This post addresses Patterson and how administrative law judges analyze global labor market surveys in Defense Base Act claims.
Suitable Alternative Employment–Generally:
In Defense Base Act claims, the parties must eventually discuss the employment opportunities available to an injured worker. It is the availability of suitable alternative employment (“SAE”) that changes the classification of an injury from total to partial. Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 126 (5th Cir. 1994). Discussing SAE is inevitable.
It is an employer’s burden to prove the availability of SAE. Norfolk Shipbuilding & Drydock Corp. v. Hord, 193 F.3d 797, 800-01 (4th Cir. 1999). Usually, the employer’s insurance carrier will hire a vocational expert to prepare a labor market survey. The survey must “demonstrate the reasonable availability of suitable alternative employment in the open labor market.” Id. at 800. The carrier myst consider the injured worker’s age background, physical and mental capabilities, and whether jobs exist in the relevant community for which the claimant could reasonably compete. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1042-43 (5th Cir. 1981).
Patterson and Its Progeny:
All of this leads to a case called Patterson v. Omniplex World Services. See 36 Ben. Rev. Bd. Serv. (MB) 149 (2003). In Patterson, the Benefits Review Board determined that, because of the “unique facts” presented in Patterson, the relevant labor market for the labor market survey could include overseas locations. After his injury, Mr. Patterson returned to overseas security guard work. When that post-injury return to overseas work was combined with Mr. Patterson’s history of pre-injury overseas work, the relevant labor market was extended from the claimant’s home to the entire world. In that limited circumstance, it was permissible to consider overseas locales when determining the availability of suitable alternative employment.
Since Patterson, the Benefits Review Board has gone to lengths to explain—repeatedly—that Patterson is limited to its facts.
In Knipp v. Service Employees Int’l, Inc., BRB No. 12-0390 (Apr. 17, 2013) (unpublished), the Board distinguished the Knipp facts from Patterson. Mr. Knipp had not made a career of overseas employment, even though he had two prior overseas stints. Further, Mr. Knipp had not looked for overseas jobs following his injury. Therefore, the administrative law judge rationally declined to consider overseas jobs in the labor market survey.
In Herfi v. Global Linguist Solutions, BRB No. 16-0691 (July 19, 2017) (unpublished), the Board distinguished Patterson, noting that the “claimant not only had an extensive history of working overseas pre-injury, but he had actually worked overseas after his injury, as the Board emphasized.” Those were unique facts. Because the facts in Herfi were dissimilar, the administrative law judge rationally concluded that “there is no requirement in case law that overseas jobs must be considered in defining the relevant labor market for every Defense Base Act claimant.”
How Judges Address Patterson — By the Numbers:
The real-world legacy of Patterson is seen most often in the trenches of pretrial litigation, whether in the form of settlement negotiations or outright litigation posturing. But, how well does Patterson actually hold up in a courtroom? And what have administrative law judges said about both the decision and the use of global labor market surveys?
The OALJ website has an extensive search engine that can be used to pull up key words from OALJ decisions. As of March 18, 2019, a search for “Omniplex” produced a laundry list of cases, the vast majority of which refused to apply Patterson because the facts in each subject case did not match the “unique facts” referenced in Patterson.
Below, I have provided links to OALJ decisions that addressed Patterson-related labor market survey arguments. Of the decisions I found, 25 refused to apply Patterson, and 3 applied Patterson.
The anti-Patterson cases include:
- Ales v. Service Employers International, 2016-LDA-00644;
- Apostolovski v. Fluor Federal Global, 2015-LDA-00377;
- Bales v. L-3 Communications, 2011-LDA-00178;
- Bartley v. Service Employees International, 2010-LDA-00060 (decision on remand);
- Brandon v. L-3 Communications, 2014-LDA-00761 (both the order denying reconsideration and the modification proceeding);
- Cuadros v. Academi Training Center, 2014-LDA-00580;
- Daniels v. Fluor Federal Global Projects, 2015-LDA-00770;
- Defrancisco v. USTC-Blackwater, 2014-LDA-00378;
- Dillon v. Blackwater Security Consulting, 2014-LDA-00254;
- Elkins v. KBR, 2014-LDA-00836;
- Garnett v. Washington Demilitarization Co., 2003-LHC-02662;
- Herfi v. Global Linguist Solutions, 2013-LDA-00120;
- Hickey v. Blackwater Security, 2008-LDA-00386;
- Hobbs v. Service Employees International, 2014-LDA-00531;
- Keller v. Lockheed Martin, 2014-LDA-00239;
- Khan v. Vertiss, LLC, 2015-LDA-00315
- Ledbetter v. U.S. Training Center, 2016-LDA-00010;
- Lewis v. Fluor Daniel Corporation, 2012-LDA-00510;
- Luker v. Triple Canopy, 2015-LDA-00731;
- Minto v. Science Applications, 2015-LDA-00241;
- L.N. v. KBR Government Operations, 2006-LDA-00121;
- Raymond v. Blackwater Security, 2009-LDA-00293;
- Salvatore v. ITT Corporation Systems, 2010-LDA-00372;
- Sherman v. Mantech International, 2013-LDA-00160; and
- Willis v. Dyncorp International Free-Zone, 2011-LDA-00487.
The pro-Patterson cases include:
- Brower v. Service Employes International, 2014-LDA-00435;
- Busse v. Service Employers International, 2009-LDA-00283; and
- Larsen v. Service Employees International, 2010-LDA-00353.
It’s All About the “Unique Facts:”
What to make of this? In my opinion, Judge William Dorsey succinctly stated the Patterson doctrine (especially after Knipp) vis a vis overseas employment: “There is no duty to seek more overseas employment after recovering from an overseas injury. But if a claimant does pursue overseas work after reaching MMI, overseas jobs become relevant alternative employment.” See Brandon v. L-3 Communications, 2014-LDA-00761 (OALJ Nov. 18, 2015). See also Herfi v. Global Linguist Solutions, 2013-LDA-00120 (July 22, 2016). Keep in mind that the Benefits Review Board upheld Judge Dorsey’s Herfi decision, albeit in an unpublished decision. See Herfi v. Global Linguist Solutions, BRB No. 16-0691 (July 19, 2017).