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U.S. Code as of:
01/19/04
Section 908. Compensation for disability
Compensation for disability shall be paid to the employee as
follows:
(a) Permanent total disability: In case of total disability
adjudged to be permanent 66 2/3 per centum of the average weekly
wages shall be paid to the employee during the continuance of such
total disability. Loss of both hands, or both arms, or both feet,
or both legs, or both eyes, or of any two thereof shall, in the
absence of conclusive proof to the contrary, constitute permanent
total disability. In all other cases permanent total disability
shall be determined in accordance with the facts.
(b) Temporary total disability: In case of disability total in
character but temporary in quality 66 2/3 per centum of the
average weekly wages shall be paid to the employee during the
continuance thereof.
(c) Permanent partial disability: In case of disability partial
in character but permanent in quality the compensation shall be 66
2/3 per centum of the average weekly wages, which shall be in
addition to compensation for temporary total disability or
temporary partial disability paid in accordance with subsection (b)
or subsection (e) of this section, respectively, and shall be paid
to the employee, as follows:
(1) Arm lost, three hundred and twelve weeks' compensation.
(2) Leg lost, two hundred and eighty-eight weeks' compensation.
(3) Hand lost, two hundred and forty-four weeks' compensation.
(4) Foot lost, two hundred and five weeks' compensation.
(5) Eye lost, one hundred and sixty weeks' compensation.
(6) Thumb lost, seventy-five weeks' compensation.
(7) First finger lost, forty-six weeks' compensation.
(8) Great toe lost, thirty-eight weeks' compensation.
(9) Second finger lost, thirty weeks' compensation.
(10) Third finger lost, twenty-five weeks' compensation.
(11) Toe other than great toe lost, sixteen weeks'
compensation.
(12) Fourth finger lost, fifteen weeks' compensation.
(13) Loss of hearing:
(A) Compensation for loss of hearing in one ear, fifty-two
weeks.
(B) Compensation for loss of hearing in both ears,
two-hundred weeks.
(C) An audiogram shall be presumptive evidence of the amount
of hearing loss sustained as of the date thereof, only if (i)
such audiogram was administered by a licensed or certified
audiologist or a physician who is certified in otolaryngology,
(ii) such audiogram, with the report thereon, was provided to
the employee at the time it was administered, and (iii) no
contrary audiogram made at that time is produced.
(D) The time for filing a notice of injury, under section 912
of this title, or a claim for compensation, under section 913
of this title, shall not begin to run in connection with any
claim for loss of hearing under this section, until the
employee has received an audiogram, with the accompanying
report thereon, which indicates that the employee has suffered
a loss of hearing.
(E) Determinations of loss of hearing shall be made in
accordance with the guides for the evaluation of permanent
impairment as promulgated and modified from time to time by the
American Medical Association.
(14) Phalanges: Compensation for loss of more than one phalange
of a digit shall be the same as for loss of the entire digit.
Compensation for loss of the first phalange shall be one-half of
the compensation for loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as
for a loss of the arm or leg; but, if amputated between the elbow
and the wrist or the knee and the ankle, shall be the same as for
loss of a hand or foot.
(16) Binocular vision or per centum of vision: Compensation for
loss of binocular vision or for 80 per centum or more of the
vision of an eye shall be the same as for loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits, or one or more phalanges of two or more digits, of a hand
or foot may be proportioned to the loss of use of the hand or
foot occasioned thereby, but shall not exceed the compensation
for loss of a hand or foot.
(18) Total loss of use: Compensation for permanent total loss
of use of a member shall be the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for
permanent partial loss or loss of use of a member may be for
proportionate loss or loss of use of the member.
(20) Disfigurement: Proper and equitable compensation not to
exceed $7,500 shall be awarded for serious disfigurement of the
face, head, or neck or of other normally exposed areas likely to
handicap the employee in securing or maintaining employment.
(21) Other cases: In all other cases in the class of
disability, the compensation shall be 66 2/3 per centum of the
difference between the average weekly wages of the employee and
the employee's wage-earning capacity thereafter in the same
employment or otherwise, payable during the continuance of
partial disability.
