TOPIC 8.2    

Topic  8.2       Extent of Disability--Partial Disability/Suitable Alternate Employment

McAfee v. Bath Iron Works Corp., (Unpublished)(BRB No. 03-0611)(Oct. 8, 2004).

            The Board upheld the ALJ’s denial of temporary partial disability compensation for the period during which the claimant would not cross a picket line during a strike to work at his light duty job.  The Board stated that it agreed with the ALJ’s statement that the LHWCA cannot “be stretched to provide compensation to a worker whose loss of wages was attributable not to his injury but rather due to a decision to participate in a strike against the worker’s employer.”

Topic 8.2        Extent of Disability

[ED. NOTE: The following case is included for informational value only.]

Cranfield v. Commissioner of Social Security, (Unpublished), 79 Fed. Appx. 852; 2003 U.S. App. LEXIS 22696 (6th Cir. Nov. 3, 2003).

            In this Social Security disability case wherein the claimant filed a claim for disability benefits based on back, foot, hand and leg problems, the claimant appealed arguing that the ALJ had failed to consider the claimant's obesity. In her appeal, the claimant cited the LHWCA case of Morehead Marine Services v. Washnock, 135 F.3d 366 (6th Cir. 1998) where the circuit court had held that the APA required an ALJ's decision to "include a discussion of ‘findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record.'" In the instant case, the court found that the ALJ had included specific and accurate references to evidence that supported his decision and that he addressed all of the issues that the claimant relied on in her claim for benefits - back, foot, hand, and leg problems. "The ALJ did nothing more than mention [the claimant's] obesity because neither [the claimant] nor her doctors offered any evidence to suggest that her weight was a significant impairment. Since [the claimant's] claims did not indicate that obesity was a significant impairment, the ALJ was not required to give the issue any more attention than he did." (The claimant was five foot four and a half inches tall and has weighed between 214 and 276 ½ pounds.)

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Topic  8.2.1    Extent of Disability—No Loss of Wage-Earning Capacity

Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9^th Cir. Dec. 21, 2004).

            While the main focus of this case is on de minimis awards, the court, in a two to one decision, also decided to adopt Board and other circuit court precedent that a shoulder injury is unscheduled.  As to the de minimis issue, the court opined, “if there is a chance of future changed circumstances which, together with the continuing effects of the claimant’s injury, create a ‘significant potential’ of future depressed earning capacity, then the claimant is entitled to the possibility of a future modified award under Rambo II.”  See Metropolitan Stevedore Co v. Rambo, 521 U.S. 121 (1997)(“Rambo II”).

            Here the claimant had remained at work for several years in a clerical position rather than his prior longshoring position and was making more than he had at the time of injury.  The ALJ had found that the passage of time had outweighed the need for a de minimis award.  The court stated that unless the passage of time has directly removed one of the relevant factors—for example, if some of the claimant’s work restrictions were removed, or if market conditions changed for the better—the logic of the Rambo II test dictates that the mere fact that the claimant is earning above pre-injury levels cannot obviate the basis of the de minimis award. The court found, “the absence of economic loss thus far does not reflect an underlying absence of loss in physical function.  The significance of the injury is a substantial factor in the ‘significant potential of diminished capacity’ test articulated by Rambo II.”  Judge Tallman dissented on the de minimis portion of this opinion.

            The Ninth Circuit also took the opportunity to note it’s recently explicit opinion in Sestich v. Long Beach Container Terminal, 289 F.3d 1157, at 1160 (9^th Cir. 2002), ratifying the rule expressed previously in Board decisions that the statutory formula for wages contemplates wages at the time of injury, rather than projected present wages as the relevant baseline for comparison to actual present earning capacity.  Claimant had argued that he should collect benefits according to a hypothetical damages formula, under which the employer must compensate him for the difference between his actual economic position and his hypothetical economic position, which he would have enjoyed but for the injury.

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Topic   8.2.2   Extent of Disability—De Minimis Awards

Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9^th Cir. Dec. 21, 2004).

