming entitlement to compensation. 

In Ahuna v. SSA Pacific, Inc., 2024 WL 3690902 (BRB 22-0373, 7/29/24), claimant worked or received holiday pay in lieu of working on 268 days. Claimant argued there should be no presumption to apply §10(a) when days so employed exceeded 260. Alternatively, claimant argued he received vacation pay equivalent to 18 to 20 days, and he had taken time off for vacation in May and December. 

The ALJ held §10(a) can be reasonably and fairly applied even though a §10(a) calculation resulted in a lower average wage than a 52 week average of earnings in the year before the injury, and there was insufficient evidence to prove claimant was absent, on vacation, on specific days. The Board affirmed regarding the average weekly wage disputes.

In the same claim, claimant had been accepting work off the mechanics board before his injury. After the injury he initially accepted work off the mechanics work but found this work too difficult and switched to lighter duty on the winch board, resulting in working fewer hours and receiving less pay based on a lower skill rate. The parties stipulated claimant changed boards to take a less physical job due to the injury. The ALJ did not award PPD because his average earnings after he returned to work on the mechanics board and then on the winch board exceeded his average weekly wage. Per §8(h), claimant’s wage earning capacity is claimant’s actual post-injury wages if they fairly and reasonably represent his earning capacity. The Board remanded because the ALJ recognized the parties’ stipulation but nevertheless calculated wage earning capacity based on earnings from the mechanics board and winch board. On remand the ALJ was instructed to explain if she accepted the stipulation or, if necessary, her reasons for deviating from the stipulation. (See also Lock v. Pasha Stevedoring & Terminals, LP, an unpublished decision that held the ALJ must decide if actual post injury earnings fairly and reasonably represent wage earning capacity.)