Judge's Benchbook:

Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic 39 - Administration and Vocational Rehabilitation--Generally


Contents of Main Volume | Contents of Supplement

DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)

Description

Topic

Administration and Vocational Rehabilitation--Generally

39.1

Secretary's Authority to Direct Vocational Rehabilitation 39.3

TOPIC 39

 

Topic  39.1     Administration and Vocational Rehabilitation--Generally

 

Meinert v. Fraser , 37 BRBS 164 (2003).

 

            Here the employer appeals to the Board (to review under its abuse of discretion standard) the Vocational Rehabilitation Plan approved by the District Director. The employer contended that vocational rehabilitation is unnecessary because the claimant retains a wage-earning capacity on the open market and that upon completion of the plan, the claimant will have a lower earning capacity in motorcycle repair than that demonstrated by employer's labor market survey. The Employer averred that the evidence it developed after the implementation of the plan demonstrates the validity of its contentions. The employer also contends that motorcycle repair was merely an interest of the claimant's and that is why retraining in this area was pursued.

 

            After reviewing the pertinent regulations (20 C.F.R. §� 702.501-702.508) and the statute (Section 39(c)(2), the Board noted that neither the LHWCA nor the regulations provides an explicit role for an employer in the formulation of a rehabilitation plan. The Board held that the employer has not shown that the district director had abused her discretion in implementing the plan, as it failed to demonstrate that the district director did not comply with the regulatory criteria. The Board found that the counselor had adequately documented the wages that the claimant would earn upon completion of the program, as the claimant had no earnings at the time the plan was documented. It further noted that the counselor had documented his placement efforts prior to recommending retraining courses, and he demonstrated how the claimant's vocational background and aptitude testing fit well with the new skills claimant will obtain at the technical college. Further, the Board noted that "[I]t is self-evident that a claimant is more likely to succeed at a plan if, in addition to its being suitable for him, it involves a vocation in which he is interested."

 

            Employer sought to enter into evidence information which it alleges would establish that the claimant had a current wage-earning capacity without the retraining program that was at least equal to what the claimant would earn upon his completion of the plan. The Board declined to allow the information to be entered into evidence stating that "Assuming arguendo , the validity of employer's contention, employer cannot demonstrate an abuse of the district director's discretion where the plan is otherwise fully documented according to the regulatory criteria."

 

            The Board also declined to address the employer's contentions regarding its potential liability for disability benefits during the retraining period. It stated that, "This issue is one that is properly presented to an [ALJ] in the first instance, and employer is entitled to a full evidentiary hearing on this issue."


Topic  39.3     Administration and Vocational Rehabilitation�Secretary's Authority to Direct Vocational Rehabilitation

 

Opiopio v. United States Marine Corps , (Unpublished) (BRB No. 04-0340)(December 7, 2004).

 

            In this suitable alternate employment case, the Board found that the ALJ exceeded her authority by ordering the employer to provide the claimant with a job that complies with the doctor's work restrictions and to enforce the restrictions.  Additionally, the Board held that, contrary to the ALJ's suggestion that the employer provide the claimant with vocational rehabilitation assistance if it was unable to provide a suitable light duty position, the employer is not obligated under the LHWCA to offer the claimant vocational rehabilitation.  Since Section 39�(1)-(2) and the implementing regulations, 20 C.F.R. § 702.501 et seq. , authorize the Secretary of Labor to provide for the vocational rehabilitation of permanently disabled employees in certain circumstances, ALJs do not have the authority to provide vocational rehabilitation.


Topic  39.3     Secretary's Authority to Direct Vocational Rehabilitation

 

Castro v. General Construction Company , 37 BRBS 65 (2003).

 

            In this total disability award case geographically in the Ninth Circuit , the employer argued that the Board should not have awarded total disability benefits during the claimant's DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass'n , 27 BRBS 192 (1993), aff'd 40 F.3d 122, 29 BRBS 22(CRT) ( 5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer's expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.) The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse] , 315 F.3d 286, 36 BRBS 85(CRT) ( 4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

 

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program. The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment. If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried. "The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment." Additionally the Board noted that while Congress enacted a statute that dealt with "total" and "partial" disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee's physical condition.

 

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period. The Board found that "Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits."

 

            The board also rejected the employer's contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue. "Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits."


Topic  39.3     Secretary's Authority to Direct Vocational Rehabilitation

 

Castro v. General Construction Company , 37 BRBS 65 (2003).

 

            In this total disability award case geographically in the Ninth Circuit , the employer argued that the Board should not have awarded total disability benefits during the claimant's DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass�n , 27 BRBS 192 (1993), aff�d 40 F.3d 122, 29 BRBS 22(CRT) ( 5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer's expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.)  The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse] , 315 F.3d 286, 36 BRBS 85(CRT) ( 4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

 

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program.  The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment.  If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried.    �The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment.�  Additionally the Board noted that while Congress enacted a statute that dealt with �total� and �partial� disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee's physical condition.

 

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period.  The Board found that �Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits.�

 

            The Board also rejected the employer's contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue.  �Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits.