Nos. 97-70180, 97-70184.

140 F.3d 1247 (1998)

Thomas W. McNUTT, Petitioner, v. BENEFITS REVIEW BOARD; Superior Marine Inc.; Commercial Union Insurance Company; United States Department of Labor; Director, Office of Workers Compensation Programs, Respondents. SUPERIOR MARINE INC.; Commercial Union Insurance Company, Petitioners, v. BENEFITS REVIEW BOARD, Director, Office of Workers Compensation Programs; United States Department of Labor, Respondents.

United States Court of Appeals, Ninth Circuit.

Decided April 7, 1998.

Attorney(s) appearing for the Case

Ralph Ogden, Wilcox & Ogden, P.C., Denver, Colorado, for petitioner.

Jimese L. Pendergraft, Knight, Clarke, Dolph & Rapaport, P.L.C., Norfolk, Virginia, for respondents.

Thomas O. Shepherd, Jr., Clerk of the Benefits Review Board, U.S. Department of Labor for respondent Benefits Review Board.

Carol DeDeo, Associate Solicitor, U.S. Department of Labor, Washington, DC, for respondent Director, Office of Workers Compensation Programs.

Before: SNEED, KOZINSKI and THOMPSON, Circuit Judges.


Thomas W. McNutt is disabled. The issue we consider in this appeal is whether a $100 per diem paid to McNutt while working in Scotland should be included as wages in calculating his disability benefits under section 902(13) of the Longshore & Harbor Worker's Compensation Act, ("LHWCA"), 33 U.S.C. §§ 901-950.

Both McNutt and his employer, Superior Marine Inc., appeal the decision of the Benefits Review Board's affirmance of an Administrative...

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