To limit the value of a Defense Base Act claim, insurance carriers sometimes suggest that the injured worker can return to work anywhere in the world. By measuring their exposure against the existence of high-paying contract work, carriers argue that the particular DBA claim is only worth a fraction of its actual value.
But shouldn’t insurance carriers have to consider the existence of non-deployable medical conditions or non-deployable medications before suggesting that an injured worker can return to work anywhere in the world on a government contract?
My solution: exclude overseas contracting jobs from labor market surveys unless the insurance carrier can demonstrate that the injured worker can secure a medical waiver.
Suitable Alternative Employment:
First, let’s discuss suitable alternative employment. Once an injured worker proves a prima facie case of total disability, the carrier must demonstrate the existence of “suitable alternative employment.” Usually, this is proven with the help of a vocational expert. The expert interviews the injured worker, maybe gives them a written test, and then prepares a report addressing the worker’s employability.
The carrier must consider the injured worker’s age, background, physical and mental capabilities, and whether jobs exist in the relevant legal community for which the claimant could reasonably compete. See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1042-43 (5th Cir. 1981).
Next comes the labor market survey. This is a list of jobs that are available in the “relevant legal community.” Typically, the jobs include a job title, brief description of the work, pay, and contact information for the potential employer. Most of the time, jobs should be found within 35 miles from the injured worker’s home. But sometimes, vocational experts prepare surveys that include jobs half a world away. These are called global labor market surveys.
Global Labor Market Surveys:
Carriers cite to a Benefits Review Board case called Patterson v. Omniplex World Services for the proposition that they may include foreign jobs on a labor market survey involving an injured DBA contractor. See Patterson, 36 BRBS 149, *6-7 (2003). To be sure, Patterson allowed the use of overseas jobs–but for very unique and fact-specific reasons. For instance, the Patterson claimant performed “post-injury security guard work in the worldwide market.” The existence of pre-injury and post-injury overseas employment extended the relevant labor market from the claimant’s home city to the entire world. Obviously, this does not apply to every injured Defense Base Act contractor.
Physical and Mental Requirements for Overseas Work:
There are rigorous physical and mental requirements that must be met prior to engaging in overseas work. I previously discussed these requirements in a prior post on this website entitled, “Non-Deployable Medical Conditions and the Defense Base Act.”
Generally, all contractors “deploying to theater must be medically and psychologically fit for deployment and possess a current Periodic Health Assessment (PHA) or physical. Fitness specifically includes the ability to accomplish tasks and duties unique to a particular operation and the ability to tolerate environmental and operational conditions of the deployed location.” That quote comes from the Civilian Personnel Online website. As does this:
A list of all possible diagnoses and their severity that may cause an individual to be non-deployable would be too extensive. Rather than relying solely on a specific list of medical conditions, the medical evaluator must carefully consider whether the climate, altitude, nature of available food and housing, availability of medical, behavioral health, dental, surgical, and laboratory services, or whether other environmental and operational factors may be hazardous to the deploying person’s health because of a known physical or psychological condition.
As you can see, there are a lot of relevant factors that must be considered before a contractor can return to work. If a contractor has a non-deployable condition, then a medical waiver is needed prior to deployment.
Remove Worldwide Contracting Jobs from Labor Market Surveys:
But what about an injured worker? Should a vocational expert be allowed to include worldwide contract work on a labor market survey when there is no indication that the military factors listed above were actually considered?
To reiterate my earlier recommendation: global contracting jobs should be removed from labor market surveys. The carrier has the burden of proving suitable alternative employment. Whether a job is suitable depends in part on the injured worker’s physical and mental capabilities. See New Orleans (Gulfwide) Stevedores, 661 F.2d at 1042-43. According to the military, overseas work for a person with non-deployable medical conditions is only appropriate after considering the hazards associated with “the climate, altitude, nature of available food and housing, availability of medical, behavioral health, dental, surgical, and laboratory services, or whether other environmental and operational factors may be hazardous to the deploying person’s health . . . .” It stands to follow that a vocational expert who identifies overseas contract work without accounting for the military-mandated hazard considerations has not identified suitable employment that an injured worker has a genuine chance of securing. Moreover, because a medical waiver is the condition precedent for deployment despite a listed medical condition, I would go a step further: the same waiver must be a condition precedent for inclusion of an overseas contracting job on a labor market survey.
Attribution: Photo courtesy of Flickr user Kevan.
