NOTICE TO EMPLOYERS, INSURANCE CARRIERS, SELF-INSURED EMPLOYERS UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT, AND OTHER INTERESTED PERSONS
SUBJECT: Defense Base Act Coverage for U.S. Government Contractors Working in Puerto Rico
In the aftermath of the devastation caused by Hurricanes Irma and Maria in Puerto Rico in September of 2017, various agencies of the United States have utilized the services of private contractors to provide humanitarian and other assistance as part of the global relief effort there. The Defense Base Act (DBA) requires private contractors performing work under a U.S. government contract to purchase DBA insurance to cover their employees working in Puerto Rico.
The DBA, an extension of the Longshore and Harbor Workers’ Compensation Act, applies to injuries incurred by workers in Puerto Rico working under a contract with the U.S. government, see Section 1, 42 U.S.C. § 1651(a)(1-6).
Federal agency contracting personnel should include contract provisions requiring private contractors to secure DBA insurance from a carrier authorized by the U.S. Department of Labor. Because the DBA applies to all employees of government contractors, DBA insurance must be in place before workers are deployed to Puerto Rico or work is performed in Puerto Rico. The DBA applies to U.S. workers, local workers, and foreign national workers.
When DBA insurance is properly secured, the DBA provides the exclusive remedy for these workers who sustain an injury, an illness, or are killed. The DBA is administered by the United States Department of Labor, Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC). OWCP/DLHWC authorizes insurance carriers to write DBA policies and employers to self-insure for DBA. See a list of those insurance carriers which are currently authorized to write DBA coverage.
There’s exciting new science about blast injuries in war zones – but of course, even as the military begins confronting it, the contractors with Defense Base Act claims get dumped into a civilian health care market that has no idea what they’re looking at, diagnosed with PTSD, and told to deal with it.
By ROBERT F. WORTH, New York Times
JUNE 10, 2016
In early 2012, a neuropathologist named Daniel Perl was examining a slide of human brain tissue when he saw something odd and unfamiliar in the wormlike squiggles and folds. It looked like brown dust; a distinctive pattern of tiny scars. Perl was intrigued. At 69, he had examined 20,000 brains over a four-decade career, focusing mostly on Alzheimer’s and other degenerative disorders. He had peered through his microscope at countless malformed proteins and twisted axons. He knew as much about the biology of brain disease as just about anyone on earth. But he had never seen anything like this.
The brain under Perl’s microscope belonged to an American soldier who had been five feet away when a suicide bomber detonated his belt of explosives in 2009. The soldier survived the blast, thanks to his body armor, but died two years later of an apparent drug overdose after suffering symptoms that have become the hallmark of the recent wars in Iraq and Afghanistan: memory loss, cognitive problems, inability to sleep and profound, often suicidal depression. Nearly 350,000 service members have been given a diagnosis of traumatic brain injury over the past 15 years, many of them from blast exposure. The real number is likely to be much higher, because so many who have enlisted are too proud to report a wound that remains invisible.
Daniel Perl is continuing to examine the brains of blast-injured soldiers. After five years of working with the military, he feels sure… that many blast injuries have not been identified. “We could be talking many thousands,” he said. “And what scares me is that what we’re seeing now might just be the first round. If they survive the initial injuries, many of them may develop C.T.E. years or decades later.”
For years, many scientists have assumed that explosive blasts affect the brain in much the same way as concussions from football or car accidents. Perl himself was a leading researcher on chronic traumatic encephalopathy, or C.T.E., which has caused dementia in N.F.L. players. Several veterans who died after suffering blast wounds have in fact developed C.T.E. But those veterans had other, nonblast injuries too. No one had done a systematic post-mortem study of blast-injured troops. That was exactly what the Pentagon asked Perl to do in 2010, offering him access to the brains they had gathered for research. It was a rare opportunity, and Perl left his post as director of neuropathology at the medical school at Mount Sinai to come to Washington.
