By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi
Most cases under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901, et seq., involve the issue of a claimant's entitlement to disability. Disability is defined at 33 U.S.C.S. § 902(10) as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." It is often said that disability is an economic concept based upon a medical foundation. Metropolitan Stevedore Co. v. Rambo (Rambo I), 515 U.S. 291, 297, 132 L. Ed. 2d 226, 233, 115 S. Ct. 2144, 2148, 30 BRBS 1(CRT) (1995); Todd Shipyards, Inc. v. Fraley, 592 F.2d 805, 811, 10 BRBS 9 (5th Cir. 1979).
The employee has the general burden of establishing the extent of disability without the aid of any presumption. Gardner v. Director, OWCP, 640 F.2d 1385, 1391, 13 BRBS 101 (1st Cir. 1981); Trask v. Lockheed Shipbuilding & Construction Co., 17 BRBS 56 (1980). However, the burden shifts between the claimant and the employer upon the submission of certain levels of proof. New Orleans (Gulfwide) Stevedores, Inc. v. Turner, 661 F.2d 1031, 1038, 14 BRBS 156 (5th Cir. 1981); Odom Construction Co. v. U.S. Dept. of Labor, 622 F.2d 110, 115, 12 BRBS 396 (5th Cir. 1980), cert. denied, 450 U.S. 966, 67 L. Ed. 2d 614, 101 S. Ct. 1482 (1981). In order to establish entitlement to total disability benefits, the claimant must initially establish a prima facie case by showing that he cannot return to his regular or usual employment due to his work-related injury. Turner, 661 F.2d at 1038; Elliott v. C&P Telephone Co., 16 BRBS 89 (1984).
Once the claimant establishes that he is unable to perform his usual work, the burden shifts to the employer to demonstrate the availability of realistic job opportunities within the geographic area where the claimant resides, which the claimant, by virtue of his age, education, work experience, and physical restrictions, is capable of performing. Trans-State Dredging v. Benefits Review Board, 731 F.2d 199, 201, 16 BRBS 74(CRT) (4th Cir. 1984); Turner, 661 F.2d at 1042-1043. An employer may meet this burden by the submission of expert testimony that suitable alternative employment is available in the geographic region where the claimant resides [see Trans State Dredging 731 F.2d at 202; Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 500, 29 BRBS 79(CRT) (5th Cir. 1995)], or by offering the claimant a modified or light-duty position within its facility. [see Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93(CRT) (5th Cir. 1996); Darden v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986)].
What happens when the employer has met its burden of proof? The case law reflects that the burden returns to the claimant to establish that he has diligently sought jobs such as those identified by the employer without success. If he has diligently sought such work without success, he may still establish entitlement to total disability despite employer's proof. Palombo v. Director, OWCP, 937 F.2d 70, 73, 25 BRBS 1(CRT) (2d Cir. 1991); CNA Ins. Co. v. Legrow, 935 F.2d 430, 434, 24 BRBS 202(CRT) (1st Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 542, 21 BRBS 10(CRT) (4th Cir. 1988); Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 691, 18 BRBS 79(CRT) (5th Cir. 1986), cert. denied, 479 U.S. 826, 93 L. Ed. 2d 51, 107 S. Ct. 101 (1986).
The Fifth Circuit described the burden on the claimant once the employer establishes the availability of suitable alternative employment as follows:
This brings into play a complimentary burden that the claimant must bear, that of establishing reasonable diligence in attempting to secure some type of alternate employment within the compass of employment opportunities shown by the employer to be reasonably attainable and available.
Turner at 1043.
A claimant who fails to exercise due diligence in seeking suitable alternative employment with a lower pay scale must be found to be only partially disabled. Southern v. Farmers Export Co., 17 BRBS 64 (1985); Dionisopoulos v. Pete Pappas & Sons, 16 BRBS 93 (1984). Likewise, a claimant who fails to exercise due diligence in seeking available alternative employment paying his same wage must be found to have no disability. Wilson v. Virginia International Terminals, 40 BRBS 46 (2006); Walters v. Ingalls Shipbuilding, Inc., 116 F.3d 1477, 31 BRBS 75(CRT) (5th Cir. 1997).
Since only a diligent job search would meet claimant's complimentary burden of proof, it is important to determine what a diligent job search is -- and what it is not. The Fifth Circuit defined a diligent job search as when a claimant seeks employment "...in a manner normally pursued by a person genuinely seeking work with his determined capabilities." Turner at 1043. Black's Law Dictionary defines "diligent" as "attentive and persistent in doing a thing; steadily applied; active; sedulous; laborious; unremitting; untiring." Black's Law Dictionary (5th Ed. 1979).
