                   Case: 11-10033          Date Filed: 10/30/2012   Page: 1 of 18


                                                                                    [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-10033
                                      ________________________

                             D.C. Docket No. 3:09-cv-00240-HES-JRK

BERNARD D. BOROSKI,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellant,



                                                 versus

DYNCORP INTERNATIONAL,
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA/AIG WORLDSOURCE,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

llllllllllllllllllllllllllllllllllllllll                             Defendants - Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (October 30, 2012)

          ON REMAND FROM THE UNITED STATES SUPREME COURT
                  Case: 11-10033    Date Filed: 10/30/2012      Page: 2 of 18

Before PRYOR and EDMONDSON, Circuit Judges, and HOPKINS,* District
Judge.

HOPKINS, District Judge:

       This case is on remand from the Supreme Court for further consideration in

light of Roberts v. Sea-Land Services, Inc., ___ U.S. ___, 132 S. Ct. 1350 (2012).

The Roberts decision conclusively answers one issue in this appeal, and the Roberts

opinion offers some guidance to answer the other issue. Accordingly, we affirm the

district court.

I.     BACKGROUND

       A.     The Initial Panel Decision in this Appeal

       The facts and procedural history of this appeal are set forth in our earlier

opinion, Boroski v. DynCorp International, 662 F.3d 1197, 1198–1200 (11th Cir.

2011) (hereinafter Boroski I). We need not recount them here.

       Additionally, we need not discuss at length the statutory framework at issue

here. We earlier described the content and structure of the Longshore and Harbor

Workers’ Compensation Act (the “Act”), 33 U.S.C. §§ 901–950 (2006), as extended

by the Defense Base Act, 42 U.S.C.§§ 1651–55 (2006). See Boroski, 662 F.3d at

1200–02. And, the Supreme Court’s opinion in Roberts also explains the Act’s


       *
          Honorable Virginia Emerson Hopkins, United States District Judge for the Northern
District of Alabama, sitting by designation.

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operation. See Roberts, 132 S. Ct. at 1354–55. Therefore, we describe the Act only

briefly.

       The Act provides disability benefits to covered employees, and sets maximum

and minimum benefit payments. See 33 U.S.C. § 906(b). The amount of these

payments are determined in reference to the national average weekly wage. See id.

The national average weekly wage is calculated after June 1 of each year, and applies

to the period from October 1 of that year to September 30 of the next year. See 33

U.S.C. § 906(b)(3). Section 906(c) provides that determinations of the national

average weekly wage:

       . . . shall apply to employees or survivors currently receiving
       compensation for permanent total disability or death benefits during
       such period, as well as those newly awarded compensation during such
       period.

33 U.S.C. § 906(c) (2006). Thus, the amount of a disabled employee’s benefit

payment depends on which year’s national average weekly wage is used to calculate

that payment.

       Additionally, for certain disabled employees, the Act provides for annual

increases in their benefit payment amounts. See 33 U.S.C. § 910(f). For example,

Section 910(f) provides that persons who are permanently and totally disabled shall

receive a yearly increase in relation to the increase in the national average weekly



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wage. Id. This section caps any increase at five percent. Id.

      In his initial brief, Boroski made two arguments. First, he contended that the

phrase “newly awarded compensation” means the actual entry of a compensation

award. See Appellant’s Br. at 15. Because Boroski’s compensation award was

entered in 2008 (six years after he became disabled), he contended that the 2008

national average weekly wage should determine the size of his disability benefit

payments for each year from 2002 to 2008. Second, Boroski contended that a court

would reach the same result under the “currently receiving compensation” clause.

Boroski argued that “currently receiving compensation” means the time the

compensation is actually received. Boroski did not receive any payments until 2008.

Thus, he claimed that the 2008 national average weekly wage should determine the

size of his benefit payments under either clause.

      In Boroski I, we agreed with Boroski’s first argument. We followed the Fifth

Circuit’s decision in Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir.

1997), and held that “newly awarded compensation” means the formal entry of a

compensation order. See Boroski, 662 F.3d at 1208, 1214–15. We noted that the

Ninth Circuit reached a different conclusion in Roberts v. Director, Office of

Workers’ Compensation Programs, 625 F.3d 1204, 1208 (9th Cir. 2010) (holding that

“newly awarded compensation” means “newly entitled to compensation”), but we

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rejected their position. See Boroski, 662 F.3d at 1211–12.

