Vocational Experts Help Lawyers Bring and Defend LHWCA Claims

Many employees are covered by federal workers’ compensation laws rather than state laws. Individuals who are employed on “navigable waters” are often covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). Employees who load and unload cargo in harbors and who build or repair vessels are among the employees covered by the LHWCA.

A companion law to the LHWCA, the Outer Continental Shelf Lands Act (OCSLA), primarily covers employees who are injured in an offshore job that involves the extraction of oil and gas from the seabed, including work on offshore drilling rigs. Another offshoot of the LHWCA, the Base Defense Act, covers civilian employees who work on American military bases outside of the United States, as well as employees of certain contractors who provide services overseas to the military and certain other United States agencies and organizations.

Claims for work injuries that are covered by any of those federal laws are heard by the Office of Workers’ Compensation Programs (OWCP), an office within the Department of Labor. The same rules and benefits generally apply to claims made under each of the federal laws.

Disability Benefits Under the LHWCA

Under the LHWCA, a worker is classified as disabled if a work injury prevents the worker from returning to the employment of any nature that pays the same wages the employee earned before the injury occurred. If a disabled employee cannot perform any work, the employee is entitled to a benefit that equals two-thirds of the employee’s prior wages (subject to minimum and maximum benefits). 

If a disabled employee can perform work for a lesser wage than the employee previously earned, the employee is entitled to a benefit that equals two-thirds of the difference between the employee’s former wage and the amount the employee is capable of earning.

Disability benefits usually continue until the employee is able to return to work at the employee’s former wage or until the employee dies. Federal workers’ compensation disability benefits are considerably more generous than the disability benefits mandated by most state workers’ compensation laws.

The lifetime benefit is unavailable under certain circumstances. If (1) an employee has a permanent partial disability before being hired for a job, (2) the employer knows about that disability before hiring the employee, and (3) the employee would not be permanently disabled as a result of the work injury if the pre-existing disability did not exist, the employer’s liability ends after paying benefits for 104 weeks.

Vocational Expert Testimony Under the LHWCA

A number of potentially disputed issues lend themselves to vocational expert testimony in LHWCA and related federal workers’ compensation cases. Employers and employees may each retain vocational experts to offer opinions about:

1. The employee’s future employability.
2. The kinds of work that the employee is able to perform in light of medical findings and a vocational assessment.
3. The availability of jobs in the labor market that the employee would be able to perform.
4. The wages that the employee would be able to earn if the employee is capable of working.

When an employee has a pre-existing disability, vocational experts may also be asked to offer opinions about the impact the pre-existing disability would have on employability. 

Case Study of Vocational Evidence in an LHWCA Proceeding

A man named Phil worked as a painter. He was sitting in a boatswain’s chair, suspended about thirty feet above the ground. When one of the support ropes snapped, Phil fell to the ground and suffered an injury to his spine. The injury caused a permanent loss of his ability to use his legs. He also lost all bowel and bladder control. He needed a wheelchair or crutches to move from one place to another.

Phil applied for workers’ compensation under the LHWCA. The medical evidence was largely undisputed. Both Phil and his employer presented evidence from vocational experts. There was little dispute that Phil was an alcoholic. The vocational experts took his alcoholism into account when they formed opinions as to Phil’s future employability.

After conducting an extensive vocational evaluation , vocational experts who testified for Phil opined that Phil could be retrained to do work other than painting. Based on the physical limitations associated with his disability, however, they determined that Phil would not be able to maintain full-time employment.

The employer’s vocational experts offered opinions about jobs that Phil might be able to perform. They testified that employers might be willing to hire Phil if they did not know about his history of alcoholism.

The employer contended that Phil’s alcoholism was a pre-existing disability. The employer argued that Phil would have been employable, notwithstanding his work injury, if he did not have a history of alcoholism. The employer, therefore, argued that it should not be required to pay disability benefits for more than 104 weeks.

Judge’s Reliance on Vocational Testimony

The administrative law judge (ALJ) accepted the vocational testimony of Phil’s experts that he was too severely disabled to perform full time employment. Even full-time sheltered employment was beyond his capacity. While a particularly motivated individual with a similar disability might have been able to complete a retraining program, Phil was not so motivated.

The ALJ rejected competing for testimony from the employer’s expert that jobs existed in the economy that Phil could manage. Since the employer’s expert had no experience evaluating and placing individuals in jobs who were as severely disabled as Phil, the ALJ accepted the testimony of the vocational experts who had more relevant experience.

On appeal, the employer argued that the ALJ based his decision on a personal opinion that people like Phil, who cannot walk or control their bowels, are necessarily unemployable. The court conclude that the ALJ’s decision to award benefits was fully supported by the testimony of Phil’s vocational experts.

No evidence supported the employer’s view that alcoholism rendered Phil incapable of working. Phil’s vocational experts conducted an extensive evaluation and concluded that Phil’s lack of physical stamina and poor physical tolerance of work made him incapable of full-time employment. Their report did not even hint that alcoholism played a role in their employability assessment. 

Nor did the evidence suggest that Phil’s lack of motivation to complete an arduous job retraining program was caused by a drinking problem. Phil’s history, apart from his drinking, did not persuade the vocational experts that Phil had the intellectual function or the drive to learn the skills required for new employment.

Both sides in Phil’s case relied heavily on vocational experts. In the end, the decision benefitted Phil because the ALJ placed greater reliance on Phil’s experts than the employer’s.