USDOL OALJ LHWCA Benchbook, Topic 8.2, Extent of Disability (2002)

If a claimant's former, usual employer offers jobs which pay more than the claimant's present wages at the time of injury (and the claimant was not in one of those jobs prior to the injury nor would the claimant have moved to one but for the injury), the present earnings will be found to fairly and reasonably reflect the claimant's wage-earning capacity. Long v. Director, OWCP , 767 F.2d 1578, 1583, 17 BRBS 149, 153 (CRT) ( 9th Cir. 1985).

     If an employee is promoted to a higher-paying post where his physical restrictions no longer matter, he has no economic disability. Owens v. Traynor , 274 F. Supp. 770, 774 ( D. Md. 1967), aff'd , 396 F.2d 783 ( 4th Cir. 1968). Further, if he is doing full-time, steady work at a higher wage than previously, merely avoiding overtime or boat-based assignments, the judge may also find no loss of wage-earning capacity. Ford v. Sun Shipbuilding & Dry Dock Co. , 8 BRBS 687, 690-91 (1978).

[ED. NOTE: If overtime is a regular part of a claimant's job, however, it must be taken into account in determining any loss of wage-earning capacity. See Brown v. Newport News Shipbuilding & Dry Dock Co. , 23 BRBS 110, 113 (1989). ]

     If the claimant is offered a job at his pre-injury wages as part of his employer's rehabilitation program, the judge can find that there is no lost wage-earning capacity and that the claimant therefore is not disabled. Swain v. Bath Iron Works Corp. , 17 BRBS 145, 147 (1985). But see Sheltered Employment, Topic 8.2.3.1, infra .

     The mere diagnosis of a disabling disease [asbestosis] which will inevitably become disabling, was not a "disability" [as a matter of law] before the disease diminished the worker's earning capacity. Liberty Mut. Ins. Co. v. Commercial Union Ins. Co. , 978 F.2d 750 ( 1 ^st Cir. 1992). See , White v. Bath Iron Works Corp. v. White , 584 F.2d 569 ( 1 ^st Cir. 1978)(Reduction in earning capacity-not out-of-pocket loss-is the proper test for availability of permanent partial disability payments.), White v. Bath Iron Works Corp. , 812 F.2d 33 ( 1 ^st Cir. 1987); see also Gardner v. Director, OWCP , 640 F.2d 1385 ( 1 ^st Cir. 1981).

     The United States Supreme Court , following the lead of the Second, Fifth and District of Columbia Circuits , has held that a de minimis award, under certain circumstances, can be appropriate. When an employee has proven a medical disability which presently causes no loss of wage-earning capacity, but has a reasonable expectation that a loss in wage-earning capacity will occur in the future, a de minimis award is appropriate. Metropolitan Stevedore Co. v. Rambo [Rambo II] , 521 U.S. 121 (1997); Randall v. Comfort Control, Inc. , 725 F.2d 791, 800, 16 BRBS 56, 69-70 (CRT) ( D.C. Cir. 1984), vacating 15 BRBS 233 (1983); Hole v. Miami Shipyards Corp. , 640 F.2d 769, 773, 13 BRBS 237, 240 ( 5th Cir. 1981), rev'g 12 BRBS 38 (1980). The Fourth Circuit distinguished these cases in a claim where the claimant had steady, continuous post-injury employment. Fleetwood v. Newport News Shipbuilding & Dry Dock Co. , 776 F.2d 1225, 1234 n.9, 18 BRBS 12, 32-33 n.9 (CRT) ( 4th Cir. 1985), aff'g 16 BRBS 282 (1984).

[ED. NOTE: A de minimis award should be distinguished from aa insubstantial award. An de minimis, or nominal disability award is a "mechanism for taking future effects of disability into account when present wage-earning ability remains undiminished." An insubstantial award, though small, represents a real loss in wage-earning capacity. See Newport News Shipbuilding & Dry Dock Company v. Stallings , 250 F.3d 868, ( 4 ^th Cir. 2001). ]

     In Palmer v. Washington Metropolitan Area Transit Authority , 20 BRBS 39 (1987) ( D.C. Cir. case), the Board affirmed the judge's determination that the employee was not entitled to a de minimis award where the judge found that the employee had no reasonable expectation of future loss of wage-earning capacity, based on medical reports that the employee was physically able to perform his work without the aid of co-workers; the lack of evidence that the employee's condition could deteriorate; and the statements that the type of position in which the employee was employed would increase in number in the future.

     In Burkhardt v. Bethlehem Steel Corp. , 23 BRBS 273 (1990), the Board affirmed the judge's finding that the employee had no actual loss of wage-earning capacity and that he was not entitled to a de minimis award. The Board noted that although the employee was unable to perform his pre-injury welding job, he had not performed this job for more than two years, having been promoted to a foreman position at a higher pay than his pre-injury welder job. The record did not include any evidence that the employee's chances of retaining his foreman job were less secure because of his work-related injury. Therefore, the Board concluded that the employee did not establish a significant possibility of future economic harm.

     The Board was reversed, however, in La Faille v. Benefits Review Board , 884 F.2d 54, 22 BRBS 108 (CRT) ( 2d Cir. 1989), rev'g 18 BRBS 88 (1986). The Second Circuit held that the Board erred in failing to award the employee a de minimis award, as there was substantial evidence that he was likely to suffer a future loss of earnings as his condition (progressive lung disease) deteriorated or when his environment changed.

     In Metropolitan Stevedore Co. v. Rambo [Rambo II] , 521 U.S. 121, the Supreme Court , held that de minimis awards were appropriate in the instance where the claimant had no immediate economic harm; however, it was reasonable probable that he would suffer future economic harm from the present injury or disability. The purpose of the award is to provide a continuing nominal award designed to perpetuate the ability to utilize a Section 22 modification of the current order if there is future economic harm. The trigger for the granting of a de minimis award is not the realization of a physical injury, rather, it is the possibility of economic harm. The Court left open the degree of injury that might be needed, or the degree of probability that it would occur in order to justify the award.

     Total disability is defined as complete incapacity to earn pre-injury wages in the same work as at the time of injury or in any other employment. Under current case law, the employee has the initial burden of proving total disability. To establish a prima facie case of total disability, the claimant must show that he cannot return to his regular or usual employment due to his work-related injury.

