In most Defense Base Act cases the parties have to determine whether the injured worker can return to their usual and customary employment. For contractors, that means determining whether the injured worker can return to overseas employment. If they cannot return to their pre-injury job, then the injured worker is considered totally disabled until the employer demonstrates the existence of suitable alternative employment (i.e., another job that the claimant could work).
But what if the injury suffered by the contractor–that is, the injury that required workers compensation in the first place–is best classified as a “non-deployable medical condition”? Today, I want to focus on non-deployable medical conditions and how those conditions could affect a Defense Base Act claim when the litigants are determining the injured worker’s post-injury employment outlook. Further, I want to address the situation where employers use overseas military contracting jobs on their labor market surveys to deflate an injured worker’s compensation rate.
Healthy Workers Wanted:
Employers working with the Department of Defense must provide healthy employees. Those employees must be medically, dentally, and psychologically fit to perform the contract duties “unique to the particular operation and the ability to tolerate the environmental and operational conditions of the deployed location.”
It is the employer’s duty to conduct all pre-, during-, and post-deployment medical evaluations. Prior to deployment, the Department of Defense wants employers to check a host of bodily functions. Employers should assess an employee’s “cardiovascular, pulmonary, orthopedic, neurologic, endocrinologic, dermatologic, psychological, visual, auditory, dental, and other systemic disease conditions that may preclude performing the functional requirements of the contract, especially in the austere work environmental encountered in some contingency operations.”
Pre-Existing Medical Conditions…As In Existing Prior to Deployment:
In the context of a total disability claim, one of the big issues is whether the injured worker can return to their usual employment. As such, there is going to be a question as to whether the work-related injury prevents deployment. For purposes of a new, post-injury deployment period, the work-related injury should be considered a “pre-existing medical condition.”
A pre-existing medical condition is not a deal-breaker for deployment. However, the Department of Defense has identified some requirements that must be satisfied before the employee may deploy:
- The condition must not be “of such a nature that an unexpected worsening is likely to have a medically grave outcome or a negative impact on mission execution.”
- The condition must be stable, with the pre-deployment medical evaluator determining that the condition is not reasonably anticipated to worsen during deployment. The evaluator must take into account the “contractor-provided medical care in-theater in light of the physical, physiological, psychological, environmental, and nutritional effects of the duties and location.”
- Any ongoing health care or medications must be available and accessible without resorting to the military health system. And the medications should have “no handling, storage, or other requirements” like the need for refrigeration or electrical power.
- The condition must not require any work limitations that would preclude performance of the duty or a need to impose an accommodation.
- The condition must not require routine out-of-theater diagnostics or other evaluations.
Looking at these requirements, I think it is safe to say that the Department of Defense wants employers to provide healthy employees to fulfill the government contract at issue. An employee with a pre-existing medical condition may be healthy enough to perform the job duties without a problem. However, if the pre-existing condition could worsen or require medication that can’t be provided or maintained, then the potential employee should not re-deploy.
Diagnoses That “Usually” Prevent Deployment:
There are some “hot button” diagnoses that may prevent deployment. A medical evaluator could sign a deployment diagnoses waiver; but the evaluator must consider a lot of factors like “climate; altitude; nature of available food and housing; availability of medical, behavioral health, and dental services; or other environmental and operational factors [that] may be hazardous to the deploying person’s health because of a known physical or mental condition.”
Although this list is not exhaustive, the Department of Defense specifically identified these conditions as “Conditions Usually Precluding Medical Clearance:”
- Physical or psychological conditions resulting in the inability to effectively wear IPE, including protective mask, ballistic helmet, body armor, and CBRN protective ensemble, regardless of the nature of the condition that causes the inability to wear the equipment if wearing such equipment may be reasonably anticipated or required in the deployed location.
- Conditions that prohibit immunizations or use of FHPPs required for the specific deployment. . . .
