SUITABLE ALTERNATIVE EMPLOYMENT

Returning to work after a non-scheduled Longshore injury is most often governed by “suitable alternative employment.”  Note that for ’scheduled injuries’, there is no obligation for the employer to find SAE once the employee is released from medical care.  On the contrary, the employer must pay only the scheduled payment at that time.  This section below generally applies to non-scheduled injuries.

Under the LHWCA the term “suitable alternative employment” is used to describe a possible job that can be performed by the injured employee once the injured employee is released to return to some form of work following his injury.  The often-cited case of New Orleans Stevedores v. Turner, 661 F.2d 1031 (5th Cir. 1981) discusses at great length the obligation of the employer to “Turnerize” an injured employee.  This requires that the employer prove “the availability of actual, not theoretical, employment opportunities by identifying specific jobs available to the employee within the local community.”  Often the “local community” has been defined as within approximately 25 miles of the injured employee’s home town.

If you have been injured under the LHWCA, it is very important that your employer identify actual, specific job opportunities if your employer suspends or decreases your compensation benefits (unless you have refused medical treatment which may also justify termination of benefits).  Very often the employer will identify jobs that it has available and it maintains, and the employer will argue that these jobs are possible job opportunities for an injured employee.  For example, often an LHWCA employer will invite/require the injured employee to return to work at its facility performing office work or working in one of their land-based shops following the employee’s injury.  The Department of Labor generally holds that such offered employment does satisfy the Turner obligations of the employer provided the offered-job position actually exists and the employee is not being paid to simply sit in the office at a position that did not exist prior to the employee’s injury.  The overall goal of the Department of Labor in reviewing such a job opportunity will be to determine if it is unacceptable “sheltered employment” or if it is an actual position that the employee could go and apply for with other employers.  Generally this will determine if the LHWCA employer can rightfully take credit for such job under the Longshore Act.

If credit can be taken for the job, then your benefits may be reduced by the amount that you could earn from the job.  Whether your benefits will actually be reduced depends on your AWW prior to your injury.  If your annual income was very high (in excess of $60,000), then even though your employer may be given ‘credit’ for locating an available job for you, the credit may not be enough to reduce your benefits.