[ED. NOTE: To what extent the Americans with Disabilities Act (hereinafter ADA) will impact on this initial burden remains to be determined. Previously, attention had not focused on whether a claimant could resume his former employment if the working conditions were modified. The ADA, however, places a new obligation on the employer--not to discriminate against a disabled employee if "reasonable accommodation" would enable the employee to do the job. 42 U.S.C. 12112(b)(5), 12111(9). For this reason, the initial burden may have to change. Perhaps the employee may have to show that he cannot resume his former employment "as is," and the employer will then have to show that it cannot reasonably accommodate the employee's impairment.

      Of general interest to the Longshore community is the ADA case, Willis v.Pacific Maritime Assoc. , 236 F.3d 1160 ( 9 ^th Cir . 2001), amended and rehearing en banc denied at 244 F.3d 675 ( 9 ^th Cir. 2001)(ADA accommodation that is contrary to a CBA seniority system is unreasonable per se; ADA cannot preempt the NLRA because preemption doctrine applies only to conflicts between state and federal law.).

     At this initial stage, the claimant need not establish that he cannot return to any employment, only that he cannot return to his former employment. Elliot v. C & P Tel. Co. , 16 BRBS 89 (1984). See , e.g. , Manigault v. Stevens Shipping Co. , 22 BRBS 332 (1989) (employee required lighter duty which did not require the use of his right hand for heavy grip, and thus could not resume his former employment of holdman); Harrison v. Todd Pac. Shipyards Corp. , 21 BRBS 339 (1988) (due to permanent restrictions against heavy lifting and excessive bending, employee cannot resume usual job as a sandblaster).

The same standard applies regardless of whether the claim is for temporary total or permanent total disability. If the claimant meets this burden, he is presumed to be totally disabled. Walker v. Sun Shipbuilding & Dry Dock Co. (Walker II) , 19 BRBS 171 (1986).

     In Steevens v. Umpqua River Navigation , ___ BRBS ___, (BRB Nos. 00-1027 and 00-1027A)(July 17, 2001), the Board held that a scheduled award of permanent partial disability is not, for purposes of Section 6(b)(2) equivalent to an award of total disability for a limited time.

8.2.4.1 Burdens of Proof

     Most circuits have adopted a version of this standard. Trans-State Dredging v. Benefits Review Bd. (Tarner) , 731 F.2d 199, 16 BRBS 74 (CRT) ( 4th Cir. 1984), rev'g Tarner v. Trans-State Dredging , 13 BRBS 53 (1980); New Orleans (Gulfwide) Stevedores v. Turner , 661 F.2d 1031, 14 BRBS 156 ( 5th Cir. 1981), rev'g 5 BRBS 418 (1977); Bumble Bee Seafoods v. Director, OWCP , 629 F.2d 1327, 12 BRBS 660 ( 9th Cir. 1980), aff'g Hansen v. Bumble Bee Seafoods , 7 BRBS 680 (1978); McCabe v. Sun Shipbuilding & Dry Dock Co. , 602 F.2d 59, 10 BRBS 614 ( 3d Cir. 1979), aff'g in pertinent part 7 BRBS 333 (1977); Ridgley v. Ceres, Inc. , 594 F.2d 1175, 9 BRBS 948 ( 8th Cir. 1979), aff'g Ridgely v. Great Lakes Storage & Contracting Co. , 7 BRBS 297 (1977); Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Chappell] , 592 F.2d 762, 765, 10 BRBS 81, 86-87 ( 4th Cir. 1979); Diamond M. Drilling Co. v. Marshall , 577 F.2d 1003, 8 BRBS 658 ( 5th Cir. 1978), aff'g Kilsby v. Diamond M. Drilling Co. , 6 BRBS 114 (1977); American Stevedores v. Salzano , 538 F.2d 933, 4 BRBS 195 ( 2d Cir. 1976), aff'g 2 BRBS 178 (1975). See also Hite v. Dresser Guiberson Pumping , 22 BRBS 87 (1989); Young v. Todd Pac. Shipyards , 17 BRBS 201, 203 (1985); Miller v. Prolerized New England Co. , 14 BRBS 811 (1981), aff'd , 691 F.2d 45, 15 BRBS 23 (CRT) ( 1st Cir. 1982); Pilkington v. Sun Shipbuilding & Dry Dock Co. , 9 BRBS 473 (1978); Bunge Corp. v. Carlisle and T. Michael Kerr, Deputy Assist, Sec., OWCP , 227 F.3d 934 ( 7 ^th Cir. 2000).

     In addition to the employer's evidence of suitable alternate employment, the ALJ must also consider any other evidence put forth by the claimant in making a decision in this matter. For example, in Newport News shipbuilding and Dry Dock Co. v. Wiggins , (Unpublished) (No. 00-2532) ( 4 ^th Cir. December 14, 2001), relying on the evidence as a whole, the Fourth Circuit affirmed the ALJ's award of total disability benefits to the claimant. The employer had argued that the claimant's part-time job as a newspaper carrier constituted suitable alternate employment. In upholding the award, the Fourth Circuit agreed that the newspaper route did not establish a continuing ability to earn wages. The evidence showed that the claimant experienced problems with her hands, wrists and knee, and that it swelled and gave way if she walked too much or too quickly. It further showed that she sometimes received help from her children in carrying out her duties. Furthermore, the court noted that her doctor noted that the carrier job was causing her a "lot of pain in her knee" and he prescribe medication and a knee brace to ease the pain and stabilize her knee.

     The First Circuit has adopted a somewhat different standard, holding that the severity of the claimant's employer's burden must reflect the reality of the situation and it will not shift the burden in all cases. Air America, Inc. v. Director, OWCP , 597 F.2d 773, 10 BRBS 505 ( 1st Cir. 1979), aff'g and rev'g in part Kerch v. Air America, Inc. , 8 BRBS 490 (1978). The First Circuit stated that it will not put the burden of proving that actual available jobs exist on the employer when it is "obvious" that there are available jobs that someone of the claimant's age, education, and experience could do.

     The court held that, when the employee's impairment only affects a specialized skill necessary for his pre-injury job, the severity of the employer's burden had to be lowered to meet the reality of the situation. The court therefore held that the testimony of an educated pilot, who could no longer fly, that he received vague job offers, established that he was not permanently disabled. Air America , 597 F.2d at 778, 780, 10 BRBS at 511-12, 514. See also Argonaut Ins. Co. v. Director, OWCP , 646 F.2d 710, 13 BRBS 297 ( 1st Cir. 1981) (young intelligent man not unemployable).

