Traumatic Brain Injury is the signature injury of the Iraq and Afghanistan wars. Concerns for veterans afflicted with TBI recently gained attention in a National Geographic cover story entitled, “Blast Force: The Invisible War on the Brain.” My post expands that excellent National Geographic article to defense contractors imbedded with the military in Iraq and Afghanistan. Private contractors experience many of the same hazards that war zone soldiers experience. By extension, the same concerns about TBI for soldiers should be extended to contractors, too.
Blast Force: The Invisible War on the Brain:
Caroline Alexander’s article is an illuminating portrayal of the medical problems affecting veterans with traumatic brain injuries. Some medical professionals theorize that the physical effect of an explosive detonation, even the controlled detonation of explosives, lead to TBIs. Ms. Alexander’s explanation of the stages of an explosion supports the professionals’ theories:
BOOM: In the field a single blast event represents a virtually simultaneous amalgam of distinct components, each uniquely damaging. Ignition sparks a chemical reaction, an instantaneous expansion of gases that pushes out a spherical wall of gas and air faster than the speed of sound. This shock wave envelops any object it encounters in a balloon of static pressure. During this fleeting stage—the primary blast effect—the individual does not move. An abrupt fall in pressure follows, creating a vacuum. Then comes the secondary blast effect, a rush of supersonic wind that floods the vacuum, hurling and fragmenting objects it encounters, weaponizing debris as high-speed, penetrating projectiles.
The wind itself causes the tertiary blast effects, lifting human beings or even 15-ton armored vehicles in the air, slamming them against walls, rocks, dusty roadsides. The quaternary blast effects are everything else—fire that bums, chemicals that sear, dust that asphyxiates.
Consider that description for a moment. Following a single explosion, four distinct but nearly simultaneous effects occur—shock wave; supersonic projectiles; wind; and then fire, chemicals, and dust.
Traumatic Brain Injury and Psychological Problems:
Ms. Alexander draws a distinction between Post Traumatic Stress Disorders and Traumatic Brain Injuries. Although the two injuries share many of the same symptoms, they are not the same injury. Symptoms of TBI include:
- Motor Disorders
- Sleep Disorders
- Visual Disturbances
- Ringing in the Ears
- Mood Changes, and
- Cognitive, Memory and Speech Difficulties
But just because TBI and PTSD are distinct injuries does not mean that the two are unrelated. According to some researchers, “mild TBI may increase vulnerability to certain psychological disorders, possibly accounting for the high rate of such disorders and even suicide among veterans.” TBI is a physical injury to the brain that, among other things, can lead to the development of a psychological disorder. Unfortunately, modern medical diagnostic tests cannot definitively diagnose TBI. Still, there is hope that an advanced form of MRI, protein marker blood testing, or macromolecular proton fraction mapping could be useful in the future.
Application to Defense Base Act Claims:
“Blast Force: The Invisible War on the Brain” got me thinking about defense contractors. Some of the contractors I have encountered have experienced many of the same events that soldiers experience. For instance, translators may go out in the field with Special Forces—eating, sleeping, and surviving with soldiers for extended periods of time. Any explosion that occurred on those missions would have been felt by the contractor, too. Improvised explosive devices don’t discriminate based on employment status.
The same could be said about defense contractors who do not leave bases. Consider Forward Operating Base Shank in Afghanistan, which has the dubious nickname, “Rocket City.” Both soldiers and contractors live and work at FOB Shank. If an explosion in and of itself can cause traumatic brain injuries, then contractors who worked at heavily-bombarded bases like Shank were in harm’s way for TBIs.
There are also explosive ordinance disposal contractors working in the war theater. Among other things, these contractors teach the Afghanistan National Army (ANA) how to safely dispose of explosive devices (like IEDs) planted by insurgents along roadways. But, to teach this skill, the contractor must repeatedly detonate explosives. Each explosion is accompanied by the four-part after-effect mentioned by Ms. Alexander in her article. In fact, Ms. Alexander started her article by describing her experience at a controlled explosives bombing range in Denver, Colorado—a range that is substantially similar in purpose to the explosive ranges used in Afghanistan to train the ANA.
