�����Ƶ

(1) Whether the phrase “newly awarded compensation during such period” in the Longshore and Harbor Worker’s Compensation Act (“Act”) section 906(c) means, “those first entitled to compensation during such period,” regardless of when the compensation is awarded, and (2) whether the phrase “employees or survivors currently receiving compensation for permanent disability or death benefits during such period” in section 906(c) of the Act means those “entitled to such compensation during such period,” without reference to when the compensation was received).

Roberts slipped and fell in the course of his employment for Sea-Land Services in 2002. He injured his shoulder and cervical spine, which ultimately resulted in a permanent partial disability. Sea-Land’s insurer, Kemper, compensated Roberts in accordance with the Act until May 2005 at which time it disputed Robert’s claim and stopped making payments. An administrative law judge (ALJ) determined that Sea-Land was liable under the Act for Robert’s injuries and awarded further compensation. Roberts moved for reconsideration on the basis that the compensation ordered was improperly calculated. The ALJ denied reconsideration. Both Sea-Land and Roberts appealed to the Benefits Review Board. The Board adopted the rationale that “newly awarded compensation during such period” should be read to mean “entitled to compensation for disability beginning during such period.” Also, that “currently receiving,” as it relates to permanent total disability, should be read to mean “entitled to at the beginning of such period.” Roberts appealed and the Ninth Circuit affirmed the Board’s decision.

On appeal, Roberts argues that this is a case of statutory interpretation in which the language of the statute is clear. Additionally, Roberts argues that the decision of the court below is in direct conflict with not only decision of the Fifth Circuit in Wilkerson v. Ingalls Shipbuilding, Inc. but also with prior Supreme Court decisions.