The Longshore and Defense Base Act statute of limitations has a lot of power–like the power to nullify an injured worker’s indemnity benefits claim. But the statute of limitations is not invulnerable. In this post, I am going to talk about a qualifier attached to some Post Traumatic Stress Disorder diagnoses–“delayed expression”–and how that qualifier could affect the Longshore and Defense Base Act statute of limitations.
“Delayed Expression” Post Traumatic Stress Disorder:
Mental health professionals use the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders to diagnose mental disorders. The most recent version, called the DSM-5, is a one-stop shop for the criteria needed for a Post Traumatic Stress Disorder diagnosis. In addition to a basic list of diagnostic criteria, the DSM-5 has a section entitled, “Development and Course,” which discusses the length of time that it may take for PTSD to develop. Specifically, 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.
So, according to the American Psychiatric Association, it could take years for PTSD to fully develop. This late development–or “delayed expression”–could cause issues with the Longshore and Defense Base Act’s statute of limitations.
Statute of Limitations:
For Defense Base Act claims, the statute of limitations is actually found in Section 13 of the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C. 913. There is a different time period for traumatic injuries and occupational diseases. In short, traumatic injuries have a one year statute of limitations, and occupational diseases have a two year statute of limitations.
Still, there are some fine points to consider when dealing with delayed expression PTSD. As such, it is worthwhile to quote Section 13 here:
(a) Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefor is filed within one year after the injury or death. … The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the existence of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.
(b)(2) Notwithstanding the provisions of subsection (a), a claim for compensation for death or disability due to an occupational disease which does not immediately result in such death or disability shall be timely if filed within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability….
To reiterate, traumatic injuries get a one year statute of limitations; but occupational disease get a two year statute of limitations. With respect to PTSD claims, it can be difficult determining which limitations period–one year or two years–applies.
I have seen courts take a pragmatic–and, in my opinion, reasonable–approach to solving this problem. If the event that caused the psychological disability was caused by a single event, then the traumatic injury limitations period applies. However, if multiple events contributed to the psychological disability, which is the result of cumulative exposure to war events, then the occupational disease limitations apply. In other words, if the claimant experienced one event, then apply the one year statute of limitations; but if the claimant experienced two or more events, then apply the two year statute of limitations. This varying statute of limitations period is an import from state workers’ compensation law. See, e.g., Brunell v. Wildwood Crest Police Dept., 822 A.2d 576 (N.J. 2003).
Focus On the Impairment to Earning Power:
The courts that have interpreted the Longshore and Defense Base Act’s statute of limitations with respect to psychological disabilities have said that the employee needs to know (or at least should have known) that the psychological disability caused a permanent impairment in earning power.
For example, in Dyncorp International v. Director, OWCP, 658 F.3d 133 (2d Cir. 2011), the Second Circuit examined the statute of limitations as it pertained to a woman who was injured in an attack in Kosovo. Not long after she showed up for her first day of work on the job, the claimant and five other Dyncorp employees were shot by a Jordanian soldier. Three of the victims died, but not the claimant. Instead, she suffered a wounded left leg and pelvis. Then, as time went on, the claimant began experiencing trouble sleeping, intrusive thoughts, and anxiety. A company doctor concluded that the claimant was experiencing depression, PTSD, and possible a histrionic personality disorder, but the doctor never communicated these diagnoses to the claimant.
Eventually, the employer decided to send the survivors of the Kosovo shooting back to the United States, a year earlier than the claimant expected. The claimant went to work for the Kansas Department of Corrections but the DOC felt that she was mentally unfit to carry a weapon. Thus, the DOC assigned the claimant to a desk job that paid less than a gun-carrying special enforcement officer. The claimant filed a Defense Base Act claim against Dyncorp, which the company denied.
The Second Circuit had the last word in the claimant’s Defense Base Act claim. The issue was when the claimant knew, or reasonably should have known via constructive knowledge, that she suffered a permanent impairment to her earning power as a result of the shooting. The Second Circuit decided that the statute of limitations did not begin to run until the Claimant was sent home from Kosovo. Thus, the Defense Base Act claim that she filed nearly two years after the shooting was timely.
The importance of the Second Circuit’s Dyncorp decision is that it makes clear that the focus is on earning power. The question that the Defense Base litigants must ask for all claims involving a statute of limitations issue is when the claimant knew or should have known that the work-related injury caused an earning power impairment.
(One final note on the Dyncorp case: notice how the Second Circuit used a one year statute of limitations period. I believe the one year statute of limitation period was used because the claimant’s psychological injury and disability was caused by a single event: the Kosovo shooting. If her injury and disability were caused by multiple events, a two year limitations period would have been more appropriate.)
Applying Science to Law:
The American Psychiatric Association said that it could take months or years for full-blown PTSD to manifest. When that time delay occurs, mental health professionals may assign the “delayed expression” qualifier to the PTSD diagnosis. The “delayed expression” qualifier is appropriate in cases where “the full diagnostic criteria [for PTSD] are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).” But how should the “delayed expression” qualifier affect the Defense Base Act’s statute of limitations?
I suggest that the statute of limitations should not begin to run against a claimant with “delayed expression” PTSD until the claimant knows or should have known that:
- They have full blown PTSD, with all diagnostic criteria expressing themselves, even if the expression time table was delayed;
- The PTSD is related to an event or events that occurred at work; and
- The PTSD has impaired their earning power.
I understand that this could have the effect of extending the statute of limitations for a long time. Still, though, can a claimant actually know that their earning power has been impaired by work-related PTSD until the PTSD “expresses” itself? Maybe, maybe not. Each case has its own set of facts that must be scrutinized carefully. Perhaps there were co-morbid psychological conditions in addition to the PTSD that caused a work disability.
To be sure, the “delayed expression” qualifier is not a requirement for tolling the statute of limitations. DBA litigants should focus on the statute and the interpretation afforded by courts. Still, the “delayed expression” qualifier cannot hurt a claim for DBA benefits associated with PTSD where there is an adverse statute of limitations argument. As such, DBA claimants may want to consider whether the qualifier could be attached to their PTSD diagnosis. Think of the “delayed expression” qualifier like kryptonite and the statute of limitations like Superman: the mere presence of the qualifier may be enough to take away the statute’s power.