I recently fielded an interesting question: for psychological testing, do judges prefer the MMPI-2 or the CAPS test? I don’t think there is a preference. It all goes to the weight of the evidence. From a practical standpoint, I see the MMPI-2 more than the CAPS test. But that is starting to change. With the rising number of providers using the CAPS test, particularly for veterans–many of whom worked as contractors–I think that CAPS is an important tool in PTSD cases. For others who might find the CAPS test interesting, I’ve quoted a webpage from the U.S. Department of Veterans Affairs’ National Center for PTSD: Clinician-Administered PTSD Scale for DSM-5 (CAPS-5) Description The CAPS is the gold standard in PTSD assessment. The CAPS-5 is a 30-item structured interview that can be used to: Make current (past month) diagnosis of PTSD Make lifetime diagnosis of PTSD Assess PTSD symptoms over theRead more
Non-Deployable Medications
Just like there are non-deployable medical conditions, there are also non-deployable medications. Contractors who take these medications may be excluded from working overseas. As such, when determining whether a contractor can return to work overseas after a Defense Base Act injury, the parties must consider the contractor’s medications. Here is the non-exclusive list of medications that disqualify a contractor for deployment, unless a waiver is granted: Blood modifiers. More specifically, therapeutic anticoagulants (like Coumadin and Xarelto); platelet aggregation inhibitors or reducing agents (like Plavix, Agrylin, Pradaxa, Aggrenx, Ticlopidine, Effient, Trental, Pletal); hematopoietics (like Neupogen, Leukine, Epogen and Progrit); and antihemophilics. Antineoplastics (oncologic or non-oncologic use). This includes antimetabolites, alkylators, antiestrogens, aromatose inhibitors, medroxyprogesterone, interferons, etoposide, bicalutamide, bexarotene, and oral tretinoin. Immunosuppressants, like chronic systemic steroids. Biologic response modifiers. This includes Orencia, Humira, Kineret, Enbrel, Remicade, Arava, etc. Benzodiazepaines, whether used chronically or newly prescribed. This includes Ativan, Xanax, Valium, Klonopin,Read more
Fourth Circuit Case Tests Coverage for Psych Injuries
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. The Briefs: 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.Read more
9th Circuit Addresses Attorney Rates in Longshore Claims
Last week, the Ninth Circuit issued a new attorney fee decision that is sure to have a ripple effect throughout the Longshore and Defense Base Act community. It’s so important that I might have to amend my Year in Review post. The decision is Shirrod v. Director, OWCP. Attorney’s Fees Under the Longshore Act: Attorney’s fees are controlled by Section 28 of the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C. § 928 (1984). If an employer and carrier denies liability for indemnity or medical benefits, and they are subsequently found liable, then they must pay fees. It should come as no surprise that parties often debate the amount owed in attorney’s fees. According to Section 28(a), fees must be “reasonable.” Reasonableness starts with an equation called the “lodestar method.” The equation seems simple enough: multiply a reasonable hourly rate by the number of hours reasonably expended on aRead more
Longshore and Defense Base Act Developments of 2015
It’s time to look back at some of the Longshore and Defense Base Act developments of 2015. Zone of Special Danger: My favorite case this year was the First Circuit’s Battelle Memorial Institute v. DiCecca. In DiCecca, retired Supreme Court Associate Justice David Souter explored the broad scope of the zone of special danger doctrine. Essentially, in Defense Base Act cases, the zone of special danger doctrine can be used by injured workers to secure coverage for injuries that occur outside of the course and scope of typical work duties. Like the Supreme Court said in O’Leary v. Brown-Pacific-Maxon, 430 U.S. 504, 507 (1951): Workmen’s compensation is not confined by common-law conceptions of scope of employment. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time ofRead more
Employer Denied Section 8(f) Relief Based on Sufficiency of Report
The Longshore and Harbor Workers’ Compensation Act contains a provision whereby employers and carriers can secure economic relief for the future benefits owed to an injured worker. But there are specific requirements to obtain the relief. Pursuant to Section 8(f) of the Longshore Act, an employer must show that the employee in question had a preexisting permanent partial disability, which made the employee’s ultimate permanent partial disability “materially and substantially greater than that which would have resulted from the subsequent injury alone.” See 33 U.S.C. § 908(f) (1984). In a new unpublished Second Circuit case, the employer sought Section 8(f) relief for an injured worker who had preexisting asthma. Relief had been denied because the administrative law judge (“ALJ”) found that the employer failed to show how the asthma “materially and substantially” contributed to the injured worker’s subsequent work-related lung injury. Both the Benefits Review Board and the Second CircuitRead more
Defense Base Act Industry Report Cards – Part Three
This is the final installment of my Defense Base Act Industry Report Card series. So far, we have looked at the reporting and payment percentages for ACE, AIG, AWAC, and CNA. Today, I will focus on Zurich, the Division of Longshore and Harbor Workers’ (“DLHWC”) reporting and payment goals, and how the DBA insurance carrier measures up against the DLHWC goals. To recap, the DLHWC creates “report cards” for the large insurance carriers offering Defense Base Act insurance. The DLHWC focuses on timeliness of reporting the injury and timeliness of paying benefits. Each insurance carrier voluntarily provides its reporting and payment percentages to the DLHWC, which publishes the information on its website. My series of posts takes the same information and plugs it into carrier-specific line graphs. In my opinion, the line graphs make it easier to chart each carrier’s performance–and whether performance is declining. Zurich: Overall, Zurich’s self-reported dataRead more
Defense Base Act Industry Report Cards – Part Two
This post continues my Defense Base Act Industry Report Cards series. The first post, which I uploaded last week, can be found here. To recap, the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) creates “report cards” for the large insurance carriers offering Defense Base Act insurance. The DLHWC focuses on timeliness of reporting the injury and timeliness of paying benefits. Personally, I prefer looking at this information in line graph format. As such, I took the report card information on the DLHWC’s website and rendered insurer-specific line graphs. DLHWC shares the following information on its website: The First Report data, aggregated by insurance carrier, shows the percent of reports received in the DLHWC District Offices within 30, 60, and 90 days of the date of the injury or death, or the date of the employer’s knowledge of the injury and the onset of disability, whichever isRead more
Defense Base Act Industry Report Cards – Part One
Each year, the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) creates “report cards” for the insurance carriers offering Defense Base Act insurance. Essentially, the DLHWC looks at two things: Timeliness of DBA First Reports of Injury; and Timeliness of DBA First Payments of Benefits. According to the DLHWC’s website, it adopted particular performance goals under the Government Performance Results Act to improve program effectiveness “by facilitating prompt delivery of benefits to injured workers and their families.” Keep in mind that the goal is “prompt delivery of benefits.” DLHWC shares data reported by the insurance carriers. Specifically, the DLHWC shares: The First Report data, aggregated by insurance carrier, shows the percent of reports received in the DLHWC District Offices within 30, 60, and 90 days of the date of the injury or death, or the date of the employer’s knowledge of the injury and the onset ofRead more
Who Can Diagnose Defense Base Act Medical Conditions?
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-relatedRead more
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