Read Full Decision Here
Excerpts
Unlike the nature of disability, the extent of disability is a legal and economic
determination. Since the extent of disability is not a medical determination, a medical opinion
on the extent of disability is not determinative. The burden is initially on the claimant to
demonstrate total disability by showing that he cannot return to his regular employment due to
his work-related injury. Bumble Bee Seafoods v. Dir., OWCP, 629 F.2d 1327 (9th Cir.
1980); Trask, 17 BRBS at 59. If the claimant shows that he cannot return to his past job due to a
work-related injury, the claimant is presumed to be totally disabled unless the employer
demonstrates the existence of suitable alternate employment in the geographical area where the
claimant resides. See, e.g., Hairston, 849 F.2d at 1196; Bumble Bee, 629 F.2d at 1327. A
claimant who can return to his usual employment has suffered no loss of wage earning capacity
and is not disabled under the Act. A claimant must show a loss in wage-earning capacity in
order to demonstrate the extent of his disability. See Johnson v. Newport News Shipbuilding &
Dry Dock Co., 25 BRBS 340 (1992). If the employer succeeds in establishing suitable alternate
employment, the claimant may still prevail by showing an inability to secure employment despite
a diligent effort. Stevens, 909 F.2d at 1258.
Conclusion
Claimant had a temporary total disability from January 24, 2009, until the date suitable
alternative employment was shown, which was June 8, 2010. He had a temporary partial
disability from June 9, 2010, until October 7, 2010, the day before his third surgery. He had a
temporary total disability from October 8, 2010, the date of his third surgery, until January 5,
2011, the day Yusen again showed suitable alternative employment was available. He had a
temporary partial disability from January 6, 2011, until he returned to regular longshore work on
January 15, 2011. Claimant was working in his usual and customary work and no longer had a
disability because there was no economic loss related to his injury.
No comments:
Post a Comment