            While the main focus of this case is on de minimis awards, the court, in a two to one decision, also decided to adopt Board and other circuit court precedent that a shoulder injury is unscheduled.  As to the de minimis issue, the court opined, “if there is a chance of future changed circumstances which, together with the continuing effects of the claimant’s injury, create a ‘significant potential’ of future depressed earning capacity, then the claimant is entitled to the possibility of a future modified award under Rambo II.”  See Metropolitan Stevedore Co v. Rambo, 521 U.S. 121 (1997)(“Rambo II”).

            Here the claimant had remained at work for several years in a clerical position rather than his prior longshoring position and was making more than he had at the time of injury.  The ALJ had found that the passage of time had outweighed the need for a de minimis award.  The court stated that unless the passage of time has directly removed one of the relevant factors—for example, if some of the claimant’s work restrictions were removed, or if market conditions changed for the better—the logic of the Rambo II test dictates that the mere fact that the claimant is earning above pre-injury levels cannot obviate the basis of the de minimis award. The court found, “the absence of economic loss thus far does not reflect an underlying absence of loss in physical function.  The significance of the injury is a substantial factor in the ‘significant potential of diminished capacity’ test articulated by Rambo II.”  Judge Tallman dissented on the de minimis portion of this opinion.

            The Ninth Circuit also took the opportunity to note it’s recently explicit opinion in Sestich v. Long Beach Container Terminal, 289 F.3d 1157, at 1160 (9^th Cir. 2002), ratifying the rule expressed previously in Board decisions that the statutory formula for wages contemplates wages at the time of injury, rather than projected present wages as the relevant baseline for comparison to actual present earning capacity.  Claimant had argued that he should collect benefits according to a hypothetical damages formula, under which the employer must compensate him for the difference between his actual economic position and his hypothetical economic position, which he would have enjoyed but for the injury.

Topic  8.2.2    Extent of Disability--De Minimis Awards

Newport News Shipbuilding & Dry Dock Co., (Unpublished)( No. 03-1989) (4^th Cir. January 5, 2004).

            The Fourth Circuit affirmed an award of de minimis in relation to an award of temporary partial disability benefits.  The court noted that Section 8©, dealing with permanent partial disability was not applicable here, rather Section 8(e) was applicable and thus the ALJ was correct in considering the claimant’s future earnings capacity in issuing the award.

Topic  8.2.2    Extent of Disability–De Minimis Awards

[ED. NOTE: The following June 2003 decision is included in this digest news letter because it was received in July.]

Gillus v. Newport News Shipbuilding & Dry Dock Company, 37 BRBS 93 (June 12, 2003).

            The Board found that when a claimant in temporary partial disability status filed a motion for modification seeking de minimis benefits, it was not, per se, invalid as an “anticipatory” claim. Specifically, here the claimant filed the motion after her doctor noted her increasing difficulty in performing her job and that she had progressive arthritis and probably would need knee replacement surgery in the future. Thus the claim was not “anticipatory” according to the Board.

            Further more, the Board found that simply because the claimant’s injury was to her leg, a body part covered by the schedule, does not mean that the claimant cannot receive a de minimis award. The board noted that the claimant had not claimed or been compensated for any permanent disability to her leg, nor has her condition been termed “permanent” by her physician. Thus, her modification claim for de minimis benefits was appropriately viewed as based upon an award for temporary partial disability benefits pursuant to Section 8(e). A Section 8(e) award is not precluded to a claimant who sustains an injury to a member listed in the Schedule at Section 8(c), but whose injury has not yet been found permanent. A claimant is limited to the schedule only where the claimant is permanently partially disabled.

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Topic  8.2.3.1 Extent of Disability--Total disability while working–Beneficent employer/ sheltered employment and extraordinary effort

[ED. NOTE: Although the following ADA decision is not a LHWCA case, it is nevertheless noteworthy for LHWCA purposes. In this case the Court sets a new rebutable presumption standard that an accommodation requested by a disabled employee under the ADA is unreasonable if it conflicts with seniority rules for job assignments. This was a 5-4 decision by J. Breyer, with two concurrences (J. Stevens and J. O'Connor) and two dissents (J. Scalia with J. Thomas joining, and J. Souter with J. Ginsburg joining).]

