Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs

TRASK, Circuit Judge: This court originally decided this case on September 14, 1982. Duncanson-Harrelson Co. v. Director (OWCP), 686 F.2d at 1336 (9th Cir.1982). The Supreme Court on June 10, 1983, granted a petition for writ of certiorari,-U.S.-, 103 S.Ct. 2446 , 77 L.Ed.2d 1329 (1983). The judgment was vacated and the case was remanded for further consideration in light of Morrison-Knudsen Construction Co. v. Director (OWCP), 461 U.S.-, 103 S.Ct. 2045 , 76 L.Ed.2d 194 (1983). In part V of our original decision we held that employer contributions to union pension and health funds were wages as defined in 33 U.S.C. § 902 (13). 686 F.2d at 1343 — 46. We determined that such contributions should have been included in calculating the decedent’s average annual wage. As the Benefits Review Board (BRB) had not included the employer contributions in the decedent’s wage calculation, we reversed its decision on that point. In Morrison-Knudsen the Supreme Court held unequivocally that employer contributions to union trust funds were not wages as defined in 33 U.S.C. § 902 (13). 461 U.S. at-, 103 S.Ct. at 2053 , 76 L.Ed.2d 194 . We are, therefore, compelled to vacate part V of our original decision and affirm in full the decision of the BRB.