Contractors experiencing PTSD likely have problems with anger, anxiety, depression, forgetfulness, frustration, sleeplessness, stress, and withdrawal. They are likely asking themselves how long these symptoms are going to last. To answer this question and consider the legal effect of long lasting disability, contractors must consider the Diagnostic and Statistical Manual of Mental Disorders and the Defense Base Act.
The Diagnostic and Statistical Manual of Mental Disorders:
The “go-to” manual for the diagnosis of mental disorders is the American Psychiatric Association’s DSM-5. Essentially, think of the DSM-5 as a one-stop shop for the basic criteria necessary for a PTSD diagnosis. But the DSM-5 contains more than a basic list of diagnostic criteria. It also contains a section entitled, “Development and Course,” which discusses the length of time that it may take for PTSD to develop, as well as the length of time that PTSD may last.
As for the time it may take for PTSD to develop, the DSM-5 says:
PTSD can occur at any age, beginning after the first year of life. Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what [the last edition of the DSM] called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria.
What does this mean? It means that the PTSD does not have to arise immediately after the event or events that caused the PTSD. There could be a months-long or even years-long delay before the full PTSD criteria is expressed.
As for the time that PTSD may last, the DSM-5 says:
Frequently, an individual’s reaction to a trauma initially meets criteria for acute stress disorder in the immediate aftermath of the trauma. The symptoms of PTSD and the relative predominance of different symptoms may vary over time. Duration of the symptoms also varies, with complete recovery within 3 months occurring in approximately one-half of adults, while some individuals remain symptomatic for longer than 12 months and sometimes for more than 50 years. Symptom recurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events. For older individuals, declining health, worsening cognitive functioning, and social isolation may exacerbate PTSD symptoms.
So, how long might PTSD last? Pragmatically speaking, it could last anywhere from 3 months to life. Further, PTSD symptoms may recur—perhaps with greater intensity—in response to reminders of the original trauma.
Added Risk for Civilian and Military Contractors?
Previously, I wrote an article, The Defense Base Act, Traumatic Brain Injury, and PTSD, which highlighted why it is appropriate to extend concerns about soldiers with traumatic brain injury and PTSD to military contractors. In short, contractors who are exposed to the same dangers as soldiers have the same likelihood of developing Traumatic Brain Injury or PTSD as soldiers.
The DSM-5 supports my hypothesis. The DSM-5’s diagnostic criteria for PTSD specifically contemplates “exposure to war as a combatant or civilian, threatened or actual physical assault” and “terrorist attacks.” On top of that, the DSM-5 recognizes that the rates of PTSD “are higher among veterans and others whose vocation increases the risk of traumatic exposure.” And, the “highest rates” of PTSD are found “among survivors . . . of military combat.’
The diagnostic features of PTSD confirm that civilian or military contractors exposed to war events have a higher likelihood of developing PTSD. In fact, one study suggests that contractors may be at a higher risk for the development of PTSD.
In Out of the Shadows: The Health and Well-Being of Private Contractors Working in Conflict Environments, the RAND Corporation sought to bridge the gap in mental health research between combat zone soldiers and combat zone contractors. The findings are illuminating. For example:
- Out of the contractors surveyed, 25% were probable for PTSD. By comparison, the Institute of Medicine estimated that 4% to 20% of U.S. military troops deployed to Iraq or Afghanistan have PTSD.
- Longer deployments and increased combat exposure led to higher rates of PTSD among contractors.
- Only 16% of the surveyed contractors ever made a Defense Base Act claim. And among the respondents who applied for benefits, 57% of the contractors said their claims were approved, 37% said their claims were denied or were still being processed, and 6% did not know the outcome of their DBA claims.
- Contractors from the United States were more likely to file DBA claims than those from other countries—even though the Defense Base Act is open to third country nationals and local nationals, too.
- Only 28% of the contractors with probable PTSD received mental health treatment in the year preceding the survey.
The RAND study also identified serious deficiencies in mental health awareness for civilian or military contractors. Too few contractors were provided with stress management training prior to a combat deployment; too many contractors fear the stigma associated with mental health care; and there is only a limited amount of contractor-specific mental health research. Nonetheless, “there is ample evidence to support the argument that contractors deployed to conflict zones face mental health and physical challenges that are similar to those of their military counterparts, which whom they often work side by side.”
The Defense Base Act and Psychological Injuries–In a Nutshell:
The Defense Base Act pays medical and indemnity benefits to injured contractors. Psychological injuries are covered by the Defense Base Act. If a contractor is unable to engage in gainful employment because a work-related psychological injury prevents employment, then the contractor is entitled to benefits.