U.S. Airways, Inc., v. Barnett, 535 U.S. 391; 122 S.Ct. 1516 (2002).

            Held, an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an accommodation is not reasonable. However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case. The Court took a middle ground here rejecting both the positions of the airline and its employee. The airline had argued that a proposed accommodation that conflicts with an employer-established seniority system should be automatically unreasonable. The employee had argued that the employer should have the burden to show the accommodation's conflict with seniority rules constitutes an undue hardship.

            Justice Breyer noted that various courts have properly reconciled "reasonable accommodation" and "undue hardship" in a practical way that does not create a dilemma for employees. The justice explained that those courts have held that an employee "need only show that an accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases," while the employer "then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances." He went on to state that the "the seniority system will prevail in the run of cases" because "the typical seniority system provides important employee benefits by creating, and fulfilling employee expectations of fair, uniform treatment."

Topic  8.2.3.1 Extent of Disability--Total disability while working–Beneficent employer/sheltered employment and extraordinary effort

Chevron U.S.A, Inc. v. Echazabal, 536 U.S. 73; 122 S.Ct. 2045 (2002).

[ED. NOTE:  While this ADA disability case is not a longshore case, it is included in the materials for general information.]

            In a 9-0 ruling, the Court held that an employer may refuse to hire a job applicant who has an illness/disability (hepatitis C here) that poses a direct threat to the worker's own health or safety; that the ADA does not protect such a worker. Here the employer refused to hire the applicant to work at an oil refinery because company doctors opined that the applicant's hepatitis C would be aggravated by the toxins at the workplace. The applicant had unsuccessfully argued that he should be able to decide for himself whether to take the risk of working in an oil refinery where chemicals might aggravate his liver ailment. Since the applicant disputed the doctors' assessment, the Supreme Court stated that on remand the Ninth Circuit could consider whether the employer engaged in the type of individualized medical assessment required by the Equal Employment Opportunity Commission regulation.

Topic  8.2.3.1 Extent of Disability--Total disability while working--Extraordinary Effort

Newport News Shipbuilding & Dry Dock Co. v. Vinson, (Unpublished) (4th Cir. No. 00-1204) (June 20, 2002).

            Here the employer challenged the ALJ's finding that the claimant was entitled to disability benefits for the period during which he returned to his employment as a welder despite his injury. In upholding the ALJ and the Board, the Fourth Circuit noted that the claimant's return to work after his injury did not preclude a disability award as a matter of law. The statutory standard for disability "turns on the claimant's capacity for work, not actual employment. Thus, when a claimant, as here, continues employment after an injury only through "extraordinary effort to keep working" and despite the attendant "excruciating pain" and substantial risk of further injury, he may nevertheless qualify for a disability award. The court noted that a disability award under the LHWCA is predicated on an employee's diminished capacity for work due to injury rather than actual wage-loss.

Topic   8.2.3.1            Extent of Disability--Total disability while working--Beneficent employer/sheltered employment and extraordinary effort

Ward v. Holt Cargo Systems, (Unreported) (BRB No. 01-0649) (May 6, 2002).

            In instances where a claimant's pain and limitations do not rise to the level of working only with extraordinary effort and in spite of excruciating pain, such factors nonetheless are relevant in determining a claimant's post-injury wage-earning capacity and may support an award of permanent partial disability benefits under Section 8(c)(21) based on a reduced earning capacity despite the fact that a claimant's actual earnings may have increased.

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Topic  8.2.3.2 Extent of Disability--Disability While Undergoing Vocational Rehabilitation

Castro v. General Construction Company, 37 BRBS 65 ( 2003).

