In nearly every Defense Base Act claim that involves an “unscheduled” injury, the parties will debate the level of work the claimant can perform after his injury. Sometimes, the employer and carrier will argue that the claimant can perform overseas contracting work…just not in a “war zone.” But, is “war-zone” work versus “non-war zone” work really the distinction that should be drawn?
Proving Suitable Alternative Employment:
If an injured employee establishes that they cannot return to the job that they held at the time of injury, then they are presumed to be totally disabled. To rebut the presumption, employers and insurance carriers often hire vocational experts to prepare a labor market survey. According to the vocational expert, the labor market survey will provide a list of jobs which the injured worker can allegedly perform. These jobs are commonly referred to as suitable alternative employment.
Not every job is suitable for an injured worker. As such, an employer and carrier can only prove the existence of suitable alternative employment after considering the injured worker’s age, education, work experience, and medical restrictions. Further, the identified jobs must be “realistically available”.
“War Zone” Versus “Non-War Zone” Jobs:
Most jobs identified in a labor market survey are close to the injured worker’s residence in the United States. Employers and carriers realize that they cannot make the typical claimant move to a different part of the country just so that the employer and carrier can satisfy its suitable alternative employment burden.
That being said, there are always a couple of outlying jobs identified on the labor market surveys. These outlying jobs are “non-war zone” defense contracting positions. The theory is that, even if a claimant is restricted from returning to work in a “war zone,” they could still work in a “non-war zone” and earn very high wages. The “non-war zone” jobs are typically located in Kuwait and Qatar.
Focus on the Command Theater?
There is a regulation that indicates the “war zone” versus “non-war zone” distinction might be a distinction without a difference. In 32 C.F.R. § 158.7, there is a list of non-deployable medical conditions (or “conditions usually precluding medical clearance”). The list of medical conditions includes both psychological and physical injuries. In effect, an injured worker who has one of the conditions on the list should not be deployed. The government expects defense contractors to “provide personnel who meet such medical and dental requirements as specified in their contracts.” Id.
There is, however, another interesting statement in the regulation that pertains to specific military theaters. The regulation requires each Combatant Commander to “establish theater-specified medical qualifications.”
So, what are the theaters referenced in 32 C.F.R. 158.7? The theaters are the world commands and their area of responsibility. These geographic regions include:
- USCENTCOM, often just called CENTCOM.
Most Defense Base Act jobs are in CENTCOM, which includes Afghanistan and Iraq. But those are not the only CENTCOM countries. CENTCOM includes:
- Saudi Arabia
- United Arab Emirates
Based on the express language of 32 C.F.R. 158.7, which discusses “theater-specific” medical qualifications, it follows that the qualifications applicable to Afghanistan and Iraq are also applicable to Kuwait and Qatar because they are in the same “theater.”
When analyzing suitable alternative employment in a Defense Base Act claim, should the litigants focus on a distinction between a “war zone” and a “non-war zone”? Or, should they focus on the regulation that defines the medical conditions that prevent work as a contractor? Considering that suitable alternative employment should include realistically available jobs, I believe the focus should be on the regulations as opposed to the “war-zone” or “non-war zone” distinction.
If you are interested in additional reading, check out the following:
- My article: Non-Deployable Medical Conditions and the Defense Base Act.
- My article: Non-Deployable Medications.
- Department of Defense Instruction No. 3020.41.
- Department of Defense Instruction No. 6490.07.
- Amplification of the Minimal Standards of Fitness for Deployment to the CENTCOM AOR.
Really, there are many more articles online. This list is not comprehensive.