     The Board has declined to follow Air America in this regard. Lobue v. Army & Air Force Exch. Serv. , 15 BRBS 407, 409 (1983); Lunsford v. Marathon Oil Co. , 15 BRBS 204 (1982), aff'd , 733 F.2d 1139, 16 BRBS 100 (CRT) ( 5th Cir. 1984); Miller v. Prolerized New England Co. , 14 BRBS 811, 819 n.9 (1981), aff'd , 691 F.2d 45, 15 BRBS 23 (CRT) ( 1st Cir. 1982); Dantes v. Western Found. Corp. Ass'n , 10 BRBS 541 (1979), petition for review dismissed , 614 F.2d 299, 11 BRBS 753 ( 1st Cir. 1980).

     The Board chooses instead to follow the test placing the burden on the employer in every case, because the Air America rule would require individual review of every case to determine what the appropriate burden of proof is, causing unnecessary litigation and delay. Furthermore, the Board prefers the traditional analysis because it is an impossible burden to prove oneself unfit for all employment, and the employer can usually better bear the cost of proof that some suitable alternate employment exists. Dantes , 10 BRBS at 548-49. See also Newport News (Chappell) , 592 F.2d at 764-65, 10 BRBS at 85-86 (APA mandates that proponent bear burden of proof; moreover, employee should not have to prove the negative).

     The Board will follow Air America , however, in the First Circuit . Dixon v. John J. McMullen & Assocs. , 19 BRBS 243 (1986). In all other circuits , the Board follows Turner , 661 F.2d at 1038, 14 BRBS at 161. Nguyen v. Ebbtide Fabricators , 19 BRBS 142 (1986).

     If the employer meets its burden and shows suitable alternative employment, the burden shifts back to the claimant to prove a diligent search and willingness to work. See Topic 8.2.4.9, infra ; Williams v. Halter Marine Serv. , 19 BRBS 248 (1987). If employee does not prove such, at the most his disability is partial not total. See 33 U.S.C. � 908(c); Southern v. Farmers Export Co. , 17 BRBS 64 (1985).

     Once a claimant presents a prima facie showing of disability, it is the employer's burden to show that there was suitable alternate employment. An employer cannot simply show that a claimant was terminated for cause. Newport News Shipbuilding & Dry Dock Co. v. Riley , 262 F.3d 227 ( 4 ^th Cir. 2001)(Motion to publish was granted by the court on June 29, 2001). The employer has the burden of showing that there was suitable alternate employment, either within or without the company.

8.2.4.2 Suitable alternate employment: Employer must show nature, terms, and availability

     The employer is not required to act as an employment agency for the claimant. It must, however, prove the availability of actual, not theoretical, employment opportunities by identifying specific jobs available to the employee within the local community. New Orleans (Gulfwide) Stevedores v. Turner , 661 F.2d 1031, 1042-43, 14 BRBS 156, 164-65 ( 5th Cir. 1981), rev'g 5 BRBS 418 (1977); Bumble Bee Seafoods v. Director, OWCP , 629 F.2d 1327, 1330, 12 BRBS 660, 662 ( 9th Cir. 1980); Armfield v. Shell Offshore, Inc. , 30 BRBS 122, 123 (1996); Royce v. Elrich Constr. Co. , 17 BRBS 157 (1985); Pilkington v. Sun Shipbuilding & Dry Dock Co. , 9 BRBS 473, 480 (1978); Salzano v. American Stevedores , 2 BRBS 178 (1975), aff'd , 538 F.2d 933, 4 BRBS 195 ( 2d Cir. 1976); Bunge Corp. v. Carlisle and T. Michael Kerr, Deputy Assist. Sec., OWCP , 227 F.3d 934 ( 7 ^th Cir. 2000). The employer must demonstrate that specific job opportunities exist which the injured employee could perform considering the claimant's age, education, work experience, and physical restrictions. Edwards v. Director, OWCP , 99 F.2d 1374 ( 9th Cir . 1993); cert . denied , 511 U.S. 1031 (1994). The Edwards court also stressed the importance of these jobs being regularly available. The judge must allow the employer to present evidence as to the availability of the of suitable alternative employment, even if the employer does not have information as to the job's previous availability. Lucas v. Louisiana Ins. Guaranty Ass'n , 28 BRBS 1 (1994).

     Accordingly, the employer need not rehire the claimant. Turner , 661 F.2d at 1043, 14 BRBS at 165; Ferrell v. Jacksonville Shipyards , 12 BRBS 566, 570 (1980).

     Suitable alternate employment may be unavailable to a claimant if the employer finds out that the claimant violated company rules. Brooks v. Director, OWCP , 2 F.3d 64, 27 BRBS 100 (CRT) ( 4th Cir. 1993) (work-related injury led employer to discover petitioner's falsification of company records and to fire petitioners; Board's denial of benefits was upheld); see also Harrod v. Newport News Shipbuilding and Dry Dock Co. , 12 BRBS 10, 14-16 (1980) (employer met burden by showing alternative job given claimant, even though claimant was later fired for violating a company rule against bringing handguns to work); but see Manship v. Norfolk & Western Railway Co. , 30 BRBS 175 (1996) (Employer's termination was not due to misfeasance; it was not a "legitimate personnel action and claimant was not discharged for reasons unrelated to his disability.).

[ED. NOTE: Any termination of employment may, however, be in violation of 33 U.S.C. � 948a (unless the termination is for due cause as noted in Brooks and Harrod above) and the ADA. ]

The employer need not place the claimant in suitable alternative employment. Trans-State Dredging v. Benefits Review Bd. (Tarner) , 731 F.2d 199, 201, 16 BRBS 74, 75 (CRT) ( 4th Cir. 1984), rev'g 13 BRBS 53 (1980); Turner , 661 F.2d at 1043, 14 BRBS at 165; Turney v. Bethlehem Steel Corp. , 17 BRBS 232, 237 n.7 (1985); Berkstresser v. Washington Metro. Area Transit Auth. , 16 BRBS 231, 234 (1984); Feezor v. Paducah Marine Ways , 13 BRBS 509, petition for review dismissed , 673 F.2d 1328 ( 6th Cir. 1981).

