Prior posts at the Longshore & DBA Review have addressed common psychiatric diagnoses that are litigated in Defense Base Act claims. Today I am going to talk about “secondary” psychological injuries that are also covered under the Longshore and Defense Base Acts.
A “secondary” injury is one that arises naturally or unavoidably from an initial “primary” injury. Typically, “secondary” injuries arise in altered gait cases. For example, an employee injures their ankle. While treating for the ankle injury, they walk with an altered gait. The altered gait could lead to problems with the other ankle, or the hips, back, or knees. So long as the “secondary” injury (to the other ankle, hips, back, or knees) is the natural or unavoidable consequence of the first ankle injury, then the “secondary” injury is covered too.
The same is true about psychological injuries. “Secondary” injuries are not restricted to physical problems. As such, if a “primary” physical injury naturally or unavoidable leads to a “secondary” psychological injury, then the psychological injury is covered.
“War-Risk Hazard” Injuries:
Employers and carriers might find this brand of psychological injury problematic because of the War Hazards Compensation Act (“WHCA”). When I am approached about the genesis of a work-related injury to an overseas defense contractor, I consider whether the injury was caused by a “war-risk hazard.” Essentially, in its most common form, a “war-risk hazard” is a terrorist attack. A less common type of “war-risk hazard” involves aircraft or vessel mishaps. If the “primary” injury was caused by a “war-risk hazard,” then the WHCA applies; if not, then the WHCA does not apply.
But what about a “secondary” psychological injury? What if a “war-risk hazard” caused a back injury, but the natural or unavoidable psychological condition stemming from that back injury did not arise until months after the contractor’s return to the home of record? Should the psychological condition arising secondarily to the back injury also be classified as a “war-risk hazard” injury?
In my opinion, any injury that is “secondary” to a “war-risk hazard” injury should also receive the “war-risk hazard” tag. That is, the psychological injury, no matter when it arose after the original “war-risk hazard” back injury should qualify for WHCA coverage. After all, if it weren’t for the “war-risk hazard,” neither the back injury nor the psychological injury would have arisen. Support for my position can be found in the Code of Federal Regulations, which defines “injury” as any “injury resulting from a war-risk hazard, as defined in this section, whether or not such injury occurred in the course of the person’s employment, and includes any disease proximately resulting from a war-risk hazard.” See 20 C.F.R. § 61.4(j).
Blended “War-Risk Hazard” and “DBA-Only” Injuries:
Another problem that could arise in secondary psychological injury claims occurs in cases where there are both “war-risk hazard” and “DBA-only” injuries. By “DBA-only” I mean that there was not a “war-risk hazard” component to the injury.
A blend could arise in a situation where there is delayed expression PTSD. Imagine a contractor who, while working overseas, was exposed to combat-related events. Then, one day, he trips and falls while walking down icy stairs and severely injures his ankle. His ankle injury is a “DBA-only” injury. The contractor returns home for treatment and, after six months outside of the combat zone, he experiences full-blown PTSD. The contractor is diagnosed with a disabling psychological condition. Now what?
In this situation, common sense dictates that the insurance carrier would rather the disabling psychological condition be delayed expression PTSD than a psychological injury “secondary” to the “DBA-only” ankle injury. If the psychological injury is PTSD relating to the defense contractor’s combat exposures, then the WHCA applies and the carrier will be reimbursed for all amounts paid for indemnity and medical benefits owed to the injured worker as a result of his PTSD. But, if the psychological condition is “secondary” to the serious ankle injury, which is “DBA-only,” then the WHCA does not apply and the carrier will not receive any reimbursement at all. This distinction is huge because hundreds of thousands of dollars are on the line.
Conclusion:
“Secondary” psychological injuries can be covered under the Longshore and Defense Base Act. If the psychological disorder is “secondary” to a “primary” Longshore or DBA injury, then the psychological disorder will be covered. An injured worker will have to show that the disorder is the natural or unavoidable consequence of the “primary” injury. As for the WHCA, “secondary” psychological disorders will likely take on the “war-risk hazard” classification given to the “primary” injury. Consequently, insurance carriers will have to carefully evaluate whether the disorder is “secondary” to a “DBA-only” injury, or if the disorder is a “primary” “war-risk hazard” injury in its own right.
Invitation:
If you were injured while working overseas for a defense contracting company, then contact Jon Robinson at Strongpoint Law Firm for help with your Defense Base Act claim. You might be entitled to significant benefits.