      Our decision in Boroski I did not address Boroski’s second argument,

concerning the “currently receiving compensation” clause.

      B.     The Supreme Court’s Decision in Roberts v. Sea-Land Services, Inc.

      After we handed down our opinion in Boroski I ,but before the mandate issued,

Defendants moved to stay. They explained that the Supreme Court had recently

granted certiorari in Roberts to address the “newly awarded” clause. We agreed, and

stayed our mandate in Boroski I pending the Supreme Court’s decision of Roberts.

See Order Staying Mandate, Boroski v. DynCorp Int’l, No. 11-10033 (11th Cir. Dec.

14, 2011). Defendants then filed their own petition for certiorari.

      In Roberts, the Supreme Court agreed with the Ninth Circuit, and held that

“newly awarded compensation” in § 906(c) means newly entitled to compensation.

The Court first determined that the phrase “newly awarded compensation” is

ambiguous when viewed in isolation. The Court acknowledged that the plaintiff’s

(and Boroski’s) contention—i.e., “award” means a formal compensation award—is

“appealing.” Roberts, 132 S. Ct. at 1356. But, the Court also noted that “award” can

mean “grant” or “confer or bestow upon.” Id. (citations omitted). The Court then

examined the whole statute and concluded that “in the context of the [Act’s]

comprehensive, reticulated regime for worker benefits—in which § 906 plays a

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pivotal role—‘awarded compensation’ is much more sensibly interpreted to mean

‘statutorily entitled to compensation because of disability.’” Id. at 1357.

      The Court listed several reasons for its conclusion. First, the Court noted that,

if “newly awarded compensation” means a formal compensation order, the Act will

not work as Congress intended. According to the Court, the maximum and minimum

caps on disability payment amounts in § 906(b) “appl[y] globally, to all disability

claims.” Id. at 1358. However, these caps only work if § 906(c) “applies globally”

as well. Id. Yet, accepting the plaintiff’s (and Boroski’s) position on the “newly

awarded compensation” clause would make § 906(c) irrelevant in all but a few

instances as, in most cases, the employer pays benefits voluntarily and no formal

compensation award is ever entered. Id. The court expressly rejected as unsound the

plaintiff’s suggestion that a formal award should issue in every case. Id.

      Second, the Court said its interpretation furthers the Act’s goal of

compensating disability, “defined as incapacity because of injury to earn the wages

which the employee was receiving at the time of injury.” Roberts, 132 S. Ct. at 1359

(citing 33 U.S.C. § 902(10)) (internal quotation marks omitted). On the other hand,

the plaintiff’s (and Boroski’s) position would treat similarly situated employees

differently. Id. As the Court noted, “two employees who earn the same salary and

suffer the same injury on the same day could be entitled to different rates of

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compensation based on the happenstance of their obtaining orders in different fiscal

years.” Id.

      Third, the Court said its interpretation would discourage gamesmanship.

Conversely, the plaintiff’s (and Boroski’s) position would strongly encourage

employees to delay the entry of a formal compensation award to a later year. The

court declined to “reward employees with windfalls for initiating unnecessary

administrative proceedings, while simultaneously punishing employers who have

complied fully with their statutory obligations.” Id. at 1360.

      Finally, the Court expressly rejected the plaintiff’s counterargument that

“award” in other provisions of the Act means a formal compensation award. The

Court acknowledged that it normally presumes that Congress intended identical

words to have the same meaning. Still, the Court found the presumption overcome

“because several of the provisions of the Act would make no sense if ‘award’ were

read as [the plaintiff] proposes.” Id.

      After deciding Roberts, the Supreme Court granted the Defendants’ petition for

certiorari, vacated Boroski I, and remanded for further consideration in light of

Roberts. Director, Office of Workers' Compensation Programs, Department of Labor

v. Boroski, 132 S.Ct. 2449 (2012).