Furthermore, the employer need not establish that the claimant was offered a specific job. Trans-State Dredging , 731 F.2d at 201, 16 BRBS at 75 (CRT). For the job opportunities to be realistic , however, the employer must establish their precise nature, terms, and availability. Thompson v. Lockheed Shipbuilding & Constr. Co. , 21 BRBS 94, 97 (1988); Price v. Dravo Corp. , 20 BRBS 94 (1987); Rieche v. Tracor Marine , 16 BRBS 272 (1984); Daniele v. Bromfield Corp. , 11 BRBS 801 (1980).

     The ALJ in the second hearing ruled that Wood was entitled to a modification for the period of August 1991 to March 1993. However the judge also found that Bath had made a bona fide re-employment offer in February and March 1993 that would have paid more that Wood's pre-injury wage. (It should be noted that the first offer was a mistake and the second expired in 30 days). Wood appealed the holding to the Board which affirmed the holding under Pub.L.104-134, �101(d), 110 Stat. 1321-219 (1996). The First Circuit overturned the ALJ and Board holdings, finding that the test for suitable alternative employment needed to be amended in cases concerning employees that had moved to a new local.

Wood , 112 F.3d at 596. The holding in See has been followed by the Board in Wilson v. Crowley aritime , 30 BRBS 199, 203-204 (1996).

     In Holder v. Texas Eastern Products Pipeline, Inc. , 35 BRBS 23(2001)(March 12, 2001) the Board overruled Nguyen v. Ebbtide Fabricators , 19 BRBS 142 (1986)( held that employer need only show that SAE is available to the claimant within the community where the injury occurred; employer could also meet its burden, however, if it showed available SAE within the community to which the claimant moved after his injury) and Dixon v. John J. McMullen & Assocs. , 19 BRBS 243 (1986)(held that claimant need only show suitable alternate employment in the vicinity where the claimant was injured.) In light of the circuit cases of See and Wood . Holder was in the jurisdiction of the Fifth Circuit which the Board found had not specifically addressed the relocation issue. The Board found that the Fifth Circuit's language in P&M Crane Co. v. Hayes , 930 F.2d 424, 24 BRBS 116 (CRT) ( 5 ^th Cir. 1991) and New Orleans (Gulfwide) Stevedores v.Turner , 661 F.2d 1031, 14 BRBS 156 ( 5 ^th Cir. 1981) that in order for jobs to qualify as suitable alternate employment, they need to be reasonably available "in the local or surrounding community," does not preclude a consideration of the factors enumerated by the courts in See and Wood .

> 8.2.4.4 Suitable alternate employment: number of available

     The Board and the Fourth Circuit have both held that a showing by an employer of a single job opening is not sufficient to satisfy the employer's burden of suitable alternate employment. The employer must present evidence that a range of jobs exists which is reasonably available and which the disabled claimant is realistically able to secure and perform. Lentz v. Cottman Co. , 852 F.2d 129, 21 BRBS 109 (CRT) ( 4th Cir. 1988); Vonthronsohnhaus v. Ingalls Shipbuilding, Inc. , 24 BRBS 154 (1990); Hayes v. P & M Crane Co. , 23 BRBS 389 (1990), vacated , 24 BRBS 116 (CRT) ( 5th Cir. 1991); Green v. Suderman Stevedores , 23 BRBS 322 (1990).

     The Fifth Circuit takes a different approach. It has held that the identification of a single job opening may be sufficient. As it stated in P & M Crane , the

decision in Turner leaves open the possibility that an employee may have a reasonable likelihood of obtaining such a single employment opportunity under appropriate circumstances. Such an opportunity could well exist, for example, where the employee is highly skilled, the job found by the employer is specialized, and the number of workers with suitable qualifications in the local community is small.

[ED. NOTE: Whether a job paying minimum wage or slightly higher could meet this standard is questionable, as generally every worker has the necessary skills to compete for such a job. Furthermore, unpublished decisions in the Fifth Circuit had precedential value until January 1, 1996. Thereafter, their value is only persuasive. ]

     A single job offer is sufficient to establish suitable alternative employment under the Board's standard. In Shiver v. United States Marine Corp, Marine Base Exch. , 23 BRBS 246 (1990), the possible employer testified that it would accommodate the claimant until she was re-acclimated to a work schedule, and two physicians stated that the job was suitable from a medical and psychiatric standpoint.

8.2.4.5 Suitable alternate employment: vocational evidence

     The trier-of-fact may rely on the testimony of vocational counselors that specific job openings exist to establish the existence of suitable jobs. Turney v. Bethlehem Steel Corp. , 17 BRBS 232, 236 (1985); Southern v. Farmers Export Co. , 17 BRBS 64, 66-67 (1985); Berkstresser v. Washington Metro. Area Transit Auth. , 16 BRBS 231, 233 (1984); Bethard v. Sun Shipbuilding & Dry Dock Co. , 12 BRBS 691 (1980); Pilkington v. Sun Shipbuilding & Dry Dock Co. , 9 BRBS 473, 477-80 (1978). See also Armand v. American Marine Corp. , 21 BRBS 305 (1988) (job must be realistically available).

     The counselors must identify specific available jobs; labor market surveys are not enough. Campbell v. Lykes Bros. Steamship Co. , 15 BRBS 380, 384 (1983); Kimmel v. Sun Shipbuilding & Dry Dock Co. , 14 BRBS 412 (1981). See also Williams v. Halter Marine Serv. , 19 BRBS 248 (1987) (must be specific, not theoretical, jobs).

     The judge may not rely on a psychologist unfamiliar with the local job market as a vocational expert. Villasenor v. Marine Maintenance Indus. , 17 BRBS 99, 103, motion for recon . denied , 17 BRBS 160 (1985). Cf . Feezor v. Paducah Marine Ways , 13 BRBS 509, 512 (1981), petition for review dismissed , 673 F.2d 1328 ( 6th Cir. 1981) (report of clinical psychiatrist who works at rehabilitative service is relevant, if not necessarily sufficient, as to whether the claimant could perform certain jobs and their availability).

     The testimony of a paramedic with no vocational expertise is also insufficient. Rieche v. Tracor Marine , 16 BRBS 272, 274 (1984). Similarly, a physician's testimony on vocational disability may be discredited as beyond his expertise. Sutton v. Genco, Inc. , 15 BRBS 25, 27 (1982); Alley v. Julius Garfinckel & Co. , 3 BRBS 212 (1976). See also McDuffie v. Eller & Co. , 10 BRBS 685 (1979) (merely asking the claimant and his physician whether he can do another job does not meet employer's burden).

