It’s time for an important discussion about the statute of limitations for psychological injury claims. Quite simply, psychological injuries (including but not limited to PTSD) stemming from war zone work are classified as occupational diseases. They are given a two-year statute of limitations.
Below, I present a survey of sorts. You will find the statutory language as well as language from multiple Office of Administrative Law Judges decisions which conclude that PTSD is an occupational disease.
Section 13—The Statute of Limitations:
The statute of limitations for Defense Base Act claims is the same as it is for Longshore claims. For nearly all injuries (with the exception being hearing loss), the statute of limitations is found at Section 13 of the Longshore Act. It states:
(a) Time to file. Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefore is filed within one year after the injury or death. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or death occurred. The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.
(b) Failure to file.
(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 . . .
33 U.S.C. § 913 (1984) (emphasis added). In short, a traumatic injury has a one-year statute of limitations, whereas an occupational disease has a two-year limitations period. Id. Carriers want to use a one-year statute of limitations to try and limit the time within which an injured worker may file a claim.
Requirements of the Occupational Disease Classification:
Modern courts and most parties to DBA claims presently classify a psychological injury as an occupational disease when multiple war events lead to the gradual onset of psychological symptoms.
The Longshore Act does not define an occupational disease. Still, “[t]he generally accepted definition . . . is ‘any disease arising out of exposure to harmful conditions of the employment when those conditions are present in a peculiar or increased degree by comparison with employment generally’” Gencarelle v. Gen. Dynamics Corp., 892 F.2d 173, 176 (2d Cir. 1989) (quoting 1B A. Larson, The Law of Workmen’s Comp., § 41.00, at 7-353 (1987 & Supp. 1988)). Three elements must be shown for a finding that an employee suffers from an occupational disease: (1) the employee must suffer from a “disease,” (2) “hazardous conditions” of employment must be the cause of the disease, and (3) the hazardous conditions must be “peculiar to” the employee’s employment rather than to other employment generally. Gencarelle, 892 F.3d at 176-77.
So, courts look for a disease, hazardous conditions, and peculiarity. And they apply this framework to all psychological injury claims.
The Office of Administrative Law Judges’ Treatment of Psychological Injuries:
I recently had the occasion to review and analyze many of the psychological injury classification decisions from the Office of Administrative Law Judges. Some of those decisions are addressed below.
- R.D. v. Dyncorp Technical Services:
For what may be the first thoughtful analysis by the OALJ about the proper classification of psychological injuries, look to R.D. [Donohue] v. Dyncorp Technical Servs., 2008-LDA-00174, 6-8 (OALJ Nov. 12, 2008). There, Judge Larry Price addressed each of the three criteria of the injured worker’s PTSD. Judge Price found that the claimant’s PTSD was a “disease that presents a serious derangement of mental health.” Since the Vietnam War, PTSD has been recognized as a mental disorder plaguing “many soldiers who had been subject to the atrocities of war.” The American Medical Association’s Diagnostic and Statistical Manual of Mental Disorders added PTSD as a diagnosis in 1980.
PTSD is, in fact, a “disease”. And in R.D., it was caused by the “hazardous conditions” of the injured worker’s employment. The R.D. court chose not to apply a “limited view of what qualifies as ‘hazardous conditions’ for purposes of an occupational disease.” While harmful substances like asbestos, coal dust, and radiation have been used as examples of hazardous conditions, so too has carpal tunnel syndrome been held to be an occupational disease even when there was no exposure to a substance. As such, in R.D., the events that qualified as the “hazardous conditions” should come as no surprise:
In this case, Claimant’s PTSD meets the second requirement for a finding that the injury is an occupational disease. Claimant lived and worked in a war zone. While in Iraq, Claimant was exposed to explosions and gunfire daily and witnessed the deaths of others. The conditions and environment placed Claimant’s life under a constant threat of attack. There is little doubt that the conditions and experiences Claimant testified to qualify as external conditions directly causing his PTSD.
