To establish a claim of total disability, a claimant must demonstrate an inability to return to his usual work as a result of his injury. This can be established by comparing the claimant’s medical restrictions to their job duties.
If the claimant establishes total disability, then the burden shifts to the employer to show that the claimant can perform his usual job or, alternatively, the claimant can return to suitable alternative employment (or “SAE”). “Suitable” means appropriate for the claimant considering his age, education, vocational history, and physical capabilities.
Recently, in an unpublished decision, the Benefits Review Board addressed a sticky situation. What happens when an employer offers the claimant their old job (i.e., their usual and customary employment), purportedly in reliance of a functional capacity evaluation that established the claimant’s work restrictions?
The claimant in Burton v. ManTech International injured his right knee and left shoulder while working in Iraq. The injury occurred while disembarking from a helicopter with a 300-pound tool box. Claimant returned to the United States, where he received medical treatment (including surgeries). Claimant was released “to full duty” for the right knee after 7 months of treatment. A year later, and after a functional capacity evaluation, he was released to “full duty with no limitations, other than common sense in use of his left arm” for his shoulder injury. The employer then offered Claimant his old job, which Claimant declined, thinking he could not perform the strenuous job duties. The question became whether this offer constituted suitable alternative employment. The answer, was “No.”
The administrative law judge rationally found that claimant testified credibly as to his job requirements. On February 19, 2013, Dr. Ray stated that claimant “is allowed to return to full duty with no limitations, other than common sense in use of the left arm.” Dr. Ray also stated that claimant “continues to have significant soreness in the left shoulder and [a] difficult time using the arm above his head.” The administartive law judge noted that there is no evidence that Dr. Ray was aware of the actual requirements of claimant’s job duties, and he found that Dr. Ray’s opinion that claimant could return to full-duty work is not supported by the results of theFCE. The administrative law judge provided a rational basis for according “little weight” to Dr. Ray’s opinion regarding claimant’s ability to return to full-duty work, and we therefore reject employer’s contention that the administrative law judge erred in this regard.
The administrative law judge rationally relied on the results of the FCE to determine claimant’s post-injury physical limitations . . . and properly compared these restrictions to the physical requirements of claimant’s usual work to discern whether claimant is capable of returning to that work. The administrative law judge’s finding that claimant is not capable of returning to his prior job with employer because of limitations resulting from his work-related left shoulder injury is rational and supported by substantial evidence. Therefore we affirm the administrative law judge’s finding that claimant established a prima facie case of total disability.
The administrative law judge next found that employer did not demonstrate the availability of suitable alternative employment. The administrative law judge found that the only evidence regarding this issue is claimant’s testimony that employer offered him his former job in March 2013 and that claimant refused the offer. The administrative law judge found that claimant credibly testified that he sent the FCE report to employer and told employer that he would like to return to work but would need help carrying tools. Claimant stated that he received the termination letter three weeks later. The administrative law judge stated that employer cannot meet its burden to show suitable alternative employment “by offering the claimant the very job he cannot perform.” We agree, as there is no evidence that employer offered to modify the job to accommodate claimant’s restrictions. . . .
See Burton v. ManTech International, BRB No. 15-0279 (Mar. 23, 2016) (citations omitted and emphasis added).