     Testimony by a non-expert is not sufficient to show unemployability unless he knows the specific requirements of each job possibility. Villasenor , 17 BRBS at 103. For an example of adequate testimony, the Board upheld a finding that suitable alternate employment was available to the claimant based on the opinions of two longshoremen who considered the claimant's age, physical condition, and seniority, and whose opinions were backed up by that of a vocational expert. Moore v. Strachan Shipping Co. , 13 BRBS 209 (1980).

[ED. NOTE: When considering the physical limitation it may be important to consider the claimant's psychological limitations as well. Armfield v. Shell Offshore, Inc. , 30 BRBS 122 (1996) (the claimant was unable to perform a secretarial job as she suffered from "hopeless/helpless syndrome" - an inability to work because of difficulty with concentration, anxiety and fatigue, and difficulty in handling stressful situations); White v. Peterson Boatbuilding Co. , 29 BRBS 1 (1995) (must consider the mental state of the claimant and the affect of any medication he is taking). ]

     In Hogan v. Schiavone Terminal , 23 BRBS 290 (1990), the employer met its burden even though the vocational expert met with the claimant for only one hour, did not personally contact prospective employers, made none of the job opportunities he found known to the claimant, did not test the employee for manual dexterity or intelligence, and did not know if the claimant could read or write.

     Hence, if the vocational expert is uncertain whether the positions which he identified are compatible with the claimant's physical and mental capabilities, the expert's opinion cannot meet the employer's burden. Uglesich v. Stevedoring Servs. of America , 24 BRBS 180 (1991); Davenport v. Daytona Marina & Boat Works , 16 BRBS 196, 199-200 (1984). See Bostrom v. I.T.O. Corp. of Baltimore , 11 BRBS 63, 65 n.2 (1979) (in dictum , the Board stated that vocational rehabilitation specialist should test claimant's physical and intellectual capabilities before identifying specific, suitable jobs).

     In Brown v. Maryland Shipbuilding & Drydock Co. , 18 BRBS 104 (1986), the Board held that the ALJ failed to explain his finding of suitable alternate employment where he did not explain how the claimant's medical restrictions are compatible with jobs located by the rehabilitation service and he relied on jobs identified by the service without considering the claimant's lack of success in obtaining any of these positions. Similarly, in Stratton v. Travelers Ins. Co. , 35 BRBS 1 (2001) ( en banc ), the Board remanded when it found that the ALJ had not compared the duties of the position with the claimant's restrictions, although the record contained sufficient evidence to do so.

     The Board reasoned, in Warren , that the doctor's lack of awareness of the counselor's method for identifying suitable alternate employment did not detract from his opinion. Furthermore, the Board found that the judge erred in crediting a vocational counselor's report, which stated that until employee's basic needs such as survival and physical and emotional well-being are met, and her physical pain is alleviated, discussion of vocational possibilities must be postponed. This counselor failed to provide a vocational assessment and instead rendered an opinion beyond her expertise.

     If the vocational expert states that no jobs exist which the claimant could reasonably obtain, he is permanently totally disabled. Brandt v. Stidham Tire Co. , 16 BRBS 277 (1984), aff'd and rev'd in part , 785 F.2d 329, 18 BRBS 73 (CRT) ( D.C. Cir. 1986).

     If the only suggested job would require six months of unpaid training, it is arguably unavailable. See Sutton v. Genco, Inc. , 15 BRBS 25 (1982). Vocational rehabilitation training is not a factor to be considered in determining extent of disability, as neither the LHWCA nor regulations require that the claimant undergo vocational rehabilitation training. Hayes v. P & M Crane Co. , 23 BRBS 389 (1990), vacated on other grounds , 24 BRBS 116 (CRT) ( 5th Cir. 1991); Mendez v. Bernuth Marine Shipping , 11 BRBS 21, 29 (1979), aff'd , 638 F.2d 1232 ( 5th Cir. 1981). See also Perry v. Stan Flowers Co. , 8 BRBS 533, 537 (1978); Berkman v. Todd Shipyards Corp. , 7 BRBS 933 (1978); Morgan v. Asphalt Constr. Co. , 6 BRBS 540 (1977). Cf . Villasenor v. Marine Maintenance Indus. , 17 BRBS 99, 102 (1985) (refusal to engage in rehabilitation evaluation may be considered). See Willingness to Work, infra .

     Placing the claimant in a vocational rehabilitation program is not sufficient to establish suitable alternate employment; however, on-the-job training might qualify. Lorenz v. FMC Corp., Marine & Rail Equip. Div. , 12 BRBS 592 (1980). See also Pernell v. Capitol Hill Masonry , 11 BRBS 532, 536 (1979); Love v. W.M. Schlosser Co. , 9 BRBS 749 (1978). See generally Dugger v. Jacksonville Shipyards , 8 BRBS 552 (1978), aff'd , 587 F.2d 197, 9 BRBS 460 ( 5th Cir. 1979).

8.2.4.6 Suitable alternate employment: employee working

     A part-time job may be suitable alternate employment. Royce v. Elrich Constr. Co. , 17 BRBS 157, 159 (1985). If the claimant is performing it satisfactorily and for pay, barring other signs of beneficence or extraordinary effort, it precludes an award of total disability. Harrison v. Todd Pac. Shipyards Corp. , 21 BRBS 339 (1988); Shoemaker v. Sun Shipbuilding & Dry Dock Co. , 12 BRBS 141 (1980). A claimant's self-employment may also be sufficient. Sledge v. Sealand Terminal , 14 BRBS 334 (1981).

     If the claimant is working part-time and attending vocational school part-time, the judge may extrapolate his wage-earning capacity from his part-time wages. Sheek v. General Dynamics Corp. , 18 BRBS 1 (1985). See also Bailey v. Southern Auto Parts , 13 BRBS 944 (1981) (student working part-time).

     In the case of a claimant who was re-employed by the same employer, then fired for reasons not related to his disability, the claimant will be deemed to be at most partially disabled. This assumes that there was no new injury. In this circumstance, the judge may look to the claimant's earnings in the suitable employment to form the basis for the claimant's wage-earning capacity. Mangaliman v. Lockheed Shipbuilding Co. , 30 BRBS 39 (1996).