In the following cases, the courts have established what is not a diligent search for work:
Refusing a lower paying jobDove v. Southwest Marine of San Francisco, 18 BRBS 139 (1986)
Refusal to cooperate with employer's vocational rehabilitation consultantVogle v. Sealand Terminal, Inc., 17 BRBS 126, 128 (1985)
Exhibiting a negative and abrasive attitude to post-injury employersWilson v. Dravo Corp., 22 BRBS 463, 466 (1989)
Routinely applying for jobs for which one is not qualified making contacts via cold calls rather than contacting employers who had advertised available positions - exaggerating weaknesses such as using crutches when none were required - de-emphasizing one's strong points - unwillingness to work weekends or mornings - failing to follow up on applicationsWilson v. Virginia International Terminals, 40 BRBS 46, 48 (2006)
Refusal to seek suitable work prior to reaching maximum medical improvementBerezin v. Cascade General Inc., 34 BRBS 163 (2000)
Reluctance to accept employment outside one's craft for fear of forfeiting fringe benefitsNew Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d at 1034
Failing to submit applications to employers contactedM.A. v. Northrop Grumman, 41 BRBS 810 (ALJ) (2007)
Contacting employers only to meet search requirements for unemployment - failing to list relevant information in job search log - sending applications to incorrect addresses - seeking jobs outside of physical limitations - lack of follow up with employersHarrell v. Newport News Shipbuilding & Dry Dock Co., 38 BRBS 239 (ALJ) (2004)
Applying for jobs only through a job start program and not on own - long gaps in job searchWilliams v. Newport News Shipbuilding & Dry Dock Co., 38 BRBS 447 (ALJ) (2004)
Failing to seek work while in a training program that would not interfere with ability to seek workKee v. Newport News Shipbuilding & Dry Dock Co., 33 BRBS 221 (2000)
Diligently seeking skilled positions but not applying for unskilled positionsJackson v. Christina Service Co., 30 BRBS 274 (ALJ) (1996)
Failure to file employment applications – emphasizing restrictions to prospective employers - failure to follow medical advice to make more employableStuart v. Ingalls Shipbuilding, Inc., 25 BRBS 428 (ALJ) (1991)
Failure to promptly respond to job opportunities when presented - displaying an offensive attitude - refusal to interview on day after Christmas - lack of interest in adult EducationSimmons v. ITO Corp., 24 BRBS 442 (ALJ) (1991)
Only applying for one job through the unionBlackwell v. Ingalls Shipbuilding, Inc., 24 BRBS 539 (ALJ) (1991)
Limiting the job search to a small geographic areaDarden v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 509 (ALJ) (1990)
Failure to apply for jobs in employer's labor market surveyLaRosa v. King & Co., 40 BRBS 29 (2006)
Refusal to consider jobs that could result in loss of longshoreman statusRhine v. Stevedoring Services of America, 596 F.3d 1161, 1166, 44 BRBS 9(CRT) (9th Cir. 2010)
No effort to contact potential employers until receipt of labor market surveys shortly before trialChristian v. Service Employers International, Inc., 44 BRBS 967 (ALJ) (2010)
Seeking four jobs in four yearsBrown v. Marine Terminals, 45 BRBS 239 (ALJ) (2010)
The Act contemplates that a claimant will make a diligent effort to return to work within his residual capabilities. However, all too often dreams of secondary gain, confusion as to whose responsibility it is to find him a job, and a sense of entitlement result in claimants making a sham search for work. It is up to the administrative law judge to determine whether the claimant is making a diligent search for work or just diddling around.
© Copyright 2011 by Paul B. Howell. All rights reserved. Reprinted with permission.
This article will appear in an upcoming issue of the Benefits Review Board Service - Longshore Reporter (LexisNexis).
Unfortunately, vocational counselors hired by Longshore employers tend to identify the same three types of jobs: security guard, convenience store cashier, or telemarketer. Security guard jobs are typically out of the question due to the fact that any injury bad enough to prevent the injured worker from performing light duty at the shipyard will fall outside of the requirements of a security job. Additionally, security guard jobs often require state-mandated licensing for applicants, which few shipyard workers would already have; and since the labor market survey is usually done in conjunction with a simultaneous reduction in the worker's monetary benefits, they should hardly be expected to pay for this licensing on the off chance that they might get said job. While at first blush, convenience store cashier seems like a job anyone could do, there is often a requirement to lift above average weights in order to restock the store's supplies, thus ruling out anyone with an injury significant enough to preclude further Longshore employment. Telemarketing jobs, which likewise seem like jobs anyone could reasonably do, are often eliminated on the basis that shipyard workers, by and large, are poorly educated and lack the minimum typing skills required at such positions.
More importantly, injured workers confronted with no longer being able to return to their pre-injury work are asked to drive to apply for the jobs listed in the labor market survey AND their already limited benefits are reduced, putting an even greater financial strain on the worker, especially given current gas prices. And unlike their transportation to medical visits due to the injury, they are not reimbursed for travel to potential employers due to this same injury. It's a win for the Employer, because they can pay them less based on "theoretically available jobs" and effectively curtail their efforts to do anything about said reduction.
Injured workers without counsel often concede defeat at that point. Injured workers WITH counsel are relegated to the Informal Conference procedure that must be pursued before a trial may even be requested at the ALJ level, wherein Claims Examiners with the Department of Labor are now given the power to make findings of fact without any formal legal training, any evidentiary rules, or any discovery process outside of documents informally provided to the Claims Examiners. These findings of fact are effectively unappealable, as current law dictates that the Employer has to fail to comply with the Claims Examiner's Informal Conference recommendation or the injured worker becomes responsible for his counsel's fees, EVEN IF said worker is ultimately victorious at trial. Not only does this practice make it difficult for the injured worker to proceed to an amicable outcome at the ALJ level in accordance with the Act, it effectively dissuades competent counsel from practicing Longshore law.
Ultimately, this application of the labor market survey primarily serves as a scam to cheat injured workers who are already receiving, at best, 2/3rds of their pre-injury pay. As the Act's intended purpose is one of humanitarian aid for the injured worker (not a loophole to monetarily benefit Longshore employers and their esteemed counsel), this oft-used stalling tactic by Employers' counsel and insurance adjusters is unconscionable. If these workers felt any sense of entitlement, it was an entitlement to a safe and injury-free workplace, under a system that does not penalize them when Employer fails to offer such an environment AND THEN fails to offer them the security of future employment after their on-the-job injury.