On October 26, 2007, the claimant, a container repairman, suffered injuries to his arm, shoulder and back while in the scope of his employment. The employer paid the claimant temporary total disability benefits through January 26, 2009, and the claimant sought continued benefits. The administrative law judge found that the claimant had reached maximum medical improvement and could not return to his former employment. In doing so, the judge rejected the employer’s and carrier’s vocational rehabilitation evidence. In particular, the ALJ found that the vocational counselor based his search for alternate employment primarily on the claimant’s lifting restrictions, but the claimant had additional requirements, including the necessity of frequent breaks and limitations on the amount of sitting and standing he could do.
The ALJ found that the claimant’s job at his family’s restaurant was within his restrictions and represented his true wage-earning capacity. In so holding, the judge decided that the claimant’s wage-earning capacity was approximately one-half of the figure offered by the vocational rehabilitation counselor. The BRB affirmed on the grounds that the employer and carrier did not provide sufficient evidence for the administrative law judge to ascertain the suitability of the positions offered. In particular, the BRB found that “the lack of specific information regarding all the physical duties required of the positions identified by employer made it impossible for her to determine whether in fact those positions are suitable for claimant.” Id. The BRB relied on decisions in Bunge Corp. v. Carlisle, 34 BRBS 79 (2000) and Hernandez v. National Steel & Shipbuilding Co., 32 BRBS 109 (1998) as support for its holding. The BRB stated, “[a]lthough employer correctly notes that a vocational expert can rely on standard job descriptions to flesh out the requirements of identified jobs, employer nonetheless must provide sufficient evidence for the administrative law judge to ascertain the suitability of the positions. Id.
Fifer v. Marine Repair Services, Nos. 10-0449 and 11-0117, 2011 WL 1451830 (BRBS March 24, 2011) (unpublished).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)