[ED.NOTE: Should the length of the re-employment be considered when determining the legitimacy of the action? ]

8.2.4.7 Factors affecting/not affecting employer's burden

Incarceration/criminal record

     Incarceration does not preclude total disability if there was no suitable alternate employment available during the period of incarceration. Sam v. Lofeland Bros. Co. , 19 BRBS 228 (1987); Allen v. etropolitan Stevedore , 8 BRBS 367 (1978).

     Further, a pre-injury criminal record is relevant in determining if jobs are realistically available to a claimant. Hairston v. Todd Shipyards Corp. , 849 F.2d 1194, 21 BRBS 122 (CRT) ( 9th Cir. 1988), rev'g 19 BRBS 6 (1986); Piunti v. ITO Corp. , 23 BRBS 367 (1990). Since the employee's criminal record and propensity towards absenteeism and tardiness would preclude him from finding a higher-paying job which did not require physical labor, the lower paying jobs were accepted as suitable alternate employment. Harrison v. Todd Pacific Shipyards Corp. , 21 BRBS 339 (1988).

      Contra Hairston v. Todd Shipyards Corp. , 19 BRBS 6 (1986), rev'd , 21 BRBS 122 (CRT) (an inability to perform suitable alternate employment is not established where the claimant was unable to continue working in the alternate position of maintenance worker in a bank solely because his prior shoplifting record was discovered); Vecchiarello v. W. & J. Sloane, Inc. , 5 BRBS 78 (1976) (although in Vecchiarello , the claimant had obtained alternate employment in the past despite his criminal record).

      Livingston v. Jacksonville Shipyards, Inc. , 32 BRBS 123 (1998). After the claimant's injury, but prior to the date of MMI and the establishment of suitable alternate employment (SAE), the claimant's driver's license was suspended for five years as the penalty for two driving under the influence (DUI) convictions. The Board upheld the ALJ's finding that three driving jobs constituted SAE.

     The Board noted the existence of jurisprudence wherein a criminal conviction/record in existence at the time of the work injury can prevent certain jobs from being realistically available to a claimant. [For instance, a convicted felon can not reasonably obtain employment as a bank worker or security guard.] However, the Board distinguished the instant case from other criminal conviction cases in several respects. In the instant case, the DUI convictions were not a prior impediment to the claimant's obtaining employment which was otherwise suitable for him. The Board stressed that the events which the claimant contends make the driving positions unavailable and unsuitable, occurred after he was injured and before the employer engaged the job search. Additionally, in the instant case, claimant's license was suspended only temporarily, whereas other criminal convictions may forever prohibit a claimant from obtaining certain jobs.

Voluntary withdrawal from labor market

     The fact that a claimant withdraws from the labor market following her injury does not affect entitlement if loss of wage-earning capacity is established. Hoopes v. Todd Shipyards Corp. , 16 BRBS 160, 162 (1984) (withdrawal to take care of child). See also Schenker v. Washington Post Co. , 7 BRBS 34, 39 (1977) (on strike).

Retirement

     Under the LHWCA as amended in 1984, "retirement" is defined as the voluntary withdrawal of an individual from the work force with no realistic expectation of return. Morin v. Bath Iron Works Corp. , 28 BRBS 205 (1994); Johnson v. Ingalls Shipbuilding Div., Litton Systems, Inc. , 22 BRBS 160 (1989); Smith v. Ingalls Shipbuilding Div., Litton Systems, Inc. , 22 BRBS 46 (1989); 20 C.F.R. § 702.601(c). The determination of whether retirement is voluntary or involuntary is based on whether a work-related condition forced the claimant to leave the workforce. If his departure is due to considerations other than the work injury, his retirement is voluntary. Id. ; MacDonald v. Bethlehem Steel Corp. , 18 BRBS 181 (1986). If a claimant voluntarily retires from his employment, and then is impaired by an occupational disease , his recovery of disability compensation is limited to an award for permanent partial disability based on the extent of his impairment as measured by the AMA Guides to the Evaluation of Permanent Impairment . See for example , Morin v. Bath Iron Works Corp. , 28 BRBS 205 (1994)(Where claimant, who was diagnosed with asbestos-related pleural disease prior to his retirement, failed to mention to his doctor that he had breathing difficulties in cold weather, this omission constituted substantial evidence in support of the ALJ's finding that claimant retired voluntarily, rather than due to his lung condition.).

      If a claimant's retirement is involuntary , the post-retirement provisions of Sections 2(10), 8(c)(23), and 10(d)(1), (2) do not apply, and the claimant is entitled to an award based on his loss of wage-earning capacity; Morin , 28 BRBS at 208; Smith , 22 BRBS at 49; Truitt v.Newport News Shipbuilding & Dry Dock Co. , 20 BRBS 79 (1987); MacDonald , 18 BRBS at 184.

Employee's non-cooperativeness with employer's vocational expert

     A claimant's failure to cooperate with the employer's vocational rehabilitation counselor in evaluating the extent of the claimant's disability will weaken her case. In Dangerfield v. Todd Pacific Shipyards Corp. , 22 BRBS 104 (1989), the judge noted that the report and testimony of the employer's counselor indicated the claimant continually raised barriers against cooperating with her and against participating in vocational testing.

     The ALJ in Dangerfield concluded that, based on the employee's pattern of resistance, which was not merely ignorance or forgetfulness, she willfully suppressed evidence necessary to the employer's burden of showing alternate employment. The Board stated that the judge properly considered the claimant's refusal to cooperate with the employer's counselor, and he reasonably concluded that this behavior, which was in the claimant's control, made an award of total disability inappropriate.

Subsequent lay-offs

     An employer is not a long-term guarantor of employment. Olsen v. Triple A Mach. Shops , 25 BRBS 40 (1991); Edwards v. Todd Shipyards Corp. , 25 BRBS 49 (1991). A person who has regular and continuous post-injury employment "must take chances on unemployment like anyone else." Devillier v. National Steel & Shipbuilding Co. , 10 BRBS 649, 658 (1979). Compare Mendez v. National Steel & Shipbuilding Co. , 21 BRBS 22 (1988) (where a claimant works for a period of time in employer's facility but is subsequently laid off due to a lack of suitable work, employer has not established suitable alternate employment) and Suppa v. Lehigh Valley R.R. Co. , 13 BRBS 374 (1981) (compensation not due when employer's reduction-in-force prevents the claimant from working).

