There’s an important psychological benefits case pending in the Fourth Circuit. The scope of the case–called Ceres Marine Terminals, Inc. v. Director, OWCP–is amazingly broad. And although it is a Longshore and Harbor Workers’ Compensation Act case, the ripple effect could cause considerable waves for defense contractors with psychological injuries.
There are multiple issues in Ceres Marine–too many to address in a single blog post. For now, I am focusing on each party’s statements about psychological injuries under the Longshore Act, and by extension the Defense Base Act.
First, let’s look at the written submissions from the parties. I’ve highlighted in bold some of the more interesting statements and phrases.
Here is the Summary of the Argument section from Ceres Marine’s Opening Brief:
This appeal has two primary issues. First, does the reasoning of the United States Supreme Court decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) apply equally to the Longshore Act? That is, as a mere bystander who was under no threat of physical harm, the United States Supreme Court case law, as well as the 5th Circuit case law, is clear a stress injury is not compensable, because such claims could be infinite in number and are speculative. Petitioner would respectfully submit that same reasoning, so limiting claims for railroad workers, applies equally to longshoremen.
While the Judge and Review Board Benefit relied upon the fact FELA is a negligence-based workers’ compensation statute, the Petitioner would note that the Supreme Court’s decision had nothing to do with the negligence standard (duty to provide a safe workplace), but rather the Supreme Court’s concern was with the potential for unlimited and speculative psychiatric claims by bystanders. Those concerns are no different under the Longshore Act, and indeed, the Court of Appeals for the Fifth Circuit has applied Consolidated Rail Corp. to Longshore Act claims and maritime claims. Indeed, it is hard to even grasp the idea that witnessing (or causing) an injury to another, can be an injury to the person who saw or caused the injury.
The second issues relates to the United States Department of Labor selection of Board certified psychiatrist Dr. Mansheim as the DOL IME, pursuant to section 7(e) of the Longshore Act, to examine and evaluate the Claimant. 33 U.S.C. § 907(e). … The Administrative Law Judge ignored the legislative history that the section 7(e) IME’s opinion, as an independent evaluator chosen by the United States Department of Labor, should be given dispositive weight. The Judge also clearly erred in not at least giving Dr. Mansheim’s opinion extra weight as the independent section 7(e) examiner selected by the United States Department of Labor, unlike a treating doctor who is normal selected by Claimant’s counsel, and who wants to please his patient and have his bills paid.
Finally, the Judge failed to comply with the Administrative Procedure Act, in that the Judge failed to discuss and consider key evidence, and engaging in speculation as the basis for rejecting Dr. Mansheim’s opinion. The Judge criticized Dr. Mansheim for using a standardized psychological test, when the Claimant did not even question the appropriateness of the test. The Judge also failed to discuss contradictions in the Claimant’s testimony and evidence contrary to a PTSD diagnosis, e.g. the Claimant had no problem discussing the accident, and the Claimant became worse with the and treatment, not better.
The Claimant, Samuel P. Jackson, summarized the arguments like this:
Samuel Paul Jackson sustained the compensable injury of post traumatic stress disorder when [he] was directly involved in a gruesome and horrific accident on the waterfront at the ship loading and unloading terminal in Portsmouth, Virginia on March 28, 2011.
Norbert I. Newfield, Ph.D., and Deborah Georgie-Guarnieri, M.D., are treating, healthcare providers whose medical opinions are entitled to great weight. The absurd medical opinion of the non-treating physician, Paul Mansheim, M.D., is to be given no weight. Paul Mansheim, M.D., was not a treating physician; and Dr. Mansheim’s medical conclusion is wrong. Dr. Mansheim met with Samuel Paul Jackson for a one-time evaluation only. Dr. Mansheim’s own objective test results that were graded by an objective testing company outside of the office of Dr. Mansheim revealed Samuel Paul Jackson suffered from post traumatic stress disorder; yet, Dr. Mansheim erroneously wrote a medical opinion stating that Samuel Paul Jackson did not suffer from post traumatic stress disorder.
The Zone of Danger Test is not applicable to workers’ compensation as codified under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Section 901, et. seq. The Zone of Danger Test is a negligence related test. Negligence is unrelated to workers’ compensation and compensability under the Longshore and Harbor Workers’ Compensation Act, supra. In any event, Samuel Paul Jackson, was directly involved in the gruesome and horrific accident of March 28, 2011 as Samuel Paul JAckson was the driver of the fork lift machine which fork lift was directly involved in the accident of March 28, 2011. The Zone of Danger Test is not applicable to workers’ compensation compensability under the Longshore and Harbor Workers’ Compensation Act, supra.
