In McQuigg v. U.S. Marine Corps, BRB No. 23-0408 (2023), the Court addresses to what extent an employer must demonstrate the availability of suitable alternative employment (“SAE”) in order to meet its burden. The case specifically addresses a multi-circuit split establishing employer’s burden, highlighting the lengths to which an employer must present SAE. Although varying degrees of responsibility are placed upon an employer dependent upon which court it defends itself in, a comprehensive understanding of these different approaches suggests an employer achieve the highest level of burden in order to avoid unfavorable decisions or unnecessary appeals.

Distinguishing Between Varying Types of Disabilities

Under the Longshore Harbor and Workers’ Compensation Act, a claimant is entitled to compensation benefits upon the finding of a compensable work-related injury. Such benefits include temporary partial disability (“TPD”), temporary total disability (“TTD”), permanent partial disability (“PPD”), and permanent total disability (“PTD”). Temporary disabilities are those injuries which momentarily affect an injured worker’s ability to work, whereas permanent disabilities result from injuries a claimant will always have that will always hinder their ability to work. Whether a disabling injury is total or partial depends upon whether an employee is totally unable to work or perform other tasks or whether an employee is only unable to work or perform other tasks during the recovery period for the claimed injury.

Procedural Background

In McQuigg, Ms. McQuigg, Claimant, suffered a compensable lower back injury during the course and scope of her employment with the U.S. Marine Corps Community Services providing education and training for new parents and performing developmental assessments of children. On July 18, 2023, Judge Steven B. Berlin issued his Decision and Order, in which he determined Claimant suffered a work-related injury. The Court found Claimant had been unable to return to her usual employment prior to her back surgery and remained unable to do so post-surgical operation.

The Court then awarded TTD benefits for a specific period of time considering Employer’s failure to establish the availability of SAE for that period. It was further determined Claimant reached maximum medical improvement on a specific date, at which point Claimant’s benefits were converted from TTD to PTD benefits given Employer’s continued failure to identify SAE. Upon Employer’s identification of SAE, the Court converted Claimant’s PTD benefits into PPD benefits, recognizing the permanence of her disability but acknowledging the availability of SAE revealing a retained earning capacity.

Upon the Court’s issuance of its Decision and Order, Claimant appealed the decision. Claimant argued the Administrative Law Judge (“ALJ”) erred in finding Employer established the availability of SAE because Employer only identified one job and not a range of jobs. The Benefits Review Board (“BRB”), which is within the U.S. Court of Appeals for the Ninth Circuit’s jurisdiction, affirmed the ALJ’s finding that Employer satisfied its burden of identifying available SAE because two suitable jobs were found. As discussed further below, this conclusion was determined by the holding standard of the Ninth Circuit.

Defining Suitable Alternative Deployment

Within the Ninth Circuit, the employer bears the burden to demonstrate the availability of SAE after a claimant establishes their inability to return to their usual work.¹ Upon an employer’s successful demonstration, a claimant’s disability is no longer presumed to be total and instead considered partial.

However, the Ninth Circuit considers alternate employment to be suitable if the available job is (1) within the geographic area where the employee resides, and (2) is work the employee can perform considering the employee’s limitations, age, education, background, and restrictions.² An employer must identify specific jobs available to the claimant for which they can perform, as identifying only general work the claimant may be physically capable of performing is insufficient.³ It has been found that a vocational rehabilitation specialist’s credible testimony is sufficient to meet the employer’s burden.⁴

Identifying SAE in Different Jurisdictions

Although the BRB in McQuigg is held to the holdings of the Ninth Circuit, there were significant discussions regarding the standards applicable in other circuit courts.

In the Fourt Circuit Court of Appeals, an employer must show a range of jobs, as showing only one job is insufficient in establishing available SAE.⁵ However, the Fifth Circuit Court of Appeals has held an employer may meet its burden by identifying only one job, so long as the employer also demonstrates the claimant has a reasonable likelihood of obtaining that job under appropriate circumstances.⁶

The Ninth Circuit’s standard can be reiterated as requiring an employer to identify one or more positions the claimant is able to perform.⁷ However, the employer must demonstrate whether the specific job opportunities are realistic and regularly available in the claimant’s community.⁸

Although the Ninth Circuit has not specifically ruled on the issue of whether one identified suitable and alternative job is sufficient for employers to meet this burden, as the Fourth and Fifth Circuits have, this was not an issue in McQuigg, as Employer identified two different suitable alternate jobs. The Ninth Circuit has no legal precedent requiring employers to identify a range of jobs in a range of categories. Therefore, Employer in McQuigg satisfied its burden by identifying two separate employment opportunities in two separate categories of employment in Claimant’s geographic area for which Claimant was qualified and reasonably likely to obtain upon diligent application for said job opportunity.

Impact On Employers and Their Burden of Proof

Considering the various approaches different courts may have in determining whether an employer satisfies its burden in identifying available suitable alternative employment, a wholistic accounting of these different standards best positions an employer to successfully convert total disability benefits into partial disability benefits. Although not every circuit requires showing a range of jobs for employers to meet their burden, striving to achieve this goal only serves to increase an employer’s likelihood of succeeding before an ALJ or the BRB. It is necessary to obtain the testimony and report of a qualified and credible vocational expert whose labor market survey considers the totality of a claimant and the claimant’s qualifications, skills, experience, and restrictions.

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1. Gen. Constr. Co. v. Castro, 401 F.3d 963, 968-969 (9th Cir. 2005), cert. denied, 546 U.S. 1130 (2006).
2. Edwards v. Director, OWCP, 999 F.2d 1374, 1375 (9th Cir. 1993), cert. denied, 511 U.S. 1031 (1994); see generally Wilson v. Crowley Maritime, 30 BRBS 199 (1996).
3. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1996 (9th Cir. 1988); Bumble Bee Seafoods v. Dir., OWCP, 629 F.2d 1327, 1330 (9th Cir. 1980).
4. Minick v. Levin Metals Corp., 14 BRBS 893, 896 (1982).
5. Lentz v. The Cottman Co., 852 F.2d 129 (4th Cir. 1988).
6. P&M Crane Co. v. Hayes, 930 F.2d 424, 431-432, reh’g denied, 935 F.2d 1293 (5th Cir. 1991).
7. Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 652 (9th Cir. 2010).
8. Edwards, 999 F.2d at 1375; Hairston, 849 F.2d at 1194; Bumble Bee Seafoods, 629 F.2d at 1327.