In this quarter, there was one published decision, Woolum v. Arma Aviation. The Board held claimant was not disqualified from receiving PPD for an injury in Afghanistan when, after the injury, the United States Forces withdrew from Afghanistan, eliminating the availability of any work in Afghanistan. There was only one average weekly wage applicable to a claim, and post-injury events generally were not relevant in determining average weekly wage. Kubin v. Pro-Football, Inc., which seemed to adopt a two-tier concept of average weekly wage, was not relevant because neither party contested the ALJ’s decision to fashion separate awards.

In Dominguez v. Bethlehem Steel Corp., 59 BRBS 53 (2025), the Board held §21(a), governing appeals to the Benefits Review Board, was a claim-processing rule, subject to ordinary rules of waiver and forfeiture. In Ports America, Inc., an unpublished decision this quarter, it held equitable tolling could excuse an otherwise untimely appeal, but the litigant seeking equitable tolling had the burden to prove diligent pursuit of rights, prevented by extraordinary circumstances. Failure to notify the district director of a change of address did not constitute extraordinary circumstances warranted equitable tolling.

In Schindler v. Kellogg, Brown, and Root Services, an unpublished decision, the Board held that when calculating average weekly wage per §10(c), the ALJ was not limited to the wage actually earned during any single period if those wages did not fairly reflect earning capacity. Depending on the circumstances, the ALJ could consider prior earnings or wages of similarly situated employees.