On February 24, 2014, the Supreme Court of the United States denied certiorari in Cox v. Director, OWCP, which was a Longshore decision from the Fifth Circuit. The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was:
Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification or granting Employer’s Motion for Summary Decision denying Cox’s Second Motion for Modification. Under the LHWCA, once the claimant has established that he is unable to return to his former employment due to a work-related injury, the burden shifts to the employe rto demonstrate that the claimant retains the capacity to earn wages in a regularo job by showing the availability of suitable alternative mployment which the claimant is capable of performing. When an employer offers of a suitable job within the partially disabled claimant’s current place of work, that is sufficient to discharge the employer’s burden of establishing suitable employment. If a claimant loses suitable employment due to his own misconduct, any loss in his wage-earning capacity thereafter is not compensable under the Act as it does not result from the work-related incident.
In this case, Employer offered Cox a suitable alternative position earning his pre-injury wages. If Cox had accepted the position, he would not have any loss of wage earning capacity and would not be entitled to disability. Since Employer offered suitable employment at Cox’s original place of work and Cox lost the job due to his misconduct (failure to report), Employer is no longer required to show other suitable alternative employment or that Cox can earn wages in the open market. Employer’s decisions not to hire Cox in August 2007 and to place him on medical leave of absence in December 2007 do not warrant modification of the ALJ’s July 2007 order, because at those times Employer had no obligation to provide suitable alternative employment.