II.   REMAINING ISSUES ON APPEAL AND CONTENTIONS OF THE

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      PARTIES

      In Roberts, the Supreme Court conclusively decided the first issue in this

appeal. In fact, Boroski concedes as much. See Supplemental Brief for Petitioner-

Appellant at 3. But, neither this court in Boroski I nor the Supreme Court in Roberts

addressed Boroski’s second argument based on the “currently receiving

compensation” clause. Therefore, this issue remains open.

      Moreover, this issue is squarely before us. Even assuming that Boroski’s

benefits for 2002 are governed by the “newly awarded clause,” the amount of

Boroski’s benefit payments for each year after he became disabled (2003–2007) must

be determined under the “currently receiving” clause. As the Director for the Office

of Workers’ Compensation Programs explained in his opening brief to this court,

“[b]ecause Boroski was being compensated at the maximum rate, his annual benefit

increases (for as long as his calculated compensation rate remains above the

maximum rate) were the result of section 6(c)’s ‘currently receiving’ clause rather

than [33 U.S.C. § 910(f)].” Appellee Brief for Director, Office of Workers’

Compensation Programs at 18 n.11.

      The parties have filed supplemental briefs on this issue. Boroski continues to

contend that “currently receiving” means actual physical receipt. He argues that

interpreting this phrase to mean “currently entitled to” would do violence to the plain

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language of the statute. Supplemental Brief for Petitioner-Appellant at 8.

      Furthermore, Boroski contends that § 906(c) creates two different

compensation schemes: one for individuals who are totally and permanent disabled

and one for all other forms of disability. The “currently receiving” clause expressly

limits itself to those who are totally and permanently disabled. See 33 U.S.C.

§ 906(c) (“[National average weekly wage determinations] shall apply to

employees . . . currently receiving compensation for permanent total

disability . . . during such period.”) (emphasis added). Boroski contends, therefore,

that the “newly awarded” clause, which is not so limited, does not apply to persons

who are totally and permanently disabled. Because the “newly awarded clause”

applies to one group of individuals and the “currently receiving” clause applies to a

different group, Boroski argues there is no problem with interpreting the two clauses

differently. In fact, he says the plain language of the statute shows that Congress

intended to do just that. Those who are not totally and permanently disabled will

have their benefits determined according to the year they became entitled to them.

Conversely, individuals who are totally and permanently disabled should have their

benefits determined according to the time they “currently” (meaning actually) receive

them. Additionally, Boroski contends that this interpretation would avoid the

disparate treatment concern the Supreme Court identified in Roberts. See Roberts,

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132 S. Ct. at 1359–60.

       Defendants respond that “currently receiving compensation,” read in context,

means currently entitled to compensation. Defendants acknowledge that their

position “gives little to the distinction between the words ‘awarded’ and ‘receiving,’”

but nonetheless contend their position is more consistent with the Act as a whole. See

Supplemental Brief of the Director, Office of Workers’ Compensation Programs at

37 (hereinafter “Director’s Supplemental Br.”). Because the arguments of the other

defendants largely mirror the arguments of the Director of the Office of Workers’

Compensation Programs (the “Director”), all references to the Director’s position or

interpretation also refer to the position of the other defendants.

III.   STANDARD OF REVIEW

       We review questions of “pure statutory interpretation” de novo. Burlison v.

McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006).

IV.    ANALYSIS

       We begin where the Supreme Court began in Roberts. We consider whether

the phrase “currently receiving compensation” is “plain and unambiguous . . . with

regard to the particular dispute in [this] case.” Robinson v. Shell Oil Co., 519 U.S.

337, 340, 117 S. Ct. 843, 846 (1997). We agree with Boroski that “to receive”

usually means “to take in one’s hand, or into one’s possession. ” XIII Oxford English

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Dictionary 314 (2d ed., 1989); see also Merriam-Webster’s Collegiate Dictionary 972

(10th ed., 2002) (“to come into possession.”). But “to receive” can also mean “to

permit onself to be the object of (some action, etc.); to allow (something) to be done

to, or (some quality, etc.) to be conferred on, oneself.” XIII Oxford English

Dictionary 314 (2d ed., 1989) (emphasis added); see also Webster’s Third New

International Dictionary 1894 (2002) (“to be placed under the burden, charge, or

constraint of: be made subject to”). This second meaning is similar to the meaning

of “award” that the Supreme Court adopted in Roberts. Further, we must examine the

alternative meanings of “to receive” in the context of the overall statutory scheme.