Perl and his lab colleagues recognized that the injury that they were looking at was nothing like concussion. The hallmark of C.T.E. is an abnormal protein called tau, which builds up, usually over years, throughout the cerebral cortex but especially in the temporal lobes, visible across the stained tissue like brown mold. What they found in these traumatic-brain-injury cases was totally different: a dustlike scarring, often at the border between gray matter (where synapses reside) and the white matter that interconnects it. Over the following months, Perl and his team examined several more brains of service members who died well after their blast exposure, including a highly decorated Special Operations Forces soldier who committed suicide. All of them had the same pattern of scarring in the same places, which appeared to correspond to the brain’s centers for sleep, cognition and other classic brain-injury trouble spots.
Then came an even more surprising discovery. They examined the brains of two veterans who died just days after their blast exposure and found embryonic versions of the same injury, in the same areas, and the development of the injuries seemed to match the time elapsed since the blast event. Perl and his team then compared the damaged brains with those of people who suffered ordinary concussions and others who had drug addictions (which can also cause visible brain changes) and a final group with no injuries at all. No one in these post-mortem control groups had the brown-dust pattern.
Perl’s findings, published in the scientific journal The Lancet Neurology, may represent the key to a medical mystery first glimpsed a century ago in the trenches of World War I. It was first known as shell shock, then combat fatigue and finally PTSD, and in each case, it was almost universally understood as a psychic rather than a physical affliction. Only in the past decade or so did an elite group of neurologists, physicists and senior officers begin pushing back at a military leadership that had long told recruits with these wounds to “deal with it,” fed them pills and sent them back into battle.
If Perl’s discovery is confirmed by other scientists — and if one of blast’s short-term signatures is indeed a pattern of scarring in the brain — then the implications for the military and for society at large could be vast. Much of what has passed for emotional trauma may be reinterpreted, and many veterans may step forward to demand recognition of an injury that cannot be definitively diagnosed until after death. There will be calls for more research, for drug trials, for better helmets and for expanded veteran care. But these palliatives are unlikely to erase the crude message that lurks, unavoidable, behind Perl’s discovery: Modern warfare destroys your brain.
Evidence of post-traumatic stress disorder can be traced back to 1300BC – much earlier than previously thought – say researchers.
The team at Anglia Ruskin University analysed translations from ancient Iraq or Mesopotamia.
Accounts of soldiers being visited by “ghosts they faced in battle” fitted with a modern diagnosis of PTSD.
The condition was likely to be as old as human civilisation, the researchers concluded.
Prof Jamie Hacker Hughes, a former consultant clinical psychologist for the Ministry of Defence, said the first description of PTSD was often accredited to the Greek historian Herodotus.
Referring to the warrior Epizelus during the battle of Marathon in 490BC he wrote: “He suddenly lost sight of both eyes, though nothing had touched him.”
His report co-authored with Dr Walid Abdul-Hamid, Queen Mary College London, argues there are references in the Assyrian Dynasty in Mesopotamia between 1300BC and 609BC.
In that era men spent a year being toughened up by building roads, bridges and other projects, before spending a year at war and then returning to their families for a year before starting the cycle again.
The high incidence of traumatic brain injury (TBI) and PTSD (posttraumatic stress disorder) affecting our returning Afghanistan and Iraq veterans, and also our civilian contractor employees, has helped to highlight the inadequacy of the current level of “brain science.”
More than one in five Americans – – over 60 million people – – suffer brain disorder from injury or illness. 600 conditions exist, ranging from autism and Alzheimer’s to the aforementioned TBI and PTSD. Not a single one of these conditions has been cured. Brain ailments affect more people than heart disease and cancer combined, yet those conditions receive 3 to 5 times more funding for research.
Unlike science for other conditions and diseases, brain science has not had the advantage of an umbrella organization to its coordinate efforts. Brain science research and funding has been fragmented, researchers have often been territorial and overly concerned with intellectual property issues, and the corporate funding that has come mostly from the pharmaceutical industry has been shrinking. An organization named One Mind has recently been created to attack the shortcomings of brain science by advocating for the principle of “open science,” which fosters collaborative scientific work with accessible central data collection for researchers. This process in turn allows for accelerated integration of data and validation of results for publication. All of this should allow basic research to more rapidly reach the clinical setting and benefit patients of brain ailment.
One Mind has two programs currently in progress: Gemini, in which 11 research centers will enroll 3000 patients in a longitudinal brain injury study; and Apollo, which is developing a data exchange portal that will support the collaborative effort described above and will create a digital marketplace accessible by students, teachers and researchers.