            In this total disability award case geographically in the Ninth Circuit, the employer argued that the Board should not have awarded total disability benefits during the claimant's DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass'n, 27 BRBS 192 (1993), aff'd 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer's expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.) The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse], 315 F.3d 286, 36 BRBS 85(CRT) (4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program. The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment. If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried. "The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment." Additionally the Board noted that while Congress enacted a statute that dealt with "total" and "partial" disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee's physical condition.

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period. The Board found that "Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits."

            The Board also rejected the employer's contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue. "Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits."

Topic  8.2.3.2 Extent of Disabiolity--Disability While Undergoing Vocational Rehabilitation

Newport News Shipbuilding & Dry Dock v. Director, OWCP, (Brickhouse), 315 F.3d 286 (4th Cir. 2002).

            Here the Fourth Circuit adopted the Fifth Circuit's rationale in Abbott v. Louisiana Insurance Guaranty Assoc., 27 BRBS 192 (1993), aff'd 40 F.3d 122 (5th Cir. 1994), that suitable alternate employment is reasonably unavailable due to the claimant's participation in an approved rehabilitation program even though the employer's offer of alternate employment would have resulted in an immediate increase in wage earning capacity. In the instant case, after OWCP approved a vocational rehab program for the claimant, and placed a two year completion timetable on it, Newport News sought to hire the claimant in a newly created desk position. At the time of the offer, the claimant lacked completing the program by two classes and it was doubtful as to whether he could enroll in night school to timely complete the program. Additionally, the job offer from Newport News came with the condition that the claimant could be "terminated with or without notice, at any time at the option of the Company or yourself."

Topic  8.2.3.2 Extent of Disability--Disability While Undergoing Vocational Rehabilitation

Castro v. General Construction Company, 37 BRBS 65 (2003).

            In this total disability award case geographically in the Ninth Circuit, the employer argued that the Board should not have awarded total disability benefits during the claimant’s DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass’n, 27 BRBS 192 (1993), aff’d 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer’s expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.)  The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse], 315 F.3d 286, 36 BRBS 85(CRT) (4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program.  The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment.  If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried.    “The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment.”  Additionally the Board noted that while Congress enacted a statute that dealt with “total” and “partial” disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee’s physical condition.

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period.  The Board found that “Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits.”

            The Board also rejected the employer’s contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue.  “Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits.”

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Topic   8.2.4.  Extent of Disability—Partial Disability/Suitable Alternate Employment

Opiopio v. United States Marine Corps, (Unpublished) (BRB No. 04-0340)(December 7, 2004).

            In this suitable alternate employment case, the Board found that the ALJ exceeded her authority by ordering the employer to provide the claimant with a job that complies with the doctor’s work restrictions and to enforce the restrictions.  Additionally, the Board held that, contrary to the ALJ’s suggestion that the employer provide the claimant with vocational rehabilitation assistance if it was unable to provide a suitable light duty position, the employer is not obligated under the LHWCA to offer the claimant vocational rehabilitation.  Since Section 39©(1)-(2) and the implementing regulations, 20 C.F.R. § 702.501 et seq., authorize the Secretary of Labor to provide for the vocational rehabilitation of permanently disabled employees in certain circumstances, ALJs do not have the authority to provide vocational rehabilitation.

Topic  8.2.4    Extent of Disability--Partial Disability/Suitable Alternate Employment

Pope v. Ham Industries, Inc. (Unpublished)(BRB NO. 03-0476)(April 2, 2004).

            A claimant suffering a loss in wage-earning capacity, who is terminated for misfeasance, from a light-duty suitable alternate employment position is nevertheless still entitled to the continuation of any partial disability benefits to which she was entitled prior to her termination. The Board held that the claimant's termination did not sever the employer's liability for continuing partial disability benefits based on the loss in earning capacity existing at the time of termination.

Topic  8.2.4    Extent of Disability--Partial Disability/Suitable Alternate Employment

[ED. NOTE: The following announcements by federal agencies may eventually affect the administration of the LHWCA on issues of suitable alternate employment and Section 8(f).]