The Director’s Brief, filed by the Solicitor of Labor, provides this Summary of the Argument:
It is well-established that psychological injuries, with or without actual or threatened underlying physical harm, are compensable under the Longshore Act. This Court must reject employer’s attempt to graft on Congress’ statutory scheme the common law and negligence-based requirement of actual or threatened underlying physical harm, the so-called “zone of danger” test. Employer’s reliance on Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), which adopted the zone of danger test under the Federal Employers’ Liability Act (FELA), is unavailing because a FELA action is based on the common-law concepts of negligence and damages, unlike the Longshore Act which is a workers’ compensation statute. In addition, the common law policy reasons for adopting the zone of danger test simply do not apply in the Longshore context. Finally the few Longshore and maritime cases that apply the zone of danger test do so because they involve negligence and tort actions as well.
The Court should also reject employer’s argument that an independent medical examiner’s opinion must be afforded dispositive, or special, weight, regardless of its underlying merit. Neither the Act’s statutory text, nor its legislative history, compels such a result. Rather, the independent medical examiner’s opinion must face the same scrutiny given all other medical opinions: an examination of the logic of the physician’s conclusions and an evaluation of the evidence upon which those conclusions are based in light of the other evidence of record.
The oral argument is illuminating. It shows the problem that employers and carriers have with psychological claims. And if you think that Ceres Marine Terminals is just a Longshore claim, notice how it took less than 5 minutes for the oral argument to weave its way to PTSD claims under the Defense Base Act.
This is what Ceres Marine Terminal’s lawyer had to say about psychological injuries:
- Most of our [Longshore] cases are half-million, million-dollar cases, particularly PTSD cases. (At 04:43 – 05:09.)
- There are a lot of PTSD cases under the Defense Base Act. Id.
- Almost all of the PTSD cases under the Defense Base Act are worth over a million dollars. Id.
- Psychiatrists would diagnose everyone in the courtroom with something. (At 09:28-09:56.)
- He is admittedly dismissive of the PTSD diagnosis. Id.
- Psychiatrists can give a label to anything. All you have to do is tell the psychiatrist you are depressed and they’ve got a term for it. And there’s no x-ray, there’s no way to test it. (At 36:00-36:17.)
- But, the attorney also said that psychiatrists use psychological testing–which contradicts the diagnostic testing concerns raised 4 minutes earlier. (At 40:29-40:34.)
Needless to say, Ceres Marine’s argument demonstrates the level of contempt that many employers and carriers have towards mental health injuries. They can’t see it or touch it, so the injured worker must be faking. And that is the crux of the problem with psychological claims, isn’t it? Some employers and carriers–the entities which are supposed to pay benefits in a timely manner–are unable to accept that mental health problems are real, debilitating, and deeply personal.
PTSD Is Real. Just Ask the Experts:
But guess what? PTSD is real no matter whether an employer or insurance carrier are willing to accept it as a genuine diagnosis. Don’t take my word for it. Just ask the American Psychiatric Association.
Every so often, the American Psychiatric Association updates its manual for diagnosing mental health disorders. The most recent manual, called the DSM-5, provides the criteria for the events that can lead to PTSD. A full list of the criteria can be found here. For this post, however, I want to highlight the exposure events that can lead to PTSD, which include:
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
- Directly experiencing the traumatic event(s).
- Witnessing, in person, the event(s) as it occurred to others.
- Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of family member or friend the event(s) must have been violent or accidental.
- Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
Now, compare this criteria to one of the opening statements in Ceres Marine’s brief: “Indeed, it is hard to even grasp the idea that witnessing (or causing) an injury to another, can be an injury to the person who saw or caused the injury.” Based on the DSM-5, it seems that the experts have no problem with the fact that witnessing a threatened or injurious event can lead to a PTSD injury. If it is easy for the experts to grasp, then it should be easy for the liable employers and carriers to grasp, too. PTSD exists whether an employer or carrier “believes” in it.
PTSD Claims Are Not Speculative and Infinite:
Finally, let’s consider the employer’s argument that psychological claims “could be infinite in number and are speculative.” At the oral argument, the Solicitor did a great job shutting down that bold–and completely inaccurate–statement. There hasn’t been a “run on the bank” for psychological claims, thus there is no data that supports employer’s argument.
In fact, it is more likely that psychological claims are under-reported, at least with respect to defense contractors. The Rand Corporation published a study called Out of the Shadows: The Health and Well-Being of Private Contractors Working in Conflict Environments which indicates that only a fraction of PTSD-afflicted employees ever file a claim:
- 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.
Ceres Marine Terminals is an important case and I am only scratching the surface. More will follow.
(And just to be clear, there are some employers and carriers out there that do believe in the existence of PTSD. They aren’t dismissive.)