If you are a contractor who has been injured on the job while working overseas in Iraq, Afghanistan or on any military base across the world, your case is covered by the Defense Base Act which is an extension of the Longshore and Harbor Workers’ Compensation Act. At the Law Offices of Gillis, Mermell & Pacheco, P.A., we have a combination of over 43 years of experience in representing injured workers covered by the Defense Base Act and the Longshore and Harbor Workers’ Compensation Act. Let us put our years of experience and our reputation to work for you today! Contact us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Here are some very interesting facts and case summaries regarding suitable alternative jobs and the obligation to look for work in a DBA or Longshore case coming directly from the Longshore Deskbook from the Benefits Review Board. The Longshore Desk Book is a searchable website which is a public record. According to the Longshore Deskbook:
Where employer demonstrates the availability of suitable alternate employment, an injured employee may nonetheless be entitled to total disability if he demonstrates that he was unable to secure such work despite his diligent efforts. In New Orleans (Gulfwide) Stevedores, Inc. v. Turner, 661 F.2d 1031, 1043, 14 BRBS 156, 165 (5th Cir. 1981), the court stated that a showing of job availability 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.
Based on this language, the Fifth Circuit rejected the argument that claimant must show a diligent job search as part of his initial burden, stating that Turner makes clear that claimant’s burden in this regard does not arise until employer has shown suitable alternate employment. Once it has done so, the employer’s burden has been met, and the claimant can then prevail if he demonstrates that he diligently tried and was unable to secure such employment. Roger’s Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79(CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986). The Board and other courts of appeal have followed this holding. See, e.g., Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir. 1991); CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202(CRT) (1st Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988); Dove v. Southwest Marine of San Francisco, Inc., 18 BRBS 139 (1986); Turney v. Bethlehem Steel Corp., 17 BRBS 232 (1985); Royce v. Elrich Constr. Co., 17 BRBS 157 (1985).
If you have a question about suitable alternative jobs and the obligation to look for work in your DBA or Longshore case, Contact Us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Clifford R. Mermell, Esq., created the law firm of Gillis, Mermell & Pacheco, P.A. on March 1, 1996. Mr. Mermell has been the senior and managing partner of the firm since its creation. The firm was created to champion the rights of injured workers nationwide. It represents cases under the Worker’s Compensation, Wrongful Termination, Personal Injury, Admiralty and Maritime, Defense Base Act, and Longshore & Harbor Worker’s Compensation Act Laws.