As for the last element–peculiarity–an injured worker must “be exposed to hazards greater than those in ordinary living, and the disease must arise from one of these [hazards].” To determine peculiarity, compare the hazards of the claimant’s employment with employment generally. The hazard does not need to be exclusive to one’s employment; just distinct. For the R.D. claimant, working as a police officer in Mississippi was different that working in a war zone:
Under the facts of this case, the hazardous conditions Claimant was exposed to while working in a war zone are far more dangerous than any conditions Claimant was exposed to while working as a police officer in Vicksburg, Mississippi. The dangers present in Iraq, such as daily explosions and gunfire, are not common in other workplaces, no matter what the job. Although Claimant was exposed to dangerous conditions as a police officer, the hazardous conditions associated with working in a war zone can easily be said to be “peculiar to” Claimant’s employment. Furthermore, Claimant’s PTSD was the direct result of working in these uncommon hazardous conditions.
In short, the R.D. claimant’s PTSD was an occupational disease…which should come as no surprise.
- Kovacs v. MPRI, Inc.
Next, look at Kovacs v. MPRI, Inc., 2010-LDA-00047, 12-16 (OALJ Jun. 10, 2010). There, Judge Gerald Etchingham also concluded that the claimant’s gradual-onset PTSD was an occupational disease. Working through the same analysis as required by all occupational disease claims, Judge Etchingham first determined that PTSD was a “disease.” The term “disease” in “the workers’ compensation context has been construed as more inclusive than in other contexts.” It includes any serious derangement of health. In this context, the injured worker’s PTSD was a “disease.” His worsening symptoms included sleep disturbance, suicidal ideation, antisocial behavior, depression, hypervigilance, crying spells, decreased libido, and thoughts of harming animals. Testimony and medical records demonstrated the negative effects of the claimant’s PTSD on his overall mental and psychological state. Consequently, PTSD is indeed a “disease.”
Further, the claimant was exposed to harmful conditions during his work. Those conditions included “insurgent mortar and rocket attacks on Camp Echo–along with his bearing witness to the destruction and death associated with such attacks . . . .” Mortar and rocket attacks counted as “harmful conditions” as envisioned by the Act.
Next, the mortar and rocket attacks were peculiar to the injured worker’s job in Iraq. Keeping in mind that the peculiarity requirement only requires distinction, not exclusivity, Judge Etchingham determined that the injured worker satisfied the peculiarity requirement:
Employer directs me to no case law supporting an argument that experiencing mortar and rocket fire is an activity encountered in “employment generally.” I therefore find the mortar and rocket fire experienced by Claimant while working for employer was peculiar to his employment as a police trainer in Iraq . . . and that Claimant meets the third occupational disease requirement.
Finally, Judge Etchingham noted yet another factor that suggested the injured worker’s PTSD should be considered an occupational disease: the PTSD came on gradually. The court was not impressed with the Employer’s attempts to transform experiencing a single symptom of PTSD into experiencing full blown PTSD. In fact, the injured worker did not experience other symptoms of PTSD until after he returned to the United States. As such, the court determined that the gradual worsening of the injured worker’s mental health to the point that he developed PTSD supported the occupational disease classification.
- Cross v. IAP Worldwide Services, Inc.:
In Cross v. IAP Worldwide Servs., 2010-LDA-00319, 2010-LDA-00320, 10-12 (OALJ Dec. 6, 2011), Judge Price again addressed the occupational disease nature of PTSD. One issue that may trip up employers and carriers when analyzing the appropriate classification of PTSD as a traumatic injury versus an occupational disease is the use of the word “traumatic” in the name of the diagnosis. Judge Price dispelled this misunderstanding:
I first note that it was not one “traumatic” event that caused Claimant’s alleged PTSD but the continued exposure to the brutalities of war. Though Claimant reported injuries stemming from an enemy attack on March 20, 2005, he was under continued exposure to the brutalities of war during his time working for Employer. Claimant’s exposure did not cease until he returned to the U.S. in August 2005.
From there, the court dove into the same analysis it performed in the R.D. case. And rightfully so. Perhaps most impressive in the analysis is the court’s discussion of the injured worker’s hazardous exposures:
In this case, Claimant’s alleged PTSD meets the second requirement for a finding that the injury is an occupational disease. Claimant lived and worked in a war zone. While in Iraq, Claimant was exposed to explosions and gunfire on a regular basis. Claimant testified that after the March 2005 attack, every night that he went out the gate, “something probably happened … if it did not happen to you, it happened three trucks down where he might have a bullet through the door or the cab of the truck.” Claimant knew the enemy was shooting as his convoy on every mission and he saw potential roadside bombs every day. As late as July 2005, an explosion caused a large piece of metal to crash through his truck.