(22) In any case in which there shall be a loss of, or loss of
use of, more than one member or parts of more than one member set
forth in paragraphs (1) to (19) of this subsection, not amounting
to permanent total disability, the award of compensation shall be
for the loss of, or loss of use of, each such member or part
thereof, which awards shall run consecutively, except that where
the injury affects only two or more digits of the same hand or
foot, paragraph (17) of this subsection shall apply.
(23) Notwithstanding paragraphs (1) through (22), with respect
to a claim for permanent partial disability for which the average
weekly wages are determined under section 910(d)(2) of this
title, the compensation shall be 66 2/3 per centum of such
average weekly wages multiplied by the percentage of permanent
impairment, as determined under the guides referred to in section
902(10) of this title, payable during the continuance of such
impairment.
(d)(1) If an employee who is receiving compensation for permanent
partial disability pursuant to subsection (c)(1)-(20) of this
section dies from causes other than the injury, the total amount of
the award unpaid at the time of death shall be payable to or for
the benefit of his survivors, as follows:
(A) if the employee is survived only by a widow or widower,
such unpaid amount of the award shall be payable to such widow or
widower,
(B) if the employee is survived only by a child or children,
such unpaid amount of the award shall be paid to such child or
children in equal shares,
(C) if the employee is survived by a widow or widower and a
child or children, such unpaid amount of the award shall be
payable to such survivors in equal shares,
(D) if there be no widow or widower and no surviving child or
children, such unpaid amount of the award shall be paid to the
survivors specified in section 909(d) of this title (other than a
wife, husband, or child); and the amount to be paid each such
survivor shall be determined by multiplying such unpaid amount of
the award by the appropriate percentage specified in section
909(d) of this title, but if the aggregate amount to which all
such survivors are entitled, as so determined, is less than such
unpaid amount of the award, the excess amount shall be divided
among such survivors pro rata according to the amount otherwise
payable to each under this subparagraph.
(2) Notwithstanding any other limitation in section 909 of this
title, the total amount of any award for permanent partial
disability pursuant to subsection (c)(1)-(20) of this section
unpaid at time of death shall be payable in full in the appropriate
distribution.
(3) An award for disability may be made after the death of the
injured employee. Except where compensation is payable under
subsection (c)(21) of this section if there be no survivors as
prescribed in this section, then the compensation payable under
this subsection shall be paid to the special fund established under
section 944(a) of this title.
(e) Temporary partial disability: In case of temporary partial
disability resulting in decrease of earning capacity the
compensation shall be two-thirds of the difference between the
injured employee's average weekly wages before the injury and his
wage-earning capacity after the injury in the same or another
employment, to be paid during the continuance of such disability,
but shall not be paid for a period exceeding five years.
(f) Injury increasing disability:
(1) In any case in which an employee having an existing
permanent partial disability suffers injury, the employer shall
provide compensation for such disability as is found to be
attributable to that injury based upon the average weekly wages
of the employee at the time of the injury. If following an injury
falling within the provisions of subsection (c)(1)-(20) of this
section, the employee is totally and permanently disabled, and
the disability is found not to be due solely to that injury, the
employer shall provide compensation for the applicable prescribed
period of weeks provided for in that section for the subsequent
injury, or for one hundred and four weeks, whichever is the
greater, except that, in the case of an injury falling within the
provisions of subsection (c)(13) of this section, the employer
shall provide compensation for the lesser of such periods. In all
other cases of total permanent disability or of death, found not
to be due solely to that injury, of an employee having an
existing permanent partial disability, the employer shall provide
in addition to compensation under subsections (b) and (e) of this
section, compensation payments or death benefits for one hundred
and four weeks only. If following an injury falling within the
provisions of subsection (c)(1)-(20) of this section, the
employee has a permanent partial disability and the disability is
found not to be due solely to that injury, and such disability is
materially and substantially greater than that which would have
resulted from the subsequent injury alone, the employer shall
provide compensation for the applicable period of weeks provided
for in that section for the subsequent injury, or for one hundred
and four weeks, whichever is the greater, except that, in the
case of an injury falling within the provisions of subsection
(c)(13) of this section, the employer shall provide compensation
for the lesser of such periods.
In all other cases in which the employee has a permanent
partial disability, found not to be due solely to that injury,
and such disability is materially and substantially greater than
that which would have resulted from the subsequent injury alone,
the employer shall provide in addition to compensation under
subsections (b) and (e) of this section, compensation for one
hundred and four weeks only.
