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.