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What is Suitable Alternative Employment under the Defense Base Act?

 

DBA Lawyer - Bill Turley on Suitable Alternative Employment

“No B.S. straight forward answers with no legal mumbo-jumbo, lawyer talk.”

Defense Base Act Lawyer and author of the 5 Star book Win Your Defense Base Act Case  -  Bill Turley

 

DBA, suitable alternative employment, football and beating the insurance company's defense

The DBA Insurance company will try to show "suitable alternative employment" in order to pay you less permanent disability money. 
 
One way to think of this concept is to compare it to football.  Suitable alternate employment is part of the DBA insurance company's defense to try and keep you from scoring (read: getting money). Suitable alternative employment is more like the DBA insurance company's defensive secondary. 
 
It's not the DBA insurance company's first line of defense. The DBA insurance company's first line of defense is always to attack your credibility and character. The DBA insurance company is going to lay tricks and traps for you that they will use to attack your credibility.  Avoiding these DBA insurance company tricks and traps is covered in my 5 Star book - Win Your Defense Base Act Case
 
Because in a DBA case, if the Judge doesn't believe you, you will lose. 
 
Just like in football, you can win every other aspect of the game (read: your DBA case) and if you lose on suitable alternative employment you just got kept out of the end zone. Meaning, you get no money. Not good. 
 
Breaking this down even further, can you see how we are talking about your money?  
 
In this article, I explain these concepts so that you can see how it impacts your DBA case. 
 

I answer the following questions and address the following issues and more: 

What is Suitable Alternative Employment under the Defense Base Act? 
 
Suitable alternative employment - Labor Market Survey
 
Case law for suitable alternate employment
 
Labor Market Survey - used to establish suitable alternate employment 
 
The DBA insurance company will use a Labor Market Survey to point to specific jobs that you can perform
 
You need to try and apply and get the jobs listed in the Labor Market Survey

You need to try and apply and get the jobs listed in the Labor Market Survey

Defense Base Act Suitable Alternative Employment

Under the Defense Base Act with an unscheduled injury, once you have shown that your work-related injury prevents you from performing your former job, the burden shifts to the employer (read: Defense Base Act insurance company) to show that there is "suitable alternate work . . . available in the community." Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1196 (9th Cir. 1988).  This is also called suitable alternative employment or suitable alternate employment.
 
If the DBA insurance company fails to meet this burden, your disability is considered total and, most likely, permanent. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1196 (9th Cir. 1988); Stevens v. Director, Office of Workers' Compensation Programs, 909 F.2d 1256, 1258 (9th Cir. 1990).
 
Disability under the DBA for unscheduled injuries is a wage loss concept. 
 
The DBA insurance company is trying to show that you can make as much money in this alleged "suitable alternative employment" as you could as an overseas civilian contractor. Or, if that fails, they will try and show that you can make as much money as possible in order to minimize your wage loss. 
 

Why you shouldn’t do anything until you read my book - Win Your Defense Base Act Case

I strongly suggest that you don’t do anything regarding your DBA case until you read my book. In fact, many of the reviews on amazon.com will tell you the same thing. There is a reason for that. It’s because you need to know about the ways the DBA insurance company is going to try and trick your and trap you before you make one of these case ending mistakes.

WIn Your Defense Base Act Case - the 5 Star book

Don't go to a Labor Market Survey appointment until you read my book - - this is IMPORTANT!!

Don’t talk to the adjuster, sign any forms (never sign any releases), give a recorded statement, go to your next medical appointment, go the defense medical examination (also called an IME), attend an informal conference, go to a Labor Market Survey appointment, give a deposition, hire the wrong Defense Base Act attorney,  or do anything else related to your Defense Base Act Case until you read my book - Win Your Defense Base Act Case.

 

Check out all the 5 Star Reviews on amazon.com.

You can order your free copy on this website. I strongly suggest you read my book before you sign any forms, give a recorded or written statement, talk to the adjuster or even hire the WRONG lawyer

 

What is Suitable Alternative Employment under the Defense Base Act? 

The DBA insurance company is going to try and show "suitable alternative employment" in order lessen the permanent disability monies that you are owed. 
 
Remember, that for unscheduled injuries under the DBA, your permanent disability is a wage loss concept. The DBA insurance company is trying to show that you have as little loss of wage earning capacity as possible. The DBA insurance company will do this by trying to demonstrate that there is suitable alternative employment that you can perform. 
 
What is meant by “suitable” depends on each person’s capabilities and geographic area where you reside. The court must consider your age, education, work experience, and physical restrictions.
 
For example, the employment opportunities are far different in a major city such as New York, Los Angeles or even Jacksonville than they might be in rural Alabama or Wyoming.
 
And the law looks at realistic job opportunities which you can secure if you diligently tried to get a job.
 