- Any chronic medical condition that requires frequent clinical visits, that fails to respond to adequate conservative treatment, or that necessitates significant limitation of physical activity. (Author’s Note: “Frequent” means “more than quarterly” clinical visits.)
- Any medical condition that requires durable medical equipment or appliances or that requires periodic evaluation and/or treatment by medical specialists not readily available in theater (e.g., CPAC machine for sleep apnea).
- Any unresolved acute or chronic illness or injury that would impair duty performance in a deployed environment during the duration of the deployment.
- Active tuberculosis or known blood-borne diseases that may be transmitted to others in a deployed environment . . . .
- An acute exacerbation of a physical or mental health condition that could affect duty performance.
- Recurrent loss of consciousness for any reason.
- Any medical condition that could result in sudden incapacitation including a history of stroke within the last 24 months, seizure disorders, and diabetes mellitus type I or II, treated with insulin or oral hypoglycemic agents.
- Hypertension not controlled with medications or that requires frequent monitoring to achieve control.
- Cancer for which the individual is receiving continuing treatment or that requires periodic specialty medical evaluations during the anticipated duration of the deployment.
- Precancerous lesions that have not been treated and/or evaluated and that require treatment and/or evaluation during the anticipated duration of the deployment.
- Any medical condition that requires surgery or for which surgery has been performed that requires rehabilitation or additional surgery to remove devices.
- Asthma that has a Forced Expiratory Volume-1 (FEV-1) of less than or equal to 50 percent of predicted FEV-1 despite appropriate therapy, that has required hospitalization at least 2 times in the last 12 months, or that requires daily systemic oral or injectable steroids.
- Any musculoskeletal condition that significantly impairs performance of duties in a deployed environment.
- HIV antibody positive with the presence of progressive clinical illness or immunological deficiency. . . .
- Hearing loss. The requirement for use of a hearing aid does not necessarily preclude deployment. However, the individual must have sufficient unaided hearing to perform duties safely.
- Loss of vision. Best corrected visual acuity must meet job requirements to safely perform duties.
- Symptomatic coronary artery disease.
- History of myocardial infarction within 1 year of deployment.
- History of coronary artery bypass graft, coronary artery angioplasty, carotid endarterectomy, other arterial stenting, or aneurysm repair within 1 year of deployment.
- Cardiac dysrhythmias, either symptomatic or requiring medical or electrophysiologic control (presence of an implanted defibrillator and/or pacemakter).
- Heart failure.
- Individuals without a dental exam within the last 12 months or who are likely to require dental treatment or reevaluation for oral conditions that are likely to result in dental emergencies within 12 months.
- Psychotic and/or bipolar disorders. . . .
- Psychiatric disorders under treatment with fewer than 3 months of demonstrated stability.
- Clinical psychiatric disorders with residual symptoms that impair duty performance.
- Mental health conditions that pose a substantial risk for deterioraton and/or recurrence of impairing symptoms in the deployed environment.
- Chronic medical conditions that require ongoing treatment with antipsychotics, lithium, or anticonvulsants.
Still, if an employee thinks that they “can accomplish his or her tasks and duties and tolerate the environmental and operational conditions of the deployed location, the [employer] may request a waiver for that individual . . . .” That is, they can ask a medical evaluator and the Combatant Command surgeon (or a designee) to clear the employee for work on the government contract even though they have one of the 30 conditions listed above. All the same, one “thumbs-down” during the medical waiver process could result in deployment denial.
