When an injured Longshore or Defense Base Act claimant cannot return to their usual work, an employer must demonstrate the availability of suitable alternative employment (“SAE”). In many cases, the employer must establish that there are realistically available jobs within the geographic area where claimant resides, which the claimant is capable of performing, considering their age, education, work experience, and physical restrictions. If the employer successfully demonstrates SAE, then the claimant must demonstrate that they diligently tried to secure employment.
A potential problem can arise when the claimant actually has obtained work following their injury, but the employment is temporary in nature. That is what happened in McMiller v. Serv. Employees Int’l, a recent unpublished decision from the Benefits Review Board. There, the Board noted that:
[W]here an injured employee obtains various temporary jobs following her injury, such fact does not necessarily defeat a claim for total disability. Carter, 14 BRBS at 97; see also Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81 (CRT) (9th Cir. 1993), cert. denied, 511 U.S. 1031 (1994) (court held that short-lived employment did not establish that suitable alternative employment was realistically and regularly available on the open market); Mendez v. National Steel and Shipbuilding Co., 21 BRBS 22 (1988).
In McMiller, the claimant held a “short-lived position with Rose International” but that was insufficient employment to establish SAE. And the employer failed to submit any additional evidence concerning the availability of SAE, thus failing to satisfy its burden. Accordingly, the claimant remained totally disabled.
What’s the takeaway? Employers and carriers should always commission a labor market survey; and claimants should always continue their diligent search for work.
McMiller v. Serv. Employees Int’l, Inc., BRB No. 13-0579 (Jul. 29, 2014)