Are service animals covered by the Longshore Act and the Defense Base Act as “medical benefits”? If so, what types of service animals are covered?
Medical Benefits:
To begin to answer the service animal questions, let’s look at Section 7 of the Longshore Act. Section 7 defines an employer’s obligation to pay medical benefits. Pursuant to that statute, the “employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.” See 33 U.S.C. § 907 (emphasis added). For the cost of the medical treatment to be assessed against the employer or its insurance carrier, the medical expense corresponding to the work-related injury must be both reasonable and necessary.
That is the general framework for medical treatment. Employers shall provide treatment, but only treatment that is medically reasonable and necessary.
In a regulation applicable to Longshore Act and Defense Base Act claims, 20 C.F.R. § 702.401(a), the Secretary of Labor defined the type of “medical care” that is typically found to be reasonable and necessary:
Medical care shall include medical, surgical, and other attendance or treatment, nursing and hospital services, laboratory, X-ray and other technical services, medicines, crutches, or other apparatus and prosthetic devices, and any other medical service or supply, including the reasonable and necessary cost of travel incident thereto, which is recognized as appropriate by the medical profession for the care and treatment of the injury or disease.
Pretty broad, right?
Nonetheless, litigants to Longshore and Defense Base Act cases still bicker over what is included as a Section 7 medical benefit. In many cases, the claimant emerges victorious:
- In Dupre v. Cape Romain Contractors, Inc., a published Benefits Review Board case, the BRB determined that modifications to the claimant’s home were covered as medical expenses. The BRB and the administrative law judge likened the modifications to coverage of an “apparatus.” The modifications included ramps, widened doorways, handicapped-accessible plumbing fixtures and other charges. A similar result was reached in Forrest v. BAE Systems Norfolk Ship Repair, an unpublished BRB case.
- In Slade v. Coast Engineering and Manufacturing Co., an unpublished Benefits Review Board case where a hot tub was examined as a medical expense. The record contained “evidence that a qualified physician specifically recommended that claimant use a hot tub in his physical therapy program and prescribed the Jacuzzi for home treatment.”
- In Shannon v. I.M.C. Global, the Benefits Review Board agreed with the administrative law judge’s finding that the employer was liable for a motorized wheelchair, electric rear vehicle lift, and “other independent living needs” expenses.
- In Day v. Ship Shape Main. Co., the Benefits Review Board determined that the cost of a van with an automatic lift was a Section 7 medical expense.
- In M. Cutter Co, Inc. v. Carroll, the Ninth Circuit upheld the finding that the claimant required 24-hour attendant care, and that the employer was liable for that care. A similar result was reached in Falcone v. General Dynamics Corp., when the Benefits Review Board upheld an award of home health care.
The Longshore Act and Defense Base Act cover everything from surgery to hot tubs, provided there is credible evidence from a qualified medical professional that the expense is medically reasonable and necessary to treat the work-related injury.
Different Types of Service Animals:
More likely than not, most people associate service animals with dogs. Or, at least that is the first animal that comes to mind. The truth of the matter is that there isn’t one single definition of “service animal.” As such, whether an animal is a service animal is a complex question. It depends on the type of animal and the statutory scheme involved. I am going to talk briefly about two of those statutory schemes.
Under the Americans with Disabilities Act (ADA), service animals include “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” See 28 U.S.C. § 36.104 (emphasis added). The U.S. Department of Justice’s website provides illustrative examples of the types of activities performed by service animals. Those activities include “guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties.”
Emotional support animals are not service animals under the ADA. The exclusion of emotional support animals from coverage under the ADA has garnered a fair amount of protest. See, e.g., Rebecca J. Huss, Why Context Matters: Defining Service Animals Under Federal Law, 37 Pepp. L. Rev. 1163 (2010).
The Fair Housing Act (FHA) takes a broader approach. The Department of Housing and Urban Development (HUD) administers the FHA. Instead of using the term “service animals,” HUD uses the term “assistance animals.” HUD’s “assistance animals” definition includes:
[A]nimals that are used to assist, support, or provide service to persons with disabilities. Assistance animals–often referred to as “service animals”,”assistive animals”, “support animals”, or “therapy animals”–perform many disability-related functions including but not limited to guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing minimal protection, or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disability who have a disability-related need for such support.