One Mind is currently headed by CEO Gen. Pete Chiarelli, U.S. Army (retired) who as vice chief of the Army was instrumental in Department of Defense efforts on PTSD, TBI, and suicide prevention. In 2013 Chiarelli received the “Patriot Award” for his work with soldiers and their families dealing with the so-called “invisible wounds” of war.
The author recently attended a presentation in Seattle by Gen. Chiarelli, who provided much additional anecdotal information about the shortcomings of brain science and the efforts by One Mind. He noted, for example, that the diagnostic criteria currently in use for assessing PTSD are decades old and woefully inadequate for mental health practitioners to accurately diagnose and assess the condition.
Go to www.onemind.org for a full review of the organization, its mission and its programs.
Photo credit: “Central nervous system drawing circa 1900”
Attorney Jon L. Gelman recently wrote in a blog post that a new study associates lung injuries of soldiers with exposure to dust in Iraq and Afghanistan. Mr. Gelman writes:
Soldiers who have been deployed in Iraq and Afghanistan are at greater risk to suffer lung disease according to a recently published study. Dr. Anthony Szema, a professor at Stony Brook University School of Medicine, was the lead investigator and reported the association of lung disease with deployment in Iraq and Afghanistan.
A Federal Court of Appeals has ruled that lawsuits filed by soldiers who were exposed in Iraq and Afghanistan may proceed against military contractors, KBR and Halliburton, from claims by military service members suing over health damage from the contractors’ burn pits. The lawsuits allege that the negligent operation of the burn pits resulted in harmful exposures that caused various illnesses to the soldiers including lung disease, cancers and in some cases death.
“War-related lung injuries have emerged as previously unrecognized health problems. Physicians did not recognize the nature of illness in the beginning of the wars in Iraq and Afghanistan. During the last years of the Iraq War, as well as the ongoing Afghanistan war, new-onset lung problems have been increasingly recognized as being related to deployment in these two countries. Investigators, including our group, have identified asthmatic symptoms or pulmonary function test abnormalities. The Social Security Administration is now compensating for Iraq and Afghanistan war–related lung disease. The Millennium Cohort Study identified 14% of all US soldiers in Iraq with new-onset respiratory symptoms.” – Dr. Anthony Szema
The One Penny Sheet blog shared a November 2009 AFP news post on this topic, describing the lawsuits that may now move forward. The AFP reported, in part:
Dozens of US military personnel have filed 34 lawsuits against US defense contractor KBR for allegedly incinerating toxic waste and releasing it into the atmosphere in Iraq and Afghanistan.
Each of the lawsuits represent several soldiers but were filed on behalf of at least 100,000 others who are alleged to suffer from health problems resulting from exposure to emissions released by the incineration of waste at military bases.
Kellogg Brown and Root and its former parent company Halliburton, which at one time was led by former vice president Dick Cheney, had a government contract to destroy waste at US bases and camps in Iraq and Afghanistan.
One lawsuit filed in federal court in Nashville, Tennessee charged that they “ignored their contractual obligations and burned vast quantities of unsorted waste in enormous open air burn pits with no safety controls.”
“This misconduct began in 2003 and continues unabated to date,” it alleges.
“Every type of waste imaginable was and is burned on these pits, including trucks, tires, lithium battery, Styrofoam, paper, rubber, petroleum-oil-lubricant products, metals, hydraulic fluids, munitions boxes, medical waste, biohazard materials (including human corpses), medical supplies (including those used during smallpox inoculations), paints, solvents, asbestos insulation, items containing pesticides, polyvinyl chloride pipes, animal carcasses, dangerous chemicals and hundreds of thousands of plastic water bottles,” the lawsuit claims.
In a statement posted on its website, KBR said the company posted lists compiled by the US Army of items that could not be disposed of in burn pits. “If KBR observes a waste generator delivering a prohibited item, its practice is to refuse or remove such items,” the company said.
In addition to members of the military, US employees of those companies providing services in Iraq and Afghanistan may have suffered the same exposures and injuries while working overseas. These cases can be covered as workers’ compensation claims under the Defense Base Act. Contact Causey Law Firm to discuss a potential Defense Base Act case in more detail.