On Petition for Review of a Final Order Of the Benefits Review Board
The opinion of the court was delivered by: Judge N.R. Smith
Argued and Submitted October 7, 2009-Portland, Oregon
Before: Diarmuid F. O'Scannlain and N. Randy Smith, Circuit Judges, and Ronald M. Whyte, Senior District Judge.*fn1
Concurrence by Judge O'Scannlain
N.R. SMITH, Circuit Judge:
Interest on past due disability payments under the Long-shore and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 US.C. § 901 et seq., is properly calculated as simple interest at the rate defined in 28 U.S.C. § 1961(a).
We have jurisdiction under 33 U.S.C. § 921(c), and we affirm the decision of the Department of Labor Benefits Review Board ("BRB" or "Board").
I. FACTUAL AND PROCEDURAL HISTORY
Arel Price ("Price") was injured by a falling ship-lashing-chain on October 2, 1991, while employed by Stevedoring Services of America, Inc. ("Stevedoring"). Price had surgery for his injury on April 22, 1992, and returned to work on November 24, 1992. Price worked from that day until July 2, 1998, when he stopped working on the advice of a physician.
Though Price's claims for his injury had not yet been formally adjudicated, Stevedoring paid Price temporary total disability workers' compensation payments of $676.89 per week from the date he was injured until January 4, 1992. Later, in 1997, Stevedoring also reimbursed Price's disability insurance carrier $21,206.00 for compensation due Price for his injury during the time period from January 4, 1992, until November 23, 1992.
Notwithstanding these payments, the parties disagreed concerning the proper amount of disability benefits. The Commissioner therefore referred the case to an Administrative Law Judge ("ALJ"). The ALJ subsequently determined Price's average weekly wage at the time of injury to be $333.87. Upon eventual appeal of that decision to the Ninth Circuit, we remanded Price's average weekly wage for reconsideration. See Stevedoring Servs. of Am., Inc. v. Price, Nos. 02-71207 & 02-71578, 2004 WL 1064126, at *2-3 (9th Cir. May 11, 2004).
On remand, Price challenged the interest calculation on his past due disability payments. He contended: 1) the interest rate defined in 26 U.S.C. § 6621 (the provision of the tax code defining the interest rate applicable to over- or under-payment of taxes) or, in the alternative, 2) annually compounded interest under 28 U.S.C. § 1961(b) should apply to his past due payments. After hearing argument, the ALJ first revised Price's average weekly wage to $1,198.09. Because two-thirds of Price's average weekly wage ($798.73) exceeded the fiscal year 1991 maximum compensation rate ($699.29 a week), see 33 U.S.C. § 906, the ALJ awarded Price compensation at the 1991 fiscal year maximum. The ALJ also awarded Price simple interest on past due compensation at the rate established in 28 U.S.C. § 1961(a).*fn1 28 U.S.C. § 1961(a) defines interest for post-judgment interest payable on United States district court judgments and does not directly apply to compensation under the LHWCA. However, the Board has used the rate defined in that section to ...