The U.S. Central Command recently released MOD FOURTEEN, which identifies the current minimal fitness standards required for deployment to the USCENTCOM Area of Responsibility (as of October 2019).
Why is MOD FOURTEEN Important?
MOD FOURTEEN, just like earlier MODs, is extremely important for Defense Base Act claims. Why? Because if a contractor cannot satisfy MOD FOURTEEN’s fitness standards, then the contractor is unemployable in any USCENTCOM country.
Think about it in terms of releases to return to work. MOD FOURTEEN defines the absolute minimal physical and mental fitness requirements for a return to work after an overseas work injury. If the claimant does not meet the minimal standards, the claimant may not deploy absent a medical waiver.
Total Versus Partial Disability and Labor Market Surveys:
In a Defense Base Act claim, an injured claimant who cannot return to their pre-injury job is presumed to be totally disabled. Total disability means that the claimant cannot perform any work whatsoever.
To rebut the presumption, the insurance carrier must prove:
- The claimant can return to their pre-injury job; or
- The claimant can engage in suitable alternative employment.
If the carrier is successful, then the burden shifts back to the claimant to show that he diligently but unsuccessfully tried to secure employment. A diligent but ultimately unsuccessful claimant remains totally disabled. On the other hand, if a court determines that the claimant was not diligent in his search for work, then the claimant is deemed partially disabled.
When an insurance carrier attempts to prove the availability of suitable alternative employment, it does so by commissioning a labor market survey. A vocational expert will interview the claimant and then prepare a report that provides a list of jobs allegedly available to the claimant.
The Problem with Some Labor Market Surveys:
The problem with some labor market surveys in Defense Base Act claims is the inclusion of overseas jobs. Labor market surveys typically identify:
- Jobs near the claimant’s home off record;
- Jobs in other States;
- Alleged “non-war zone” jobs; and
- Overseas jobs in war zones like Afghanistan and Iraq.
Although many labor market surveys are debated in DBA claims, the inclusion of jobs in other States or countries is often a topic of debate. Essentially, the insurance carrier is suggesting that it should be allowed to reduce its liability because a claimant must leave their home to secure higher paying work.
MOD FOURTEEN affects the list of jobs in labor market surveys when those jobs are located in the USCENTCOM Area of Responsibility. If a claimant cannot meet the physical and mental fitness standards identified in MOD FOURTEEN, then any labor market surveys jobs located in the USCENTCOM Area of Responsibility are inappropriate. A carrier cannot point to those jobs to satisfy their suitable alternative employment burden.
The USCENTCOM Area of Responsibility:
Earlier, I mentioned that labor market surveys often identify jobs in “non-war zones.” This is a subject I wrote about in a prior post. The problem, though, is the vocational expert’s definition of “non-war zones.” For example, defense experts often identify Kuwait, Saudi Arabia, and Qatar as “non-war zone” jobs.
But MOD FOURTEEN is not limited to what a vocational expert defines as “non-war zone.” Instead, MOD FOURTEEN applies to all of the U.S. CENTCOM Area of Responsibility, which includes the following countries:
- Saudi Arabia
- United Arab Emirates
When a claimant cannot return to work in Afghanistan or Iraq because they cannot satisfy MOD FOURTEEN’s minimal standards of physical and mental fitness, then that claimant cannot work in any USCENTCOM country (including Kuwait, Saudi Arabia, and Qatar).
The Big Differences Between MOD THIRTEEN and MOD FOURTEEN:
Before MOD THIRTEEN, MOD TWELVE controlled fitness standards. Perhaps the biggest change between MOD TWELVE and MOD THIRTEEN involved the fitness standards for mental health disorders (including Post Traumatic Stress Disorder). There is a great write-up online that discusses the changes that MOD THIRTEEN made to the deployment requirements, and I have linked it here.
But, MOD THIRTEEN isn’t that old. So, why do we need MOD FOURTEEN?
Medical waivers may have prompted MOD FOURTEEN’s adoption. There are many conditions which could render a contractor non-deployable. Some of those conditions are subject to medical waivers. Under MOD THIRTEEN, a claimant’s personal doctor could sign a waiver for overseas employment despite the existence of a non-deployable medical condition.
MOD FOURTEEN confirms that only the “CENTCOM Surgeon and/or the Service Component Surgeon” have waiver authority. An “individual’s medical evaluating entity, deploying platform, or Commander” does not have medical waiver authority. The change in waiver authority could affect the use of overseas jobs in labor market surveys. Litigants can argue the worthlessness of a waiver or release from an unauthorized agent.
Further, MOD FOURTEEN changed the nomenclature for mental health issues. MOD FOURTEEN refers to “Behavioral Health Conditions” and “Behavioral Health Disorders” instead of “Psychiatric Conditions.” The new MOD also endorses the use of the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). MOD THIRTEEN allowed the use of either the Fourth or Fifth Editions.
Interestingly, the Body Mass Index guidelines have been loosened. Whereas the BMI cutoff was 35 in MOD THIRTEEN, it is 40 in MOD FOURTEEN.
An overseas work injury may render a claimant non-deployable. The ability to deploy is based on the minimal standards of physical and mental fitness announced in MOD FOURTEEN. Before a claimant should be deemed cleared to return to work overseas, MOD FOURTEEN should be considered. And based on MOD FOURTEEN, if a waiver is required, the waiver must be approved by the CENTCOM Surgeon and/or the Service Component Surgeon as opposed to a private doctor.