Treating like as like, I can easily suggest that Ms. Alexander’s article, “Behind the Mask Revealing the Trauma of War,” applies equally to war zone contractors as it does to war zone soldiers.
Defense Base Act Benefits for Traumatic Brain Injuries:
If a contractor is injured and cannot work because of a traumatic brain injury, then the contractor is entitled to disability benefits. The Defense Base Act incorporates Section 8 of the Longshore and Harbor Workers’ Compensation Act, which means that DBA claimants are paid indemnity benefits just like Longshore claimants.
I have no reason to suspect that TBI claims would be treated differently than other disability claims. The injured worker will start out temporarily totally disabled. The employer or its insurance carrier must pay compensation benefits equal to 66.6667% of the worker’s average weekly wage (up to the statutory maximum).
Once the contractor reaches maximum medical improvement, or a state of medical permanency, then the contractor is classified as permanently disabled. Whether the contractor is able to work determines the contractor’s classification as either totally or partially disabled.
The dollar value of a contractor’s TBI or PTSD claim is determined by the amount the contractor can earn in post-injury employment. If the contractor can return to work in the war zone earning wages equal to or in excess of his pre-injury wages, then he has no loss of wage earning capacity and he is not entitled to additional indemnity benefits for an unscheduled loss. On the other hand, if the contractor cannot return to work overseas, then the value of his claim is the difference between stateside earnings (if any) and his pre-injury overseas earnings. This difference can cause the value of a claim to skyrocket because stateside jobs simply do not pay as much as combat zone jobs. Determining the value of a claim is very fact dependent, and I suggest consulting an attorney to help with your claim.
In addition to compensation benefits, defense contractors are entitled to all reasonable and necessary medical expenses associated with a TBI disability. This entitlement is an import of Section 7 of the Longshore Act. Perhaps a defense contractor could request the tests that Ms. Alexander mentioned in her article, like the advanced MRI, to help diagnose TBI. To secure payment from the carrier, the tests must be both reasonable and necessary.
Payment for TBIs Coupled With Psychological Disability:
As mentioned earlier, some researchers believe that mild TBI can increase the individual’s vulnerability to psychological problems. If a defense contractor suffers a psychological disability because of his employment, then he is entitled to benefits. By the same rationale, if a defense contractor suffers a psychological disability because of a traumatic brain injury caused by a work event, then the psychological disability is just as compensable as the TBI.
My experience with psychological Defense Base Act claims leads me to believe that Ms. Alexander is right about the difficulties of diagnosing TBI versus psychological disorders like PTSD. Therefore, a lot of the PTSD claims I see are coupled with TBI claims—coupled as if they arose simultaneously. In other claims, the PTSD arose secondary to the TBI. If the PTSD is a natural and unavoidable consequence of having a traumatic brain injury, then the PTSD is a covered injury under the Defense Base Act. The good news for claimants is that, in either situation, the contractor should be awarded benefits.
Does the War Hazards Compensation Act Apply?
The War Hazards Compensation Act (WHCA) is more important to insurance carriers than to claimants. Nonetheless, claimants need to understand what the WHCA is in order to understand how a carrier evaluates the contractor’s claim.
Carriers can use the WHCA to make the government pay back every dollar paid to a claimant, but only if the Defense Base Act injury was caused by a “war-risk hazard.” Further, carriers can use the WHCA to shift a claimant’s case to the Department of Labor so that the DOL pays the claimant directly. This lets the carrier off the hook for future benefits payments because the claimant will receive benefits from the government instead of the carrier.
Carriers want to know in all cases whether the War Hazards Compensation Act applies. The facts discussed in Ms. Alexander’s article address the detonation of explosives planted by terrorists and controlled detonations of explosives. For the WHCA, not all explosions are treated equally. There are a few qualifying factors that must be addressed before the DOL will reimburse an explosives claim.