The conditions and environment placed Claimant’s life under a constant threat of attack. There is little doubt that the conditions and experiences Claimant testified to qualify as external conditions that could directly cause his alleged PTSD.
Finally, the court agreed that the exposures which the claimant experienced in Iraq were peculiar to his Iraq employment. Sometimes, DBA carriers take the position that a claimant performing a job with a similar job title in a war zone is the same as performing that job in the United States. For instance, a cop is a cop no matter location was the argument in R.D. and Kovacs. In Cross, the argument was that a truck driver is a truck driver no matter location. Judge Price disagreed:
Under the facts of this case, the hazardous conditions Claimant was exposed to while working in a war zone are far more dangerous than any conditions Claimant was exposed to while working as a stateside truck driver. The dangers present in Iraq, such as daily explosions and gunfire, are not common in other workplaces, no matter what the job. The hazardous conditions associated with working in a war zone can easily be said to be “peculiar to” Claimant’s employment.
- Zielinski v. Triple Canopy:
Next up is Zielinski v. Triple Canopy, 2012-LDA-00270, 27 (OALJ Jun. 27, 2013). There, Judge Kenneth Krantz reasoned that the claimant’s PTSD was an occupational disease. As a result of his employment:
Claimant was repeatedly subjected to dangerous and disturbing situations as a function of his employment. Claimant testified regarding his camps frequently taking income mortars. He faced threats from an angry civilian populace. In addition, Claimant observed coworkers die. . . . Based on a review of the testimony and the medical opinion, I find that Claimant’s PTSD arose out of his employment.
Further, the dangers that the claimant experienced–“incoming mortars and threats from an angry civilian populace”–are peculiar to overseas work. These are not the types of dangers that one faces in a “typical work environment.” All things considered, Claimant’s PTSD is an occupational disease.
- Abdelmeged v. Global Linguist Solutions LLC:
As time progressed, it became easier for judges to determine that an injured worker sustained an occupational disease injury. In Abdelmeged v. Global Linguist Solutions LLC, 2012-LDA-00654 (OALJ Mar. 19 2014), Judge Jonathan Calianos wrote:
[Claimant] was exposed to hazardous conditions associated with working in a war zone, including daily explosions and gunfire and a constant threat of attack. Such hazardous conditions are peculiar to [Claimant’s] work as a linguist in Iraq, and as a result of these unique dangers, [Claimant] alleges a psychological impairment. Further, [Claimant] experienced a gradual, rather than sudden onset of his psychological condition, based on cumulative exposures to warzone conditions.
Perhaps the reason why the analysis became easier is because Global Linguist Solutions and Zurich agreed on the occupational disease classification. As noted by the Benefits Review Board, the Abdelmeged parties agreed, “and the administrative law judge found, that claimant’s psychological condition is an occupational disease.” See Abdelmeged v. Global Linguist Solutions, L.L.C., 2015 WL 1802721, *9 n.17 (Ben. Rev. Bd. Mar. 27, 2015) (vacating and remanding to determine onset date of claimant’s disability, but not upsetting the occupational disease classification.) Judge Calianos’ Decision and Order on Remand is available on the OALJ’s website.
- Shino v. Global Linguist Solutions:
The parties also came to an agreement regarding the disability classification in Shino v. Global Linguist Solutions, 2014-LDA-00228, 2014-LDA-00229, 16 (OALJ May 7, 2015). Judge Steven Berlin wrote, “[Global Linguist Solutions/Zurich American Insurance Company] does not dispute that Claimant’s psychological condition is an occupational illness (not a traumatic injury), and I find that it is.” The harmful events which led to the claimant’s occupational disease classification included exposure to videos of beheadings, being shelled, and having to see dead bodies after attacks. Those hazardous conditions “were inherent and peculiar to employment in a war zone.”
Conclusion:
The cases appear to be moving in the same direction. Courts recognize that psychological injuries brought on by the cumulative exposure to war hazards are best classified as an occupational disease. The psychological injury is, indeed, a “disease.” The rockets, mortars, attacks, etc., are “hazardous conditions”. Further, the hazardous conditions are peculiar to war zone employment. Putting it all together, psychological injuries are occupational diseases that are entitled to a two-year statute of limitations.
