With so many contractors in danger from Iranian attacks, it is time again to consider psychological injuries under the Defense Base Act.
It does not matter if the injury occurs at a remote military base halfway across the world or one of the largest airfields in an ally country, psychological injuries are covered. The Defense Base Act (or DBA) pulls most of its laws from the Longshore and Harbor Workers’ Compensation Act. That means most of the same laws that apply in a longshore, shipbuilding, or ship repair setting also apply to employees of military contractors.
Moreover, it does not matter if the injured employee is a citizen of the United States. Although there are some pragmatic differences in the way U.S. and foreign national employees are treated–differences that are best discussed in a phone call–the law applies to foreign national employees equally for the most part.
The Statutory Foundation for Injuries
The starting point for any psychological claim is the statutory definition of “injury.” The LHWCA defines injury broadly as an “accidental injury or death arising out of and in the course of employment,” including occupational diseases that naturally arise from employment.
This language does not limit recovery to physical harm. Over time, courts and the Benefits Review Board (BRB) have consistently interpreted “injury” to encompass psychological conditions—provided the claimant can establish the required causal connection to employment.
This is where psychological claims diverge from more traditional orthopedic injuries: the harm is often intangible, the onset may be gradual, and the causal chain may be contested.
Establishing a Psychological Injury: The Prima Facie Case
In both LHWCA and DBA claims, psychological injuries follow the same fundamental framework as physical injuries. A claimant must establish:
- A harm (e.g., PTSD, anxiety disorder, depression), and
- Working conditions that could have caused that harm.
The burden at this stage is intentionally low. As the BRB has emphasized, a claimant need only produce “some evidence” of both elements to establish a prima facie case and invoke the Section 20(a) presumption.
Consider a DBA claimant stationed in a combat zone. Evidence of rocket attacks combined with adverse symptomolgy is typically sufficient to cross this threshold. Once met, the law presumes the psychological injury is work-related.
What is the Section 20(a) Presumption?
Once a claimant makes a prima facie claim, Section 20(a) of the LHWCA provides a presumption that the claimant’s employment caused his injury. Once a claimant invokes the presumption, the burden of production shifts to the employer to rebut the presumed causal relationship.
For example, in a DBA case involving exposure to frequent terrorist attacks, the Board held that the claimant’s testimony and medical evidence were sufficient to invoke the presumption—even where the administrative law judge initially–and in my opinion incorrectly–discounted credibility. The BRB emphasized that weighing evidence and assessing credibility is improper at the invocation stage.
Employer Rebuttal and the Battle Over Causation
Once the presumption is invoked, the employer must produce substantial evidence that the psychological condition is not related to employment.
In my opinion, the substantial evidence rebuttal standard has been watered down over time, allowing weak evidence to rebut the presumption. At least, in some circuits. Generally, however, the employer must present evidence that severs the causal link.
If the employer successfully rebuts the presumption, the case proceeds to a full weighing of the evidence, where the claimant bears the ultimate burden of persuasion. At the weighing stage, the judge may consider credibility.
Psychological Injuries in the DBA Context
Psychological claims are particularly prominent under the DBA, which extends LHWCA coverage to civilian contractors working overseas, often in war zones. Sometimes, the psychological injury is Post Traumatic Stress Disorder. Notably, however, PTSD is not a legal requirement for DBA benefits. The term “injury,” as defined in Section 2(2) of the LHWCA, does not require a specific diagnosis.
Still, in DBA claims, we often litigate claims arising from:
- Exposure to combat or terrorist attacks;
- Living under constant threat of harm; or
- Witnessing injury or death to others.
The evidentiary record in such cases often includes attack logs, military reports, and testimony regarding base conditions—demonstrating that the working environment itself was inherently traumatic.
As reflected in BRB decisions, repeated exposure to such conditions can readily satisfy the “working conditions” element necessary to invoke the presumption.
So, too, with the new Iran Conflict. All contractors subjected to attacks can satisfy the “working conditions” element of their prima facie claim.
Compensation and Medical Benefits
Once a psychological injury is established as work-related, the claimant is entitled to the same categories of benefits as with physical injuries:
- Medical benefits paid pursuant to Section 7 of the LHWCA;
- Compensation benefits paid pursuant to Section 8 of the LHWCA; and
- (If applicable) death benefits paid pursuant to Section 9 of the LHWCA.
Notably, the definition of “disability” under the LHWCA focuses on wage-earning capacity, not merely diagnosis. Thus, even a purely psychological condition may support a finding of total disability if it prevents the claimant from returning to suitable employment. If you are a contractor, just ask yourself whether the condition or medication keeps you from deploying. As of the time of this publication, MOD 18 is the Department of Defense’s most recent publication for CENTCOM fitness standards. Tab A to MOD 18 includes a list of nondeployable medical conditions and medications.
Conclusion
Whether an employee sustained a work-related psychological injury and resulting disability is often a fact intensive inquiry. Do yourself a favor and contact a knowledgable claimant’s attorney to determine whether you Defense Base Act benefits are available after being subjected to attacks by Iran. Feel free to contact our office for a consultation:
Jon Robinson: [email protected]
Brent Bartholomew: [email protected]
Aubrey Baudean: [email protected]
Beth Bernstein: [email protected]
Garrett Dahm: [email protected]
