suitable alternative employment

Work is vitally important in our lives.  It is something that gives us identity, purpose, and sometimes even inspiration. Indeed, great philosophers have pontificated about the importance of work in our lives.  For example, Voltaire in his famous novel Candide states that “work keeps at bay three great evils:  boredom, vice, and need.”

Now, there are some who believe that people would be more than happy to have complete leisure every moment of their lives.  That is actually not the case.  Work is something we innately want in our daily lives to propel us forward and make our mark in the world.  That is why becoming disabled from a work-related injury can be devastating to someone who wants to do their job.  It is similar to a great athlete who gets injured and can no longer excel in the sport that was such an integral part of their lives for years.

In the case of someone covered by the Longshore and Harbor Workers’ Compensation Act (Longshore Act) and the Defense Base Act, a person disabled by a work-related injury should be allowed to work in a related field that does not exacerbate that injury.  That option of work in a related field is called “suitable alternative employment” in legal terms.  For details about the concept in your specific circumstances, you should speak an experienced Defense Base Act attorney in Florida for more information.

This blog will cover how the Longshore Act and the Defense Base Act put the burden on employers, and/or their workers’ compensation insurance carriers, to assist you in finding suitable alternative employment in case of a work-related injury.

The Longshore Act Process Leading to Suitable Alternative Employment

As you know, the Longshore Act and the Defense Base Act provide workers’ compensation to eligible workers who are injured in the course of their employment.  Accordingly, if you are covered by the Longshore Act or if you are a civilian working for the U.S. military at a base overseas under the Defense Base Act, then you are entitled to workers’ compensation for your work-related injuries.

Notably, the Longshore Act and Defense Base Act will not only cover medical costs but also compensate you for the economic harm suffered as a result of your decreased ability to earn an income.

Making an Initial Showing of Total Disability. If you seek workers’ compensation benefits for total disability under the Longshore or Defense Base Acts, you must first demonstrate that you cannot perform your regular job because of the work-related injury.

Employer Must Establish the Existence of Suitable Alternative Employment.  Once you have made your preliminary showing of disability, your employer then takes on the burden of showing that there are suitable alternatives to work that you can perform, even if you can no longer do the job you used to do.

1. Your employer has two ways in which to satisfy the burden of demonstrating suitable alternative employment:

2. Your employer can find, or create, a position for you in the same company that would be considered suitable alternative employment.  So, if for example your employer placed you in a light-duty job at the company when you became disabled, then that alternative job could be considered suitable alternative employment for Longshore Act and Defense Base Act purposes.

3. Your employer can demonstrate that suitable alternative jobs are available in the relevant labor market.

Showing Available Jobs in the Relevant Labor Market. With regard to second way to show suitable alternative employment above, your employer must present evidence that there are a range of jobs that:

  • Exist,
  • Are reasonably available, and which
  • You, as a disabled employee, can realistically secure and perform.

Notably, your employer need not point to, or find, specific job openings to make a showing about suitable job alternatives.  Yet, it must satisfy those three elements above.

Your Response to the Employer’s Suitable Alternatives. Once the employer has provided information on suitable job alternatives, you may counter your employer’s showing by demonstrating that you diligently, but unsuccessfully, sought appropriate employment.

That is, in sum, the process by which the Department of Labor will evaluate, under the Longshore Act and Defense Base Act, whether you are entitled to compensation for total disability, or whether there are in fact suitable alternative employment options out there.

Real-World Example of How Suitable Alternative Employment Is Determined

To give a little context to the above discussion, let’s take an actual case.  In Norfolk Shipbuilding & Drydock Corp. v. Hord, a case that was heard in the Fourth Circuit Court of Appeals, Hord injured his left arm and hand while working for Norshipco.  After surgery and physical therapy, Hord returned to a light-duty position at Norshipco.

Two years later, when Hord reached maximum medical improvement, Hord’s doctor determined that his injury resulted in a 20% permanent loss of ability in his hand and arm. Norshipco paid the compensation for a 20% permanent impairment. Hord continued in his light-duty position but was laid off for a seven-week period.

Hord claimed total disability benefits for that seven-week period. Norshipco, however, claimed that he is not entitled to total disability because the existence of his light-duty position demonstrated that other similar employment options were available to Hord during the layoff.

Although Hord’s claim was initially denied, the Court of Appeals found that Hord was entitled to total disability compensation for those seven weeks.

Going through the process discussed above, Hord made a preliminary showing of total disability. Norshipco then argued that the light-duty job it provided to Hord demonstrates the existence of suitable alternative employment.

The Court of Appeals, however, found that Norshipco could not use its internal light-duty position as proof, given that the same light-duty position was unavailable when the company laid Hord off. Therefore, without further proof from Norshipco about suitable alternative employment in the labor market (which Norshipco did not provide) Hord should receive total disability compensation.

Defense Base Act Attorneys in Florida are Here to Advise You on the Suitable Alternative Employment Process

At RITE law, the top Defense Base Act attorneys in Florida, we can give you the appropriate expert advice on what you need to know about suitable alternative employment. Call us at 904-500-7483. We are the Defense Base Act attorneys in Florida for you.

Work will always be important to our lives.  Make sure your employer does not give you short shrift when it comes to helping you find suitable alternative employment. As the premier Defense Base Act attorneys in Florida, specifically West Palm Beach, we know how to help you get the compensation you deserve.