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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.
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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McAfee v. Bath Iron Works Corp., (Unpublished)(BRB No.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(Unpublished), 79 Fed.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.)
Topic 8.2.1 Extent of
Disability—No Loss of Wage-Earning Capacity
Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9th
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 (9th 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
Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9th
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 (9th 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) (4th 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.
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.
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.”
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.
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)(2nd 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.
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.
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.)
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.”
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)(2nd 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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