Balles v Babcock Power Inc. 70 N.E.3d 905 Mass. Judgment Law

As part of his general power to direct and authorize discovery, a judge may compel such an evaluation. If the only suggested job would require six months of unpaid training, it is arguably unavailable. Similarly, a physician’s testimony on vocational disability may be discredited as beyond his expertise. The testimony of a paramedic with no vocational expertise is also insufficient.

If the vocational expert states that no jobs exist which the claimant could reasonably obtain, he is permanently totally disabled. If the claimant relocates for personal reasons, the employer meets its burden if it shows that jobs are available within the geographical area in which the claimant resided at the time of the injury. When a claimant is temporarily laid off for economic reasons, an employer must make the same showing of suitable alternate employment during the layoff period as in response to an initial claim. The employer does not meet its burden of demonstrating the availability of suitable alternate employment by introducing classified ads, as there is no evidence of the precise nature, terms, and availability of the positions listed.

A person who has regular and continuous post-injury employment “must take chances on unemployment like anyone else.” Devillier v. National Steel & Shipbuilding Co. An employer is not a long-term guarantor of employment. The counselors must identify specific available jobs; labor market surveys are not enough. Accordingly, the employer need not rehire the claimant. Moreover, a job specifically tailored to the employee’s restrictions is not sheltered so long as it involves necessary work. On the other hand, a judge may find an employee able to do his usual work despite his complaints of pain, numbness, and weakness, when a physician finds no functional impairment.

Alternatively, the question of the parties intent with regard to future alimony may remain a disputed question of material fact after the judge considers parol evidence, in which case there would have to be a trial on that question. From our discussion of the first two factors, it is clear that Wright’s vacation, holiday, and container royalty payments were made “under the contract of hiring in force at the time of the injury,” 33 U.S.C. § 902, and thus satisfy the third requirement of § 2. Normally this would end our inquiry, but Universal Maritime argues that these payments were “fringe benefits.” We disagree. II. Advocacy for the female subordinate . Babcock similarly maintains, again without merit, that in view of the female subordinate’s inadequate qualifications and poor job performance, it was fraudulent conduct on Balles’s part to advocate—as her supervisor and without disclosing their personal ties—on her behalf professionally.

For an example of adequate testimony, the Board upheld a finding that suitable alternate employment was available to the claimant based on the opinions of two longshoremen who considered the claimant’s age, physical condition, and seniority, and whose opinions were backed up by that of a vocational expert. Once a claimant presents a prima facie showing of disability, it is the employer’s burden to show that there was suitable alternate employment. An employer cannot simply show that a claimant was terminated for cause. The court held that, when the employee’s impairment only affects a specialized skill necessary for his pre-injury job, the severity of the employer’s burden had to be lowered to meet the reality of the situation.

See Tupper v. Hancock , 319 Mass. 105, 109, 64 N.E.2d 441 (“It is a canon of construction that every word and phrase of an instrument is if possible to be given meaning, and none is to be rejected as surplusage if any other course is rationally possible” ). The petitioner asserts that the appellate court erred in dismissing its petition for certiorari merely how to exclude words in amazon search because it appended to the said petition certified xerox copies of the assailed Resolution of the NLRC and not certified true copies thereof. The petitioner contends that there is no distinction between a xerox copy and a “true copy” of the assailed resolution, so long as the same are certified by an executive officer of the NLRC or his deputy.

In the Ninth Circuit , the employer must demonstrate that the claimant “would be hired if he diligently sought the job.” Hairston v. Todd Pacific Shipyards Corp. The First Circuit stated that it will not put the burden of proving that actual available jobs exist on the employer when it is “obvious” that there are available jobs that someone of the claimant’s age, education, and experience could do. The claimant does not have the burden of showing that no conceivable suitable alternate employment is available; rather, the employer must prove that suitable alternate employment exists.

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