(2)(A) After cessation of the payments for the period of weeks
provided for herein, the employee or his survivor entitled to
benefits shall be paid the remainder of the compensation that
would be due out of the special fund established in section 944
of this title, except that the special fund shall not assume
responsibility with respect to such benefits (and such payments
shall not be subject to cessation) in the case of any employer
who fails to comply with section 932(a) of this title.
(B) After cessation of payments for the period of weeks
provided for in this subsection, the employer or carrier
responsible for payment of compensation shall remain a party to
the claim, retain access to all records relating to the claim,
and in all other respects retain all rights granted under this
chapter prior to cessation of such payments.
(3) Any request, filed after September 28, 1984, for
apportionment of liability to the special fund established under
section 944 of this title for the payment of compensation
benefits, and a statement of the grounds therefore, shall be
presented to the deputy commissioner prior to the consideration
of the claim by the deputy commissioner. Failure to present such
request prior to such consideration shall be an absolute defense
to the special fund's liability for the payment of any benefits
in connection with such claim, unless the employer could not have
reasonably anticipated the liability of the special fund prior to
the issuance of a compensation order.
(g) Maintenance for employees undergoing vocational
rehabilitation: An employee who as a result of injury is or may be
expected to be totally or partially incapacitated for a
remunerative occupation and who, under the direction of the
Secretary as provided by section 939(c) of this title, is being
rendered fit to engage in a remunerative occupation, shall receive
additional compensation necessary for his maintenance, but such
additional compensation shall not exceed $25 a week. The expense
shall be paid out of the special fund established in section 944 of
this title.
(h) The wage-earning capacity of an injured employee in cases of
partial disability under subsection (c)(21) of this section or
under subsection (e) of this section shall be determined by his
actual earnings if such actual earnings fairly and reasonably
represent his wage-earning capacity: Provided, however, That if the
employee has no actual earnings or his actual earnings do not
fairly and reasonably represent his wage-earning capacity, the
deputy commissioner may, in the interest of justice, fix such
wage-earning capacity as shall be reasonable, having due regard to
the nature of his injury, the degree of physical impairment, his
usual employment, and any other factors or circumstances in the
case which may affect his capacity to earn wages in his disabled
condition, including the effect of disability as it may naturally
extend into the future.
(i)(1) Whenever the parties to any claim for compensation under
this chapter, including survivors benefits, agree to a settlement,
the deputy commissioner or administrative law judge shall approve
the settlement within thirty days unless it is found to be
inadequate or procured by duress. Such settlement may include
future medical benefits if the parties so agree. No liability of
any employer, carrier, or both for medical, disability, or death
benefits shall be discharged unless the application for settlement
is approved by the deputy commissioner or administrative law judge.
If the parties to the settlement are represented by counsel, then
agreements shall be deemed approved unless specifically disapproved
within thirty days after submission for approval.
(2) If the deputy commissioner disapproves an application for
settlement under paragraph (1), the deputy commissioner shall issue
a written statement within thirty days containing the reasons for
disapproval. Any party to the settlement may request a hearing
before an administrative law judge in the manner prescribed by this
chapter. Following such hearing, the administrative law judge shall
enter an order approving or rejecting the settlement.
(3) A settlement approved under this section shall discharge the
liability of the employer or carrier, or both. Settlements may be
agreed upon at any stage of the proceeding including after entry of
a final compensation order.
(4) The special fund shall not be liable for reimbursement of any
sums paid or payable to an employee or any beneficiary under such
settlement, or otherwise voluntarily paid prior to such settlement
by the employer or carrier, or both.
(j)(1) The employer may inform a disabled employee of his
obligation to report to the employer not less than semiannually any
earnings from employment or self-employment, on such forms as the
Secretary shall specify in regulations.
(2) An employee who -
(A) fails to report the employee's earnings under paragraph (1)
when requested, or
(B) knowingly and willfully omits or understates any part of
such earnings,
and who is determined by the deputy commissioner to have violated
clause (A) or (B) of this paragraph, forfeits his right to
compensation with respect to any period during which the employee
was required to file such report.
(3) Compensation forfeited under this subsection, if already
paid, shall be recovered by a deduction from the compensation
payable to the employee in any amount and on such schedule as
determined by the deputy commissioner.
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