HUD’s definition of “assistance animals” is much broader than the ADA’s “service animal” definition. For the Fair Housing Act, emotional support animals fall within the scope of the FHA even though the same animal falls outside of the scope of the ADA. Further, assistance animals are not limited to dogs. Cats or ferrets–just to offer two examples–could qualify as assistance animals.
The reason it is important to explore other definitions of “service animals” and “assistance animals” is because neither the Longshore Act nor the Defense Base Act mention service animals or assistance animals in the pertinent statute, 33 U.S.C. § 907, and regulation, 20 C.F.R. 702.401. So, for coverage as a medical benefit, it is important to imagine the ADA’s treatment of service animals and the FHA’s treatment of assistance animals as two sides of the same coin. The ADA is the rigid side; the FHA is the flexible side.
Are Service Animals Covered By the Longshore Act and the Defense Base Act?
Like I mentioned earlier, both the Longshore Act and the Defense Base Act offer broad coverage for medical benefits. The two Acts don’t cover anything and everything, but they do cover all reasonable and necessary medical expenses.
Consequently, my opinion is that a service animal or assistance animal is covered by the Longshore and Defense Base Acts, provided that a qualified physician or mental health professional determines in writing that the service animal is a reasonable and necessary medical expense.
No matter whether the animal is categorized as an “apparatus,” a “prosthetic,” “other attendance” or “any other medical service or supply,” coverage exists if a medical professional confirms that the animal is a reasonable and necessary for the treatment of the claimant’s work-related injury. See 33 U.S.C. § 907; see 20 C.F.R. § 702.401(a).
Moreover, if Longshore and Defense Base Act litigants must look to a federal statutory model for determining what type of animal is covered, they could look to the FHA’s treatment of “assistance animals” instead of the ADA’s definition of “service animal.” Emotional support animals should be covered–especially with the growing number of contractors returning from combat zones with Post Traumatic Stress Disorder.
Further, the ADA’s definition of “service animal” is limited to dogs. Some Longshore and Defense Base Act claimants, however, may be averse to dogs for religious or other legitimate reasons. As such, equal treatment amongst claimants would seem to require use of the broader “assistance animal” definition, a definition that supports the inclusion of other animals besides dogs. Claimants should have equal access to different species of assistance animals (i.e., cats, ferrets, etc.).
Besides the basic question of coverage for a service animal, Longshore Act and Defense Base Act litigants must consider which costs associated with the animal are covered. The purchase price of the animal, which could include training, housing and veterinary care, should be taxed to the employer and carrier. Veterinary visits and additional training or certification courses should likewise be covered. I doubt, however, that costs for day-to-day expenses (e.g., food, grooming, toys) will be covered–but there arguments in favor of coverage.
In conclusion, there are no reported decisions discussing coverage of service or assistance animals as a qualifying medical expense under the Longshore Act or the Defense Base Act. As the use of these animals becomes more prevalent in our society, the question of coverage is bound to arise. A fair reading of the applicable statute, regulation, and caselaw suggests that employers and carriers will be held liable for medically reasonable and necessary service or assistance animals.
Additional Reading:
For those who are interested in additional reading about service animals or animal law, here are some suggestions:
- Rebecca Huss, Why Context Matters: Defining Service Animals Under Federal Law, 37 Pepp. L. Rev. 1163 (2010). There is a great, in-depth analysis of federal and state statutes and regulations discussing service animals.
- U.S. Department of Justice’s Service Animals webpage. If you want to know more about the ADA’s treatment of service dogs this is a great place to start.
- Disability Rights California has great writeup called, “Psychiatric Service and Emotional Support Animals.” The article addresses federal and California state laws. Keep in mind that different States have different definitions for service animals. For this post, I focused exclusively on federal law.
- John Ensminger, Service and Therapy Dogs in American Society (2010). Mr. Ensminger is also the author and editor-in-chief of a really interesting blog called “Dog Law Reporter.“
Attributions:
Service dog photograph courtesy of Flickr user Found Animals Foundation.
I took the photograph of the Siamese cats.
Guide dog photograph courtesy of Flickr user smerikal.
Invitation:
If you have any questions about this topic or any other Longshore Act and Defense Base Act medical coverage questions, feel free to contact me at (985) 246-3194 or [email protected]. I am here to help injured workers obtain the benefits to which they are entitled.
