Here’s a (surprisingly) not-so-simple question: who can diagnose medical conditions in Defense Base Act claims? Believe it or not, this question can throw a monkey wrench into the gears of an injured worker’s claim, particularly with psychological disorders. The rub is that, with psychological claims, the problem may actually stem from an unwritten and–as presented below–unwarranted application of law by the Division of Federal Employees Compensation (“DFEC”). Why DFEC? Because DFEC administers the War Hazards Compensation Act, the statutory scheme where the diagnosis logjam occurs most frequently.
Interplay between the Defense Base Act and the War Hazards Compensation Act:
Very generally, the Defense Base Act is a system of federal workers’ compensation that covers military contractors working overseas on military bases. When an employee is hurt, they file a claim for DBA benefits. Employers and insurance carriers are supposed to pay weekly compensation and medical benefits to employees with work-related injuries and disabilities.
Sometimes, the Defense Base Act injury is caused by a “war-risk hazard.” Essentially, a “war-risk hazard” is an action from a terrorist, insurgent, or “hostile force” at war with the United States or its allies. If a war-risk hazard caused the DBA injury, then another statutory scheme–the War Hazards Compensation Act–also applies.
The two schemes are separate, but also inextricably intertwined. Injured and disabled employees are paid indemnity and medical benefits pursuant to the DBA. The employer and carrier that paid the DBA benefits to the injured worker may seek reimbursement of the benefits they paid by applying for War Hazards Compensation Act reimbursement. In other words, benefits are owed under the DBA, and benefits are reimbursed via the War Hazards Compensation Act.
If something goes wrong with the reimbursement process, then a logjam occurs. The problem is ultimately passed on to the injured worker.
Who is a Physician?
Back to the question at hand: who can diagnose medical conditions in Defense Base Act claims? To answer this question, let’s look at 20 C.F.R. 702.404. There, we will find the definition of “physician:”
The term physician includes doctors of medicine (MD), surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. The term includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation shown by X-ray or clinical findings. Physicians defined in this part may interpret their own X-rays. All physicians in these categories are authorized by the Director to render medical care under the Act. Naturopaths, faith healers, and other practitioners of the healing arts which are not listed herein are not included within the term “physician” as used in this part.
Based on this definition, there is no distinction between a primary care physician and a board certified psychiatrist or psychologist. Instead, they all fit under the “physician” umbrella.
Why All the Fuss?
This is actually a big deal. At the end of a claim, the carrier applies for War Hazards reimbursement. The Division of Federal Employees Compensation determines whether the carrier is entitled to reimbursement. When DFEC denies a reimbursement request–sometimes for a sizable sum–on the grounds that the “physician” who diagnosed the psychological disorder was a primary care doctor and not a psychiatrist or psychologist, then DFEC creates a ripple effect. Carriers pass on this unwritten requirement to claimants, saying that primary care doctors cannot diagnose psychological disorders. That is nonsense. In many cases, primary care doctors know more about the injured worker than other medical professionals–especially if the doctor is a longtime family doctor. Who is to say that the primary care doctor doesn’t know how to recognize and diagnose a psychological disorder that is commonly seen in Defense Base Act claims (e.g., PTSD, major depressive disorder, or adjustment disorder)?
The resolution to this problem is simple. DFEC needs to reimburse carriers. Plain and simple. Don’t create new, unwritten, and arbitrary “rules” that affect the carrier’s right to reimbursement because of a “specialist” requirement. DFEC needs to accept the diagnosis given by a “physician,” and not engage in a post-DBA de novo review of medical evidence that rises and falls on board certifications. While it may not have been DFEC’s intention, these problems are ultimately passed on to injured workers.