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Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
Description |
Topic |
Administration and Vocational Rehabilitation--Generally |
39.1 |
Secretary's Authority to Direct Vocational Rehabilitation |
39.3 |
TOPIC 39
Topic 39.1 Administration
and Vocational Rehabilitation--Generally
Meinert v. Fraser, 37 BRBS 164 (2003).
Here the employer appeals to the Board (to review under its abuse of discretion
standard) the Vocational Rehabilitation Plan approved by the District Director.
The employer contended that vocational rehabilitation is unnecessary because
the claimant retains a wage-earning capacity on the open market and that upon
completion of the plan, the claimant will have a lower earning capacity in
motorcycle repair than that demonstrated by employer's labor market survey. The
Employer averred that the evidence it developed after the implementation of the
plan demonstrates the validity of its contentions. The employer also contends
that motorcycle repair was merely an interest of the claimant's and that is why
retraining in this area was pursued.
After reviewing the pertinent regulations (20 C.F.R. §§ 702.501-702.508) and
the statute (Section 39(c)(2), the Board noted that neither the LHWCA nor the
regulations provides an explicit role for an employer in the formulation of a
rehabilitation plan. The Board held that the employer has not shown that the
district director had abused her discretion in implementing the plan, as it
failed to demonstrate that the district director did not comply with the
regulatory criteria. The Board found that the counselor had adequately
documented the wages that the claimant would earn upon completion of the
program, as the claimant had no earnings at the time the plan was documented.
It further noted that the counselor had documented his placement efforts prior
to recommending retraining courses, and he demonstrated how the claimant's
vocational background and aptitude testing fit well with the new skills
claimant will obtain at the technical college. Further, the Board noted that
"[I]t is self-evident that a claimant is more likely to succeed at a plan
if, in addition to its being suitable for him, it involves a vocation in which
he is interested."
Employer sought to enter into evidence information which it alleges would
establish that the claimant had a current wage-earning capacity without the
retraining program that was at least equal to what the claimant would earn upon
his completion of the plan. The Board declined to allow the information to be
entered into evidence stating that "Assuming arguendo, the validity
of employer's contention, employer cannot demonstrate an abuse of the district
director's discretion where the plan is otherwise fully documented according to
the regulatory criteria."
The Board also declined to address the employer's contentions regarding its
potential liability for disability benefits during the retraining period. It
stated that, "This issue is one that is properly presented to an [ALJ] in
the first instance, and employer is entitled to a full evidentiary hearing on
this issue."
Topic 39.3 Administration and Vocational Rehabilitation—Secretary’s Authority to Direct Vocational Rehabilitation
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 39.3 Secretary's
Authority to Direct 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 39.3 Secretary’s
Authority to Direct 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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