See Roberts, 132 S. Ct. at 1357 (“Statutory language . . . cannot be construed in a

vacuum. It is a fundamental canon of statutory construction that the words of a

statute must be read in their context and with a view to their place in the overall

statutory scheme.”) (internal quotation marks omitted).

      For the following reasons, we hold that “currently receiving compensation” in

§ 906(c) means “currently entitled to compensation.”

      A.     The Director’s Position Harmonizes the “Currently Receiving” and
             “Newly Awarded” Clauses of § 906(c)

      Boroski contends that the “currently receiving” and “newly awarded” clauses

of § 906(c) create two different compensatory schemes: one focused on actual receipt,



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and one focused on entitlement. This argument turns on his assertion that the “newly

awarded” clause does not apply to persons with total, permanent disability. We reject

this assertion.

      As the Director points out, every person entitled to benefits under the

act—including a person who is totally and permanently disabled—is “newly

awarded” benefits at some point. Director’s Supplemental Br. at 33. The “newly

awarded” clause does not exclude totally and permanently disabled persons from its

reach. See 33 U.S.C. § 906(c) (“Determinations under subsection (b)(3) of this

section with respect to a period shall apply to . . . those newly awarded compensation

during such period.”). The Supreme Court acknowledged as much in Roberts when

it said, “the [statutory maximum] cap [in § 906(b)(1)] functions as Congress intended

only if § 906(c) applies globally, to all [disability claims].” Roberts, 132 S. Ct. at

1358. Thus, the “newly awarded” clause applies to Boroski. Furthermore, it dictates

that his benefits for 2002—the year he became entitled to them—be calculated in

reference to the 2002 national average weekly wage. See Roberts, 132 S. Ct. at 1363.

      Because we reject Boroski’s assertion that the “newly awarded” clause does not

apply to him, we also reject his argument that § 906(c) creates two different

compensatory schemes. Boroski contends that the “newly awarded” clause focuses

on a claimant’s entitlement to benefits while the “currently receiving” clause focuses

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on a claimant’s actual receipt of benefits. This interpretation would create a conflict

between the two clauses. Using this case as an example, Boroski’s employer would,

following Roberts, apply the “newly awarded” clause and calculate Boroski’s weekly

benefit amount for 2002 using the 2002 national average weekly wage. Because

Boroski is entitled to the maximum rate under § 906(b)(1), his weekly benefit amount

for 2002 would be $966.08. See Dep’t of Labor, Division of Longshore and Harbor

Worker’s        Compensation           (DLHWC),           NAWW          Information,

http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm (last visited on October 22, 2012).

If we accepted Boroski’s argument, however, the “currently receiving” clause would

also apply to him, and his employer would be required to calculate his 2002 weekly

benefit payment using the maximum rate for 2008; thus, his weekly benefit amount

would be $1,160.36. Id. As a result, for the year 2002, the two clauses would direct

two different and irreconcilable weekly benefit payment amounts. Further, the Act

provides no guidance regarding which amount Boroski’s employer should pay.

Therefore, adopting Boroski’s interpretation would violate the black letter rule of

statutory construction that “a court must . . . interpret [a] statute as a symmetrical and

coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.”

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120

S. Ct. 1291, 1301 (2000) (internal citations and quotation marks omitted).

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      Conversely, the Director’s interpretation harmonizes the two clauses. By

interpreting currently receiving” to mean “currently entitled to,” the two clauses will

result in only one benefit payment amount for a claimant’s first year of disability.

Because the Director’s interpretation avoids the conflict Boroski’s interpretation

would create, his position is the more sensible one.

      B.       The Director’s Position Is More Consistent with § 910(f).

      Section 910(f) provides for annual increases in benefit payments to persons

who are totally and permanently disabled. See 33 U.S.C. § 910(f). These increases

are tied to the yearly increase in the national average weekly wage, and capped at five

percent. Id.

      Under the Director’s interpretation, the “currently receiving” clause of § 906(c)

produces a similar result as § 910(f). Each year, a totally and permanently disabled

person’s benefit payment amount to whom the clause applies will increase at a rate

equal to the increase in the national average weekly wage.