"Alternate" means that is is something different than your usual and customary employment as an overseas civilian contractor. 


Suitable alternative employment - Labor Market Survey

The DBA insurance company is going to try and prove suitable alternative employment with a Labor Market Survey.
 
Here is a great article on Labor Market Surveys under the DBA.

 

Case law for suitable alternate employment    

A disability is classified as "total" under the DBA when:
 
"(1) a claimant demonstrates that the work-related injury in question renders him [or her] unable to return to prior employment, and
(2) the employer subsequently fails to establish the availability of suitable alternative employment within the geographic area of the claimant's residence, which the claimant can perform considering the claimant's limitations, age, education, and background, and with a diligent employment search on the claimant's part." Gen. Constr. Co. v. Castro, 401 F.3d 963, 968-69 (9th Cir. 2005).


Labor Market Survey - used to establish suitable alternate employment

The DBA insurance company will usually have a Labor Market Survey done in order to try and establish the existence of suitable jobs in order to meet their burden of proving suitable alternative employment.
 
In essence, the Labor Market Survey (LMS) is a list of alleged specific jobs which are allegedly available to you in the area where you live.  For the job opportunities to be realistic, the DBA insurance company must establish their precise nature, terms, and availability.  The LMS must list jobs that you can perform physically. In addition, you have to be qualified to perform the jobs listed in the LMS.
 
As I explain in this article on Defense Base Act Labor Market Surveys, you want to apply for all of the jobs listed on the Labor Market Survey.
 
If you apply for the jobs on the Labor Market Survey and you don’t get the jobs, then the wages of any such jobs cannot, as a matter of law, establish your post-injury wage-earning capacity.  See Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9th Cir. 1993), cert. denied, 511 U.S. 1031 (1994).
 
What you are trying to show is one or more of the following:
 
1. That the job doesn't exist at all. 
2. If the job is available, that you applied for the job and that you didn't get the job. 
3. That the job is not suitable for you because of your age, work experience, lack of education and/or it is a very competitive job market. 


The DBA insurance company will use a Labor Market Survey to point to specific jobs that you can perform

If you prove that a work-related injury prevents you from returning to your former job, the burden shifts to the employer (read: DBA insurance company) to point to specific jobs that you can perform. Bumble Bee Seafoods v. Dir., Office of Workers' Comp. Programs, 629 F.2d 1327, 1329-30 (9th Cir. 1980). Once the employer has pointed to one or more possible positions, the ALJ makes a factual finding as to whether you are able to perform those jobs. Bumble Bee Seafoods v. Dir., Office of Workers' Comp. Programs, 629 F.2d 1327, 1330 (9th Cir. 1980); Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 652 (2010).
 

You need to try and apply and get the jobs listed in the Labor Market Survey

The Fifth Circuit has held that once the employer (read: insurance company) has the burden of showing suitable alternate employment, you can then prevail if you demonstrates that you diligently tried and were 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).
 
This is the basis for my recommending that you be diligent and go out and actually apply for and try to obtain every job in the Labor Market Survey that is in the area where you live.
 
In Bumble Bee, the Ninth Circuit stated that employer (the cases all refer to the employer - but under the DBA, we are talking about the DBA insurance company) cannot meet its burden by simply showing that you can perform general sedentary work; employer must point to specific jobs that you can perform. Bumble Bee Seafoods v. Directors, Office of Workers' Compensation Programs 629 F.2d 1327, 1330 (9th Cir. 1980).
 

What if the DBA insurance company doesn’t get a Labor Market Survey?

However, where the record is devoid of evidence of suitable alternate employment, claimant is totally disabled. The mere allegation that such work is available will not meet employer’s burden. See 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); American Mutual Ins. Co. of Boston v. Jones, 426 F.2d 1263 (D.C. Cir. 1970); Burke v. San Leandro Boat Works, 14 BRBS 198 (1981); Bostrom v. I.T.O. Corp. of New England, 11 BRBS 63 (1979); Perry v. Stan Flowers Co., 8 BRBS 533 (1978). An employer cannot meet its burden simply by illustrating that the claimant can perform particular physical tasks. Pietrunti, 119 F.3d 1035, 31 BRBS 84(CRT). See Odom Constr. Co., Inc. v. U. S. Dept. of Labor, 622 F.2d 110, 12 BRBS 396 (5th Cir. 1980), cert. denied, 450 U.S. 966 (1981.         

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If you have PTSD or suspect you may have PTSD be sure to read this article on PTSD and the Defense Base Act. 
 
And you need to check out this article - on the Top 10 DBA Questions.
        

 
This article isn't legal advice
 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why DBA cases are not won and/or are not as successful as folks might have hoped for.
 
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different.
William Turley
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