     Nevertheless, a change in wage-earning capacity may support modification pursuant to Section 22. See 33 U.S.C. � 922. Such modifications have been permitted when the claimant's wage-earning capacity has increased. Avondale Shipyards v. Guidry , 967 F.2d 1039 ( 5th Cir. 1992); Fleetwood v. Newport News Shipbuilding & Dry Dock Co. , 776 F.2d 1225, 1228, 18 BRBS 12, 27 (CRT) ( 4th Cir. 1985), aff'g 16 BRBS 282 (1984). In all cases, the claimant's current wages must be adjusted for inflation back to the date of injury. See Richardson v. General Dynamics Corp. , 23 BRBS 327 (1990); see also 33 U.S.C. � 908(h).

Subsequent firing

     If a claimant was fired solely for violating a company rule and would otherwise be working for the employer, his disability is partial, not total. Walker v. Sun Shipbuilding & Dry Dock Co. (Walker II) , 19 BRBS 171 (1986). ( See also Topic 8.2.4.2, supra ). Once the employer has made an offer of re-employment, and the claimant is later fired for reasons unrelated to the work-related disability, the employer no longer has a duty to show other suitable alternative employment. Darby v. Ingalls Shipbuilding, Inc. , 99 F. 3d 685, 30 BRBS 93 (CRT) ( 5th Cir. 1996); Brooks v. Director, OWCP , 2 F.3d 64, 27 BRBS 100 (CRT) ( 4th Cir. 1993).

[ED.NOTE: Should the length of the re-employment be considered when determining the legitimacy of the action? ]

8.2.4.8 Jobs in employer's facility

     An employer can meet its burden by offering the claimant a job in its facility, Spencer v. Baker Agricultural Co. , 16 BRBS 205 (1984), including a light-duty job, so long as it does not constitute sheltered employment. Darden v. Newport News Shipbuilding & Dry Dock Co. , 18 BRBS 224 (1986); Harrod v. Newport News Shipbuilding & Dry Dock Co. , 12 BRBS 10, 12-13 (1980). See generally Sheltered Employment, Topic 8.2.3.1, supra . The judge need not examine job opportunities on the open market if the employer offers suitable work. Conover v. Sun Shipbuilding & Dry Dock Co. , 11 BRBS 676, 679 (1979).

     In Swain v. Bath Iron Works Corp. , 17 BRBS 145 (1985), the employer's offer of two light-duty clerical jobs which were found not to be mere beneficence, but rather part of the employer's rehabilitation program, allowing the claimant to work back up to his regular employment while earning his pre-injury wages, carried its burden of proving suitable alternate employment. Accord Cason v. Norfolk Shipbuilding & Dry Dock Corp. , 11 BRBS 50 (1979); Caldwell v. George Hyman Constr. Co. , 10 BRBS 112 (1979).

     The Board has also affirmed a finding of suitable alternate employment where the employer offers claimant a job tailored to his specific restrictions so long as the work is necessary. Darden v. Newport News Shipbuilding & Dry Dock Co. , 18 BRBS 224, 226 (1986).

     Similarly, where the claimant is still working for the employer, is advancing, and has further prospects of advancement, the employer's burden has been met. Fleetwood v. Newport News Shipbuilding & Dry Dock Co. , 776 F.2d 1225, 18 BRBS 12 (CRT) ( 4th Cir. 1985), aff'g 16 BRBS 282 (1984). But see Trask v. Lockheed Shipbuilding & Constr. Co. , 17 BRBS 56, 59-60 (1985) (no suitable alternate employment where the claimant employee was turned down by the employer for alternate positions).

     Similarly, where the employer fires the employee because of her medical problems, Base Billeting Fund, Laughlin Air Force Base v. Hernandez , 588 F.2d 173, 9 BRBS 634 ( 5th Cir. 1979), or refuses to rehire a claimant who had quit on his physician's order, Eastern Steamship Lines v. Monahan , 110 F.2d 840, 842 ( 1st Cir. 1940), it has not shown suitable alternate employment.

     A proffered job which is inaccessible to the claimant because he cannot physically handle a long commute is also unavailable. Diamond M Drilling Co. v. Marshall , 577 F.2d 1003, 1007-09, 8 BRBS 658, 661-63 ( 5th Cir. 1978), aff'g 6 BRBS 114 (1977); Sampson v. FMC Corp., Marine & Rail Equip. Div. , 10 BRBS 929 (1979).

     If the offer is sincere, the employer may meet its burden of establishing suitable alternate employment by offering the claimant her choice of filled positions and promising to fire the person currently holding the position. Beulah v. Avis Rent-A-Car , 19 BRBS 131 (1986).

     The employer can meet its burden even if it first introduces evidence of suitable alternate employment at the hearing. Turney v. Bethlehem Steel Corp. , 17 BRBS 232, 236-37 n.7 (1985). Such a late offer is dubious, however. Diamond M Drilling Co. v. Marshall , 577 F.2d 1003, 1007 n.5, 8 BRBS 658, 661 n.5 ( 5th Cir. 1978), aff'g 6 BRBS 114 (1977); Jameson v. Marine Terminals , 10 BRBS 194, 203 (1979). The judge need not credit an offer of light-duty work first made at the hearing, especially if it is a general offer not mentioning any specific, available job within the claimant's capability. Letendre v. Braswell Shipyards , 11 BRBS 56 (1979).

     Once the employer has made an offer of re-employment, and the claimant is later fired for reasons unrelated to the work-related disability, the employer no longer has a duty to show other suitable alternative employment. Darby v. Ingalls Shipbuilding, Inc. , 99 F. 3d 685, 30 BRBS 93 (CRT) ( 5th Cir. 1996); Brooks v. Director, OWCP , 2 F.3d 64, 27 BRBS 100 (CRT) ( 4th Cir. 1993).

8.2.4.9 Diligent search and willingness to work

     If the employer has established suitable alternate employment, the employee can nevertheless prevail in his quest to establish total disability if he demonstrates that he diligently tried and was unable to secure employment. Hairston v. Todd Pacific Shipyards Corp. , 849 F.2d 1194, 1196 ( 9th Cir. 1988); Fox v. West State Inc. , 31 BRBS 118 (1997); Hooe v. Todd Shipyards Corp. , 21 BRBS 258 (1988).

