Do I have to look for a new job after an injury?

The Parties

Ms. Montoya worked as a clerk for the Navy Exchange Service Command.

The Navy Exchange Service Command (NEXCOM) owns the Navy Exchange, which offers goods and services for sale to active members of the military, retirees, and some civilians on naval bases, both in the United States and overseas.

The Facts

On September 22, 2006, Ms. Montoya injured her back while in the course of her employment as a sales clerk for Navy Exchange Service Command.  Ms. Montoya intermittently missed several days of work due to her injury. In addition, she stopped working on November 5, 2006.  Ms. Montoya then filed a claim under the Nonappropriated Fund Instrumentalities Act on November 28, 2006.

The Nonappropriated Fund Instrumentalities Act (NFIA) serves to define the status of civilian employees working under the Nonappropriated Fund at various U.S. military bases. These Nonappropriated Funds are funds not appropriated by the Congressional or Defense Budgets. The NAFIA includes various military branch exchanges and other activities that provide entertainment, recreation and housing to military employees on military bases in the U.S. and overseas. NAF civilian employees are not classified as Federal Government employees. As a result, they cannot be covered under the Federal Employees compensation Act. Their jobs are tailored more towards the private sector, but their industrial work-related claims do not fall under the state workers’ compensation system. NAF employees are compensated from revenue earned by business operations. All funds are maintained in a Federal Reserve Bank as required by federal statute.

Employment Conditions

The injuries

Ms. Montoya sustained an unspecified back injury. There is no information on any surgeries.

The employer’s actions

Navy Exchange Service Command offered Ms. Montoya supposedly suitable alternative  employment as a parking lot attendant.  The offer of alternative employment would have reduced Ms. Montoya’s full disability to partial, with commensurately lower payments.

Results of the Initial Hearing

In his decision, the administrative law judge found that Ms. Montoya sustained a work-related back injury and had provided the Navy Exchange Service Command with timely notice of this work injury as is required under the Nonappropriated Fund Instrumentalities Act.  The administrative law judge also found that Ms. Montoya was unable to return to her usual employment. This was due to her work injury. The administrative law judge also determined that the Navy Exchange Service Command established the availability of suitable alternate employment as a parking lot attendant.  The administrative law judge awarded Ms. Montoya compensation for temporary total disability from November 5, 2006 to April 22, 2009, permanent total disability from April 23, 2009 to August 9, 2012, and then ongoing permanent partial disability from August 10, 2012.  The Navy Exchange Service Command was granted Section 8(f) (second injury) relief.   On reconsideration, the administrative law judge then agreed with the Navy Exchange Service Command that he had miscalculated Ms. Montoya’s loss of wage-earning capacity under Section 8(c)(21). He then adjusted his figures to a weekly loss of $88.22.  The administrative law judge rejected the Navy Exchange Service Command’s contentions that he erred by using the minimum compensation rate of Section 6(b)(2), in effect in the fiscal year 2007, rather than 2006, to determine Ms. Montoya’s compensation rate for temporary total disability.  The administrative law judge also rejected the Navy Exchange Service Command’s contention that it had established the availability of suitable alternate employment on January 14, 2012, instead of on August 10, 2012.

The Appeal

Ms. Montoya challenged the administrative law judge’s findings that the Navy Exchange Service Command established the availability of suitable alternate employment and that she did not exercise diligence in seeking suitable work. The Navy Exchange Service Command responded, and urged the rejection of Ms. Montoya’s contentions.  Ms. Montoya filed a reply brief.  The Navy Exchange Service Command cross-appealed the administrative law judge’s rejection of its contentions that it established the availability of suitable alternate employment on January 14, 2012, and the administrative law judge’s use of the minimum compensation rate for the fiscal year 2007, rather than that of 2006.  Ms. Montoya responded and urged the rejection of the Navy Exchange Service Command’s contentions.

The Ruling on Appeal

The administrative appeals judges determined that Ms. Montoya contended the administrative law judge erred in finding that she did not establish diligence in seeking alternate employment.  She contends she showed diligence when she inquired about working at a mall kiosk.  If an employer establishes the availability of suitable alternate employment, a claimant can rebut the showing and retain entitlement to total disability benefits by demonstrating that, despite a diligent effort, she was unable to secure a position. In his decision, the administrative law judge quoted Ms. Montoya’s deposition testimony that she did not look for work as she did not believe she was physically capable of working.  The administrative law judge noted Ms. Montoya’s inquiry for part-time work at a mall kiosk and the attendant’s response that she may not be physically capable of the work.  The administrative law judge concluded from this evidence that Ms. Montoya was not diligent because she did not attempt to seek work of the type he found suitable nor did she attempt to obtain any other employment.

The administrative appeals judges rejected Ms. Montoya’s contention that the administrative law judge erred in finding this single employment inquiry established her diligence, and they affirmed the administrative law judge’s rational conclusion that Ms. Montoya did not establish diligence in seeking suitable work. Therefore, they affirmed that Ms. Montoya’s disability became partial upon her employer’s showing of suitable alternate employment.

Navy Exchange, however, challenged the administrative law judge’s finding that it established the availability of suitable alternate employment on August 10, 2012, rather than on January 14, 2012.  The administrative law judge stated that Navy Exchange’s motion in this respect “is simply a re-hash of its argument, which I fully addressed in my Decision and Order.”  Partial disability does not begin until an employer establishes the availability of suitable alternate employment.  An employer can meet its burden of showing the availability of suitable alternate employment through credible, retrospective evidence of jobs available at an earlier date. However, the administrative law judge’s first decision did not address this evidence.  As a result, because the administrative law judge must in the first instance address the contention that Navy Exchange established suitable alternate employment before August 10, 2012, the administrative appeals judges remanded (returned for further consideration) the case for him to do so.

Navy Exchange also appealed the administrative law judge’s finding that Ms. Montoya’s compensation for temporary total disability should have been based on the minimum compensation rate in effect for fiscal year 2007, instead of 2006.  Navy Exchange contended that the 2006 rate should apply because Ms. Montoya was injured on September 22, 2006, and she missed eight days of work in September 2006 due to her work injury.

The administrative law judge found that Ms. Montoya was entitled to the statutory minimum compensation rate for temporary total disability and permanent total disability.  And the administrative law judge found that because Ms. Montoya first became disabled in November 2006, i.e., in the fiscal year 2007, the 2007 rate applies in this case.

The Takeaway

Two things make this case interesting. (1) Ms. Montoya was required to do more than make one job inquiry in order to show due diligence in looking for alternate employment, and (2) the date of her disability mattered more than the actual date of her injury, when it came to computing her benefits.

Ms. Dolores Montoya v. Navy Exchange Service Command
https://www.dol.gov/brb/decisions/lngshore/published/14-0379.htm