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PERSPECTIVES FROM THE CLAIMANT’S BAR
By Paul Doolittle
Paul M. Doolittle, P.A.
Disproving Suitable Alternate Employment
Perform exhaustive, diligent job search
If truly disabled, use Department of
Labor vocational rehabilitation services
to prove inability to find work
Retain your own vocational expert
Repeatedly ask former Employer for
work within restrictions
Disproving Labor Market Surveys
Computer or other skills required
Background (criminal, traffic violations, bankruptcy)
Education and/or experience
Appearance
Licenses (CDL, security guard, etc.)
Florida has the 4th highest rate of unemployment in the United States!
Geographical Area
May be less than 50 miles if pain inhibits travel
Overseas Jobs Patterson v. Omiplex World Services,
36 BRBS 149 (2003) Limited to “unique facts” of case If Claimant is required to move from
permanent residence, the job is not suitable
Daniel Raymond v. Blackwater Security Consulting, LLS OALJ Case No.: 2009 – LDA – 00293 (04/15/2010), reversed by the BRB on 4/28/11, see Nos. 10-0454 & 10-0454A
Restrictions frequently prevent overseas travel
and/or work
P.T.S.D.Certain
medications: Coumadin, pain, anti-depressant
Respiratory illnesses
Claimants with deep vein thrombosis may NOT fly
Asadabad, Afghanistan - 2008
“BUT FOR REDUCTION IN FORCE, CLAIMANT WOULD
HAVE HAD WORK.”
Too bad for Employer; must still show suitable alternate employment
Edwards v. Director, 999 F.2d 1374 (9th Cir. 1993)
Norfolk Shipbuilding & Drydock Corp v. Director, 193 F.3d 797 (4th Cir. 1999)
§§8(c)(21) and 8(h) require Claimant’s post injury wage earning capacity be adjusted to account for inflation to
represent the wages that the post injury job paid at the time of injury.
Quan v. Marine Power & Equipment Company, 30 BRBS 124 (1996)
Richardson v. General Dynamics Corp., 23 BRBS 327 (1990)
No “retro-voc” but Employer may show existence of jobs at earlier point in time,
even if they no longer exist.
Stevens v. Director, 909
F.2d 1256 (9th Cir. 1990)
Employer may show suitable alternate
employment at time of MMI, even
several years after that point.
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d
540 (4th Cir. 1988)
FACTORS REGARDING CLAIMANT’S RELOCATION
- Claimant’s residence at time claim filed
- Reason for relocation
- Motivation for relocation - Duration of stay in new community
- Ties to new community - Availability of suitable jobs in
that community as opposed to former residence
Degree of undue prejudice to Employer in proving suitable
alternate employment in Claimant’s new community
See v. Wash. Metro Area Transit Auth., 36 F.3d 375 (4th Cir. 1994)
Wood v. U.S. Department of Labor, 112 F.3d 592 (1st Cir. 1997)
Wood Court held Claimant’s chosen community is presumptively the best place for measuring wage earning capacity;
Employer bears the burden of showing original move, or a refusal to move again, is unjustified; and
Economic judgments generally control.