      The result is also consistent with the Act’s goal to compensate disability: the

compensation to be based on an employee’s wages “at the time of injury.” See

Roberts, 132 S. Ct. at 1359 (emphasis in original). A totally and permanently

disabled employee receives compensation to replace the wages he was earning at the

time he became disabled, and a cost-of-living increase each year thereafter, but no

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more.

        In contrast to the consistency achieved by the Director’s interpretation,

Boroski’s interpretation of § 906(c)’s “currently receiving” clause would produce a

result wholly different from § 910(f) and inconsistent with the Act’s goal. Rather

than gradually increasing benefit payments to maintain the value of an injured

employee’s wages, determined “at the time of injury,” employers who first pay

benefits to an injured employee in a year other than the year of injury would pay all

past due payments based on the national average weekly wage for the year in which

the first payment is made. This calculation would effectively give the injured

employee a raise to the later year’s national average weekly wage, and would make

that raise retroactive to the date of his disability. This result is incongruous with

§ 910(f), which contemplates a gradual increase in benefit payment amounts for

claimants who are totally and permanently disabled. Thus, we believe that the

Director’s interpretation is the one which is more consistent with the Act’s

“comprehensive, reticulated regime for worker benefits.” Roberts, 132 S. Ct. at 1357.

        Boroski contends that Congress adopted his interpretation of the “currently

receiving” clause to encourage prompt payment of benefits. We disagree. A claimant

is clearly entitled to interest on each past due benefit payment. See Roberts, 132 S.

Ct. at 1363; see also Matulic v. Director, Office of Workers’ Compensation

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Programs, 154 F.3d 1052, 1059 (9th Cir. 1998) (pre-judgment interest is mandatory);

Sproull v. Director, Office of Workers’ Compensation Programs, 86 F.3d 895, 900

(9th Cir. 1996) (same). Interest payments adequately compensate an employee for

any delay in payment. See Roberts, 132 S. Ct. at 1363 (citing Sproull, 86 F.3d at

900). Additionally, these interest payments should discourage employers from

refusing to promptly pay legitimate claims. Moreover, under Boroski’s interpretation,

an injured employee whose disability payments begin in a year other than the year of

injury would receive both higher benefit payment amounts and interest from the date

that each such payment should have been paid. We see no reason to interpret the Act

in such a manner.

      C.     The Director’s Position Avoids the Disparate Treatment of Similarly
             Situated Claimants

      Finally, Boroski’s interpretation would treat similarly situated employees

differently. Under Boroski’s interpretation of the “currently receiving” clause,

claimants who receive payment years after they become disabled would receive, in

addition to interest, higher benefits for the same period of disability than claimants

who timely receive their benefits. For example, a person who, on the same day as

Boroski, suffered the same injury as Boroski, but who received benefit payments

beginning in 2002, would receive approximately $30,000 less than Boroski. See



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Appellant’s Br. at 8 n.2.

         Of course, Boroski is not similarly situated in one very important respect. He

had to wait six years to get paid. But, as noted in the preceding section, Boroski is

entitled to interest, which adequately compensates him for his employer’s delay. See

Roberts, 132 S. Ct. at 1363.

         Conversely, the Director’s position avoids this disparate treatment problem.

Under the Director’s interpretation, Boroski receives the same benefits as a similarly

situated employee who was first injured and who first received payment in 2002, and,

additionally, Boroski receives interest on all late payments, to compensate him for the

delay.

         In Roberts, the plaintiff’s interpretation of the “newly awarded” clause also

created a disparate treatment problem. See Roberts, 132 S. Ct. at 1359. In rejecting

the plaintiff’s interpretation, the Court reasoned that its alternative interpretation

avoided any disparate treatment. Id. at 1359–60. We do the same in adopting the

Director’s interpretation of the “currently receiving” clause.

V.       CONCLUSION

         In accordance with Roberts, we hold that “newly awarded compensation” in 33

U.S.C. § 906(c) means “newly entitled to compensation.” Further, for the foregoing

reasons, we hold that “currently receiving compensation” in 33 U.S.C. § 906(c)

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means “currently entitled to compensation.” Therefore, the decision of the district

court is AFFIRMED.




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