(h)
(1) Not later than ninety days after October 27, 1972, the compensation to which an employee or his survivor is entitled due to total permanent disability or death which commenced or occurred prior to October 27, 1972, shall be adjusted. The amount of such adjustment shall be determined in accordance with regulations of the Secretary by designating as the employee’s average weekly wage the applicable national average weekly wage determined under section 906(b) of this title and (A) computing the compensation to which such employee or survivor would be entitled if the disabling injury or death had occurred on the day following October 27, 1972, and (B) subtracting therefrom the compensation to which such employee or survivor was entitled on October 27, 1972; except that no such employee or survivor shall receive total compensation amounting to less than that to which he was entitled on October 27, 1972. Notwithstanding the foregoing sentence, where such an employee or his survivor was awarded compensation as the result of death or permanent total disability at less than the maximum rate that was provided in this chapter at the time of the injury which resulted in the death or disability, then his average weekly wage shall be determined by increasing his average weekly wage at the time of such injury by the percentage which the applicable national average weekly wage has increased between the year in which the injury occurred and the first day of the first month following October 27, 1972. Where such injury occurred prior to 1947, the Secretary shall determine, on the basis of such economic data as he deems relevant, the amount by which the employee’s average weekly wage shall be increased for the pre-1947 period.
(2) Fifty per centum of any additional compensation or death benefit paid as a result of the adjustment required by paragraphs (1) and (3) of this subsection shall be paid out of the special fund established under section 944 of this title, and 50 per centum shall be paid from appropriations.
(3) For the purposes of subsections (f) and (g) an injury which resulted in permanent total disability or death which occurred prior to October 27, 1972, shall be considered to have occurred on the day following such date.
Amendments
1984—Subsec. (d). Pub. L. 98–426, § 10(a)(1), designated existing provisions as par. (1) and added par. (2).
Subsec. (f). Pub. L. 98–426, § 10(b), substituted “subject to this chapter” for “sustained after October 27, 1972,” and inserted “the lesser of—” after “by” in introductory language, designated balance of existing provisions as par. (1), substituted “; or” for a period at end of par. (1), and added par. (2).
Subsec. (i). Pub. L. 98–426, § 10(a)(2), added subsec. (i).
1972—Subsecs. (f) to (h). Pub. L. 92–576 added subsecs. (f) to (h).
1948—Subsec. (a). Act June 24, 1948, included a factor (a 260 multiplier) so as to make this subsec. useful in 5-day week employments.
Subsec. (b). Act June 24, 1948, included the new factor (a 260 multiplier) to make this subsec. consistent with subsec. (a).
Subsec. (c). Act June 24, 1948, permitted the inclusion of all earnings of the injured workman in determining the employee’s annual earning capacity.
Effective Date of 1984 Amendment
Amendment by section 10(a) of Pub. L. 98–426 effective Sept. 28, 1984, and applicable both with respect to claims filed after such date and to claims pending on such date, and amendment by section 10(b) of Pub. L. 98–426 effective Sept. 28, 1984, see section 28(a), (e)(1) of Pub. L. 98–426, set out as a note under section 901 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–576 effective 30 days after Oct. 27, 1972, see section 22 of Pub. L. 92–576, set out as a note under section 902 of this title.
Effective Date of 1948 Amendment
Amendment by act June 24, 1948, applicable to death or injuries occurring after June 24, 1948, see section 6 of act June 24, 1948, set out as a note under section 906 of this title.