     The claimant must establish reasonable diligence in attempting to secure some type of suitable alternate employment within the compass of opportunities shown by the employer to be reasonably attainable and available, and must establish a willingness to work. New Orleans (Gulfwide) Stevedores v. Turner , 661 F.2d 1031, 1043, 14 BRBS 156, 165 ( 5th Cir. 1981), rev'g 5 BRBS 418 (1977). See also Palombo v. Director, OWCP , 937 F.2d 70, 25 BRBS 1 (CRT) ( 2d Cir. 1991) ( Second Circuit added in this step to the Salzano burden-shifting scheme); Trans-State Dredging v. Benefits Review Bd. (Tarney) , 731 F.2d 199, 201-02, 16 BRBS 74, 76 (CRT) ( 4th Cir. 1984), rev'g 13 BRBS 53 (1980); Royce v. Elrich Constr. Co. , 17 BRBS 157, 159 n.2 (1985).

     The ALJ does not abuse his discretion by noting the claimant's lack of diligence in seeking employment. Turney v. Bethlehem Steel Corp. , 17 BRBS 232, 236-37 n.7 (1985). This duty, however, does not displace the employer's initial burden of establishing suitable alternate employment. Roger's Terminal & Shipping Corp. v. Director, OWCP , 784 F.2d 687, 691, 18 BRBS 79, 83 (CRT) ( 5th Cir. ), cert . denied , 479 U.S. 826 (1986); Manigault v. Stevens Shipping Co. , 22 BRBS 332 (1989).

     If the claimant declines to consider a suitable available job, the judge may nonetheless find that it constitutes suitable alternate employment. Dove v. Southwest Marine , 18 BRBS 139 (1986) (the employee showed a lack of due diligence in trying to obtain a job by rejecting jobs paying less than $25,000.00 a year); Dionisopoulos v. Pete Pappas & Sons , 16 BRBS 93 (1984).

[ED. NOTE: Query: Under the ADA, if a claimant voluntarily tells a potential employer of his disability, is this considered to be a lack of due diligence in securing suitable alternate employment? ]

     On the other hand, if the claimant is physically incapable of performing the suggested suitable alternate employment, the judge need not reach the issue of willingness to work. Royce , 17 BRBS at 159.

     A claimant's testimony that he could perform certain jobs, but that his efforts to obtain one have been futile, does not meet employer's burden. Rieche v. Tracor Marine , 16 BRBS 272, 274 (1984). Moreover, if the claimant demonstrates he diligently tried and was unable to obtain a job identified by employer, he may prevail. See Roger's Terminal , 784 F.2d at 691, 18 BRBS at 83 (CRT).

     Where the claimant met with the vocational expert's identified potential employers and was not hired, and the judge took judicial notice that the local unskilled labor market was especially competitive in light of recent immigration of young, able-bodied men from Cuba and Haiti, the Board upheld his finding of permanent total disability. Parris v. Eller & Co. , 16 BRBS 252 (1984). See Army & Air Force Exch. Serv. v. Neuman , 278 F. Supp. 865 ( W.D. La. 1967) (trier-of-fact may consider economic condition in claimant's area).

     The claimant must reasonably cooperate with his employer's rehabilitation specialist and submit to rehabilitation evaluations. Vogle v. Sealand Terminal , 17 BRBS 126, 128 (1985). The Board has found this requirement to be consistent with the Turner requirement of demonstrating willingness to work. Villasenor v. Marine Maintenance Indus. , 17 BRBS 99, 101-02 (1985). The judge must consider any failure to cooperate in evaluating the expert's testimony. For example, the judge may excuse a vocational rehabilitation counselor's lack of specificity regarding suitable alternate employment if the claimant was uncooperative. See Pernell v. Capitol Hill Masonry , 11 BRBS 532, 538 (1979).

     As part of his general power to direct and authorize discovery, a judge may compel such an evaluation. See 20 C.F.R. § 702.341; Villasenor , 17 BRBS at 102 n.5; Bonner v. Ryan-Walsh Stevedoring Co. , 15 BRBS 321, 325 (1983).

8.2.4.10 Date total disability becomes partial

     Cases which have held that total disability becomes partial on the date of maximum medical improvement have been overturned. Seidel v. General Dynamics Corp. , 22 BRBS 403 (1989) and Turney v. Bethlehem Steel Corp. , 17 BRBS 232, 235-36 n.5 (1985) were overturned by Rinaldi v. General Dynamics Corp. , 25 BRBS 128 (1991) (An injured employee who establishes an inability to return to his usual employment duties with his employer is entitled to an award of permanent total disability compensation from the date maximum medical improvement is established to the date on which the employer demonstrates the availability of suitable alternate employment.). See also Stevens v. Lockheed Shipbuilding Co. , 22 BRBS 155 (1989), rev'd sub nom . Stevens v. Director, OWCP , 909 F.2d 1256, 23 BRBS 89 (CRT) ( 9th Cir. 1990), cert . denied , 498 U.S. 1073 (1991). Such a holding ignores the economic aspect of a claimant's disability and assumes that the job market was the same at the time of maximum medical improvement as it was when the job showing was made. Stevens , 909 F.2d 1256.

     The Board and those circuits which have spoken on this issue are now in agreement that total disability becomes partial on the earliest date that the employer establishes suitable alternate employment. Palombo v. Director, OWCP , 937 F.2d 70, 25 BRBS 1 (CRT) ( 2d Cir. 1991); Director, OWCP v. Berkstresser , 921 F.2d 306, 24 BRBS 69 (CRT) ( D.C. Cir. 1990), rev'g 16 BRBS 231 (1984), 22 BRBS 280 (1989); Stevens v. Director, OWCP , 909 F.2d 1256, 23 BRBS 89 (CRT) ( 9th Cir. 1990), rev'g Stevens v. Lockheed Shipbuilding Co. , 22 BRBS 155 (1989), cert . denied , 498 U.S. 1073 (1991); Rinaldi v. General Dynamics Corp. , 25 BRBS 128 (1991); Harrison v. Todd Pac. Shipyards Corp. , 21 BRBS 339 (1988); Darden v. Newport News Shipbuilding & Dry Dock Co. , 18 BRBS 224 (1986).

From the date of maximum medical improvement to the date suitable alternate employment is shown, the claimant's disability is total. Stevens , 909 F.2d 1256.