Study of Hearing-Impaired Employees

            The National Institute for Occupational Safety and Health (NIOSH) plans to study methods of accommodation for hearing-impaired workers. The proposed study will look at an evaluation and intervention protocol used to accommodate noise exposed, hearing-impaired workers so they can continue to perform their jobs without further hearing loss. Results from the proposed study will be used to make recommendations to hearing health professionals and hearing conservation program managers on the auditory management of hearing-impaired workers. (69 Fed. Reg. 44537). Comments on the study were due within 30 days of the request's publication and can be sent to CDC Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, D.C., 20503.

Obesity

            While not directly calling obesity a disease, Medicare has nevertheless adopted a new policy by abandoning its previous position that "obesity itself cannot be considered an illness." The new policy will not have an immediate impact on Medicare coverage and does not affect existing coverage of treatments of diseases resulting in or made worse by obesity. However, as requests for coverage of obesity treatments are made by the public, Medicare will review the scientific evidence about their effectiveness.

Topic   8.2.4   Extent of Disability--Partial Disability/Suitable Alternate Employment

Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73; 122 S.Ct. 2045 (2002).

[ED.  NOTE: While this ADA disability case is not a longshore case, it is included in the materials for general information.]

            In a 9-0 ruling, the Court held that an employer may refuse to hire a job applicant who has an illness/disability (hepatitis C here) that poses a direct threat to the worker's own health or safety; that the ADA does not protect such a worker. Here the employer refused to hire the applicant to work at an oil refinery because company doctors opined that the applicant's hepatitis C would be aggravated by the toxins at the workplace. The applicant had unsuccessfully argued that he should be able to decide for himself whether to take the risk of working in an oil refinery where chemicals might aggravate his liver ailment. Since the applicant disputed the doctors' assessment, the Supreme Court stated that on remand the Ninth Circuit could consider whether the employer engaged in the type of individualized medical assessment required by the Equal Employment Opportunity Commission regulation.

Topic  8.2.4    Extent of Disability--Partial disability/Suitable Alternate Employment

Ward v. Holt Cargo Systems, (Unreported) (BRB No. 01-0649) (May 6, 2002).

            In instances where a claimant's pain and limitations do not rise to the level of working only with extraordinary effort and in spite of excruciating pain, such factors nonetheless are relevant in determining a claimant's post-injury wage-earning capacity and may support an award of permanent partial disability benefits under Section 8(c)(21) based on a reduced earning capacity despite the fact that a claimant's actual earnings may have increased.

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Topic  8.2.4.1  Extent of Disability—Burdens of Proof

Fortier v. Electric Boat Corp., ___ BRBS ___ (BRB No. 04-0351)(Dec. 14, 2004).

             In this suitable alternate employment case, the ALJ determined that only the security guard positions listed in the employer’s labor market survey might constitute suitable alternate employment.  Nevertheless, he determined that as the claimant, despite the exercise of due diligence, has been unsuccessful in obtaining any form of suitable alternate employment, she was totally disabled.  The Board upheld the ALJ’s determinations, finding that although he did not mention Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT)(2^nd Cir. 1991) by name, he had adhered to the appropriate standards in addressing the issue of suitable alternate employment set down by the Second Circuit for this claim which was within that circuit.   The ALJ had noted that there was evidence not only that the claimant had sought employment at some of the places noted on the employer’s job market survey, but that she had also sought employment on her own, including on two occasions, obtaining employment through a temporary agency only to find in each instance that after one day, the work was too physically demanding for her post-injury condition.

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Topic  8.2.4.3 Extent of Disability--Suitable alternate employment: location of jobs

Patterson v. Omniplex World Services, 36 BRBS 149 (2003).

            This Defense Base Act case has issues concerning the admission of evidence and the scope of the relevant labor market for suitable employment purposes. Here, the claimant from Missouri was injured while employed as a security guard in Moscow as an embassy construction site. He had previously worked for this same employer for approximately six years before this injury in various locations.

            After the close of the record in this matter, the employer requested that the record be reopened for the submission of "new and material" evidence which became available only after the close of the record. Specifically, the employer asserted that in a state court filing dated subsequent to the LHWCA record closing, the claimant stated that he had previously been offered and had accepted a security guard job in Tanzania.

