Trans-State Dredging and Hartford Accident and Indemnity Company v. Benefits Review Board, U.S. Department of Labor and David E. Tarner

Trans-State Dredging and Hartford Accident and Indemnity Company (referred to collectively as employer or Trans-State) appeal a decision of the Department of Labor Benefits Review Board (BRB or Board) which found the claimant to be permanently and totally disabled and awarded benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The BRB found that Trans-State did not meet its burden of showing the availability of work that the claimant could perform. The nature of the burden of establishing job availability was a question left open in Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers’ Compensation Programs, 592 F.2d 762 (4th Cir.1979). We now seek to clarify the showing required of both the employer and the employee. Because we find that the BRB imposed too stringent a standard on the employer and did not impose on the claimant a complementary burden of demonstrating “reasonable diligence in attempting to secure some type of alternative employment,” New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1043 (5th Cir.1981) we reverse and remand the case to allow the parties to introduce evidence on these issues.

I

On June 25, 1971 claimant David E. Tar-ner, a 33-year-old welder, was injured in a work related accident when a four, by eight sheet of plywood fell onto his head.1 He continued to work for ten days before seeking the aid of a physician. He subsequently received temporary total disability payments for a period of five weeks (July 3, 1971 to August 8, 1971) during which he was unable to work. From August 1971 until May 1976 he worked for different employers as a welder, carpenter or in some other capacity but was either laid off or unable to perform the work. In August 1973 he injured his left arm and shoulder. Trans-State agrees that this 1973 injury does not constitute an intervening cause of Tamer’s present disability. Trans-State also accepts the finding that Tarner is unable to perform work requiring heavy labor comparable to his prior employment as a welder. The employer disputes, however, the BRB’s finding that claimant is permanently and totally disabled, with such disability dating from May 10, 1976 when Tarner was last gainfully employed.

Disability under LHWCA is “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” 33 U.S.C. § 902(10) (emphasis added). Once a claimant proves he is disabled from his regular employment, the burden is on the employer to show that alternative employment is available. Newport News, supra, 592 F.2d at 765. At the hearing before the Administrative Law Judge (AU), Trans-State endeavored to meet this burden through the testimony of a vocational rehabilitation and employment specialist. The specialist testified that he studied all the available medical information and interviewed and tested Tarner. In June and July of 1979, relying on his evaluation of Tarner, the vocational expert checked the records of the local office of the Florida State Employment Service and the local newspaper listings and concluded that there existed jobs involving light and sedentary work that, in his opinion, Tarner could perform.

The hearing before the AU was held in December 1979. Originally scheduled for July 1979, it was cancelled at the request of claimant’s attorney and rescheduled for September 1979. The second hearing was cancelled by the AU and reset for December. The AU found Tarner had a ruptured intervertebral disc in his neck, but that he had refused the advice of numerous doctors to have a myelogram in an effort to confirm this diagnosis and he had refused any type of surgery to alleviate his symptoms.

II

The BRB affirmed the AU’s finding that Trans-State had failed to meet its burden of “showing available suitable alternate employment.”2 The Board relied on two grounds for this conclusion. First, the BRB noted that the vocational expert had not contacted the businesses that listed jobs. The claimant argues that the employer must prove the availability of a job by at least calling a prospective employer to see if the employer would hire someone with the same background, age and disabilities as the injured employee. No circuit court of appeals has adopted this rule and we conclude that such a standard places too heavy a burden upon the employer. The employer need not rehire a claimant or assist him in finding other employment. Nor is the employer obligated to show that an actual job offer has been made to the claimant. Instead, we approve the standard articulated by the Fifth Circuit in Turner, sufra:

We believe some common sense standard must be adopted which allows the burden of establishing job availability to remain on the employer but makes this burden one which the employer can meet by proof short of offering the claimant a specific job or proving that some employer specifically offered claimant a job. Of course the standard should incorporate the specific capabilities of the claimant, that is, his age, background, employment history and experience, and intellectual and physical capacities.

Job availability should incorporate the answer to two questions. (1) Considering claimant’s age, background, etc., what can the claimant physically and mentally do following his injury, that is, what types of jobs is he capable of performing or capable of being trained to do? (2) Within this category of jobs that the claimant is reasonably capable of performing, are there jobs reasonably available in the community for which the claimant is able to compete and which he could realistically and likely secure? This second question in effect requires a determination of whether there exists a reasonable likelihood, given the claimant’s age, education, and vocational background that he would be hired if he diligently sought the job.

661 F.2d at 1042-1043 (footnotes omitted).

Following the lead of Turner, we also hold that the employee bears the burden of demonstrating his willingness to work.33

This brings into play a complementary burden that the claimant must bear, that of establishing reasonable diligence in attempting to secure some type of alternate employment within the compass of employment opportunities shown by the employer to be reasonably attainable and available. This obligation to seek work does not alter the statutory presumption of coverage, nor the employer’s initial burden of proving job availability. It merely makes explicit that which has always been implicit — if alternate jobs exist which the claimant could reasonably perform and secure had he diligently tried, the employer, after demonstrating the existence of such jobs has met his burden. Job availability should depend on whether there is a reasonable opportunity for the claimant to compete in a manner normally pursued by a person genuinely seeking work with his determined capabilities. (Emphasis in original.)

661 F.2d at 1043.

Second, the BRB rejected the testimony of the vocational expert with respect to the availability of employment on the grounds that the information was untimely.4 This conclusion was based on the fact that the specialist last checked the listings in July 1979 whereas the hearing was held in December 1979. The Board also found it to be significant that, at the hearing, the vocational expert testified that the dates the jobs had been listed extended from October 1978 through July 1979. The two postponements of the hearing should not have affected the weight of the testimony. In addition, the fact that the jobs were still posted in July 1979 implies that the work was available at that time. If accepted by this court, the timeliness grounds relied on by the BRB could be extended to cover medical testimony and many other areas of inquiry. We decline to adopt such a rule. The holding of Turner was that “the employer is entitled to attempt to establish that at the critical times there were jobs reasonably available within Turner’s capabilities and for which Turner was in a position to compete realistically had he diligently tried.” 661 F.2d at 1043. We find that it would be unreasonably burdensome and restrictive to define “critical times” as solely the period immediately prior to the administrative hearing.

REVERSED AND REMANDED.