I am attaching the newest edition of a quarterly LHWCA caselaw review. Highlights include:
In Jefferson v. Marine Terminals Corporation (East), claimant’s doctor referred claimant to Progressive PT but the employer told her to go to ATI where she had previously had therapy for her ankle. Claimant refused to attend, and employer sought suspension of compensation. The ALJ held claimant’s refusal was objectively unreasonable but subjectively justified and did not suspend compensation. The Board held claimant had no right to select a physical therapist or physical therapy facility because a physical therapist is not a physician. It agreed unreasonable refusal justifying suspension was an objective and a subjective inquiry. If the employer shows the refusal was unreasonable the burden shifts to the claimant to show circumstances justified the refusal. It remanded because the ALJ did not adequately explain by the refusal was justified.
In an unpublished decision, Stricklin v. Department of the Army, a vocational consultant opined jobs were “routinely available back in time” but did not say how long the jobs had been open. The ALJ concluded the testimony was too vague to support the assumption the jobs were regularly open before the date of the labor market survey. The Board affirmed.
In Weinert v. XE Services LLC (unpublished) the Board held a claimant could receive total disability when working if the claimant was working only with extraordinary effort and in spite of excruciating pain. It remanded because the ALJ did not adequately address whether claimant worked only with extraordinary effort.