            The claimant argued that this evidence should not be admitted as it was outside the relevent Trenton, Missouria, labor market. The ALJ issued an Order Denying Motion to Reopen Record, stating that his decision would be based upon the existing record "due to the fact that the record was complete as of the date of the hearing together with the permitted post-hearing submissions, the complexity of the matters being raised post-hearing, the delays that would be encountered if further evidence is admitted, and the provisions of Section 22 of the Act which provide for modification of the award, if any."

            In overturning the ALJ on this issue, the Board found the evidence to be relevant and material, and not readily available prior to the closing of the record. The evidence was found to be "properly admissible under Section 18.54(c) of the general rules of practice for the Office of Administrative Law Judges, as well as under the specific regulations applicable to proceedings under the Act. 20 C.F.R. §§  702.338, 702.339. See generally Wayland v. Moore Dry Dock, 21 BRBS 177 (1988).

            The Board further noted that Sections 18.54(a) of the Rules of Practice and 20 C.F.R. § 702.338 explicitly permit an ALJ to reopen the record, at any time prior to the filing of the compensation order in order to receive newly discovered relevant and material evidence.

            While the Board affirmed the ALJ's conclusion that Missouri is the claimant's permanent residence, and thus his local labor market in the case, the Board opined that the ALJ should have considered the significance of the claimant's overseas employment in evaluating the relevant labor market. The Board concluded that, given the claimant's employment history, the labor market cannot be limited solely to the Trenton, Missouri, area. Additionally, the Board noted that, in fact, the claimant has continued to perform post-injury security guard work in the worldwide market.

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Topic  8.2.4.7 Suitable Alternate Employemnt—Factors affecting/not affecting employer’s burden

Spooner v. ADM/Growmark River System, Inc., (Unpublished)(BRB No. 04-0165)(Oct. 20, 2004).

            When a claimant, who resumed suitable alternate employment at his employer’s facility was later discharged from that position due to his own misfeasance (violating company policy regarding alcohol abuse), the employer was not required to establish the availability of suitable alternate employment on the open market.  The Board distinguished this case from Brown v. Rriver Rentals Stevedoring, Inc., (Unpublished) (BRB No. 01-0770)(June 17, 2002)(Where a worker is discharged from an unsuitable job at the employer’s facility due to his own misfeasance, employer must show suitable alternate employment.)

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Topic  8.2.4.8 Extent of Disability—Jobs in employer’s facility

McAfee v. Bath Iron Works Corp., (Unpublished)(BRB No. 03-0611)(Oct. 8, 2004).

            The Board upheld the ALJ’s denial of temporary partial disability compensation for the period during which the claimant would not cross a picket line during a strike to work at his light duty job.  The Board stated that it agreed with the ALJ’s statement that the LHWCA cannot “be stretched to provide compensation to a worker whose loss of wages was attributable not to his injury but rather due to a decision to participate in a strike against the worker’s employer.”

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Topic  8.2.4.9 Extent of Disability—Diligent search and willingness to work

Fortier v. Electric Boat Corp., ___ BRBS ___ (BRB No. 04-0351)(Dec. 14, 2004).

             In this suitable alternate employment case, the ALJ determined that only the security guard positions listed in the employer’s labor market survey might constitute suitable alternate employment.  Nevertheless, he determined that as the claimant, despite the exercise of due diligence, has been unsuccessful in obtaining any form of suitable alternate employment, she was totally disabled.  The Board upheld the ALJ’s determinations, finding that although he did not mention Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT)(2^nd Cir. 1991) by name, he had adhered to the appropriate standards in addressing the issue of suitable alternate employment set down by the Second Circuit for this claim which was within that circuit.   The ALJ had noted that there was evidence not only that the claimant had sought employment at some of the places noted on the employer’s job market survey, but that she had also sought employment on her own, including on two occasions, obtaining employment through a temporary agency only to find in each instance that after one day, the work was too physically demanding for her post-injury condition.

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