Medical benefits are paid according to Section 7 of the Longshore and Harbor Workers’ Compensation Act. Employers and carriers are required to pay for treatment that is medically reasonable and necessary. In the context of a mental health injury, employers and carriers should pay for visits to the psychologist and psychiatrist, medical mileage reimbursement equal to the miles traveled by the injured worker to his appointments, and psychiatric medications (e.g., Wellbutrin, Lamictal, Lunesta, etc.).
Indemnity benefits are paid according to Section 8 of the Longshore and Harbor Workers’ Compensation Act. There are four classifications of disability benefits: temporary total, temporary partial, permanent total, and permanent partial. The difference between the classifications depends on the”permanency” of the injured worker’s medical status and whether the injured worker can engage in post-injury employment. For example, an injured worker who has not yet reached maximum medical improvement and cannot work is considered to be temporarily totally disabled. Yet, an injured worker who has reached maximum medical improvement and can work is considered permanently partially disabled.
Further, there are two classifications of injury: “scheduled” and “unscheduled.” If the injury is “scheduled,” then the worker is paid a percentage of a preset number of weeks established by Congress based upon the site of the injury. Arms are worth 312 weeks; legs are worth 288 weeks; and so on. But, if an injury is “unscheduled,” then the injured worker is paid two-thirds of the difference between their pre-injury and post-injury wages.
Psychological injuries are “unscheduled.” As such, contractors who are permanently and partially disabled because of a psychological injury must receive two-thirds of the difference between their pre-injury and post-injury wages.
Permanent Partial Disability and PTSD:
I posed a question in the title of this post: how long will a contractor’s PTSD last? This is more than a medical question. It is a legal disability question, too.
From a medical standpoint, there is no way to quantify the amount of time it will take an individual contractor to heal from their PTSD. Medical conditions are particular to the afflicted person. The DSM-5 provides a wide-open time frame for symptoms, which can persist from 3 months to 50 years. Further exposure to the stressors that caused the PTSD in the first place could lead to a resurgence of PTSD that is otherwise in remission. The RAND report, Out of the Shadows, confirms that too few contractors are getting the help they need, which can lengthen the time it takes for a contractor to heal.
From a disability standpoint, the issue is how the PTSD affects the injured worker’s ability to engage in post-injury employment. If the injured worker has reached maximum medical improvement and is able to engage in gainful employment despite his PTSD, then the worker has reached a state of permanent partial disability. Defense Base Act indemnity benefits must continue to be paid at an appropriate compensation rate, which is determined by comparing the injured worker’s pre-injury and post-injury wages.
Typically, this disability question arises after the injured worker has reached maximum medical improvement. Once that happens, a vocational expert usually evaluates an injured worker’s employability and, if appropriate, prepares a list of jobs in which the injured worker may engage. In practice, a medical expert evaluates whether the jobs on the vocational expert’s list are appropriate for the injured worker. Some of the questions that a mental health professional should consider include:
- Whether the injured worker can return to work overseas and perform their pre-injury employment?
- If the injured worker returns to work in a combat zone, will their PTSD come back with a vengeance?
- Whether the injured worker can engage in suitable stateside employment?
- How the symptoms associated with the disorder–such as anger, anxiety, forgetfulness, and irritability–affect the injured worker’s ability to both get a job and keep a job?
The importance of these questions can’t be overstated. The Defense Base Act–like all workers’ compensation systems–favors an injured worker’s return to work. At the same time, it seems unlikely that a mental health professional could legitimately release an injured worker with a prior combat-related PTSD diagnosis to return to work in a combat zone. The DSM-5 warns that symptoms may recur or intensify “in response to reminders of the original trauma.”
From a medical standpoint, PTSD may last anywhere from a few months to fifty years. But, from a legal disability standpoint, PTSD may last forever, no matter if the PTSD symptoms are in remission. The possibility that PTSD could return if the injured worker is exposed to the same events or traumas that initially caused the PTSD may keep a mental health professional from releasing the claimant to return to work in a combat zone. As such, the disability continues and the injured worker’s benefits must be calculated by comparing war zone wages to subsequent wages–most likely subsequent stateside wages.
Providing DBA Benefits and Seeking WHCA Reimbursement:
Carriers should authorize Defense Base Act benefits for their PTSD claimants. My impression from the DSM-5 and Out of the Shadows is that late coverage for medical treatment associated with PTSD can cause the disorder to worsen. Perhaps providing treatment will allow the injured worker to heal in a period of time closer to 3 months than 50 years.
Instead of fighting the injured worker, carriers can position the claim for reimbursement under the War Hazards Compensation Act. The WHCA applies when a worker was injured by a “war-risk hazard.” Combat-related events typically fall within the “war-risk hazard” definition. If the WHCA applies, then carriers will be reimbursed for the benefits and expenses that it paid while administering or litigating the Defense Base Act claim. Typically, WHCA claims are only filed after the injured worker reaches permanent partial disability. So, again, providing treatment sooner rather than later may be in the carrier’s best interest.