The carrier must determine whether a “hostile force or person” was involved in the blast. This should be easy enough. If the military comes across an IED in the road, then chances are high that a terrorist placed the IED. If mortars or rockets are fired into a forward operating base, then chances are high that a terrorist fired the munitions. In those cases, reimbursement would be appropriate—if not text book.
The controlled detonation explosions are trickier to resolve. One of the definitions of a “war-risk hazard” includes the “the discharge or explosion of munitions intended for use in connection with a war or armed conflict.” See 42 U.S.C. 1711(b)(3). I could easily argue that controlled detonations, even in a training setting in Afghanistan, should be considered the “discharge or explosion of munitions intended for use in connection with a war.” Consider breadth of the statutory language, which covers explosions “in connection with” a war. Surely training ANA soldiers by detonating practice explosives is a detonation “in connection with” a war. It is not like the contractor—or the United States—is there for fun…
My opinion is that both types of explosions—terrorist-placed and controlled-setting—would (1) qualify the contractor for Defense Base Act benefits, and (2) qualify the carrier for WHCA reimbursement. With that being said, a carrier that wants to avoid the reimbursement argument for controlled-setting detonations should consider resolving the underlying claim via Section 8(i) settlement instead of rolling the dice with stipulations.
What About the Other Injuries Caused by the Explosion?
In her article, Ms. Alexander mentions a number of symptoms associated with TBI. Some of those symptoms alone could qualify an injured worker for benefits, no matter whether TBI caused the injury.
For instance, hearing loss is hearing loss, no matter whether the loss was occasioned by a TBI. The explosion, in itself, could cause hearing loss. If it did, then the injured contractor is entitled to indemnity and medical benefits. An audiogram will determine the amount of compensation owed.
Conclusion–Soldiers and Contractors Are In Danger of TBIs and PTSD:
“Blast Force: The Invisible War on the Brain” is a thoughtful article that highlights the problems that soldiers experience as a result of traumatic brain injuries. TBIs, which can be caused by explosions, have very serious symptoms.
The defense contractors embedded with soldiers, or living on the same base as soldiers, experience the exact same explosions. It follows that the contractors might have the exact same injuries—TBI and PTSD—as the soldiers with whom they were stationed.
Defense contractors who are wrestling with any of the symptoms associated with TBI should seek medical treatment immediately if they have not done so already. Further, these contractors may be entitled to significant compensation and medical benefits under the Defense Base Act. The value of each claim is a case by case determination—but it is not beyond the pale to see Defense Base Act claims like this worth hundreds of thousands of dollars or more. Contractors should seek advice from an experienced Defense Base Act attorney.
Finally, for those who may be interested in additional reading, check out the following articles:
- Military.com’s Traumatic Brain Injury Overview, wherein TBI is called “the signature would of the Iraq and Afghanistan wars.”
- U.S. Department of Defense’s Special Report on Traumatic Brain Injury. The introduction says it all: “Traumatic brain injury is one of the invisible wounds of war, and one of the signature injuries of troops wounded in Afghanistan and Iraq. This Defense.gov special report highlights the Defense Department’s efforts to care for wounded warriors suffering from this condition while promoting research to improve diagnosis and treatment.”
- Behavioral Science’s scientific journal article entitled, “Specificity of Cognitive and Behavioral Complaints in Post-Traumatic Stress Disorder and Mild Traumatic Brain Injury.” This is an interesting study that compared the persistent complaints of individuals with PTSD, individuals with a mild traumatic brain injury, and individuals with both PTSD and TBI.
- The Brain Trauma Foundation’s website. There are a lot of resources available on this site.
- The Congressional Research Services’ report entitled, “Traumatic Brain Injury Among Veterans.”
Excellent image courtesy of Flickr user J E Theriot.