Work Injuries and Total Disability:
The typical (and for this post, very generalized) chronology of a Defense Base Act case is as follows. First, the injury occurs. Then, depending on the severity of the injury, the injured worker returns to the United States for treatment. After that, the employee reaches medical permanency for their injury–which is called “maximum medical improvement” or reaching a medical plateau. Around the same time, the employer and insurance carrier aim to establish either that the employee can return to their usual and customary employment or that the employee can engage in suitable alternative employment
If the injured worker can return to their pre-injury job, then there is no need to show suitable alternative employment. But, if the employee cannot return to the pre-injury job, then the showing must be made. To show suitable alternative employment, the employer must demonstrate the existence of realistically available job opportunities within the geographical area where the employee resides which he is capable of performing, considering the employee’s age, education, work experience, physical and/or psychological work restrictions, and which the employee could secure if he diligently tried. Employers and carriers make this showing with the help of a vocational expert. The expert will interview the injured worker, have the worker take a few tests, and then issue a report that includes a labor market survey. A labor market survey is a list of jobs which employers and carriers will present to a court to demonstrate the existence of suitable alternative employment.
The contents of a labor market survey are often debated. Sometimes the labor market survey identifies overseas jobs. Employers and carriers argue that they are allowed to use overseas jobs in a labor market survey to prove suitable alternative employment. Although the employee may not be able to return to a combat zone, the employee can still work on another military contract in a less austere environment. The employers then use the higher-paying overseas jobs as a basis for reducing an injured employee’s compensation rate.
But is it realistic to conclude that an injured employee can return to work overseas under a military contract if the underlying work-related injury is identified on the non-exhaustive list of “Conditions Usually Precluding Medical Clearance”?
And when attempting to use a labor market survey job identifying overseas military employment as suitable alternative employment, should the vocational expert have to consider the Department of Defense’s medical waiver requirements for both pre-existing conditions and “Conditions Usually Precluding Medical Clearance”?
In my opinion, overseas contracting jobs should not be included on a labor market survey in the mine run of Defense Base Act claims. For a post-injury labor market survey, overseas contracting jobs may gloss over important variables. Some of those variables include the medical waiver requirements for pre-existing medical conditions and “Conditions Usually Precluding Medical Clearance.” Moreover, there is always the geographical proximity problem because overseas jobs are by definition outside a U.S.-based worker’s local community. And then there is the employee’s medication which, in and of itself, could prevent overseas employment on a military contract.
A Special Note for Psychological Claims:
Before wrapping up, I want to draw attention to the importance of psychological conditions. The DoD covered nearly every base possible when addressing pre-existing psych claims, saying that a deployment waiver is required if:
- The psychological condition prohibits the ability to effectively wear personal protective equipment;
- The employee has an acute exacerbation of a mental health condition that could affect duty performance;
- The employee has a psychotic disorder and/or bipolar disorder;
- The employee has not had at least 3 months of demonstrated stability with their psychiatric disorder. Medication management could likely qualify as a treatment variable affecting stability;
- The clinical psychiatric disorders or their residual symptoms impair duty performance;
- The mental health condition poses a substantial risk for deterioration and/or recurrence of impairing symptoms in the deployed environment; and
- A chronic medical condition requires treatment with antipsychotics, lithium, or anticonvulsants.
A lot of the psychiatric claims I see involve Post Traumatic Stress Disorder (PTSD) caused by an exposure to war-risk hazards (e.g., IEDs, mortars, rockets, small arms fire). Considering the myriad ways that the DoD identified psychological conditions as “Conditions Usually Precluding Medical Clearance,” it seems highly unlikely that a PTSD sufferer would be released to return to work in a deployed environment that could cause a resurgence of symptoms. Overseas employment is highly contraindicated for a contractor who suffered a work-related psychological injury.
On a final note, I want to provide a link to Department of Defense Instruction Number 3020.41, dated December 20, 2011. I pulled a lot of information in this post from this DoD Memo. Of course, this post doesn’t cover all potential issues with respect to post-injury employment following a serious medical condition. In fact, a reader may be able to find a post that is more specific to their particular situation. Nonetheless, I found the DoD’s Memo interesting and wanted to share it on the Longshore & DBA Review.
If you are in need of representation in your Defense Base Act claim, contact Jon Robinson at [email protected] or toll-free at (844) DBA-COMP for a free claim evaluation.