Injured in Iraq or Afghanistan? Welcome to Defense Base Act claims.

Many civilian workers injured while working in Iraq and Afghanistan are returning home with uncertainty as how to pursue their claims for workers’ compensation benefits.  While not including all civilian, non government, workers in those geographic regions, the bulk of injured workers returning from Iraq or Afghanistan will have claims under the federal Defense Base Act (“DBA”).  While a separate federal law, the DBA incorporates the procedures applicable to Longshore and Harbor Workers’ Compensation Act for processing and resolution of claims. 

 

The DBA provides coverage for those injured while working for a contractor engaged in “public work” overseas which generally includes fixed improvements in conjunction with the national defense or operations under service contracts in connection with national defense, war activities, harbor improvements, dams, roadways, housing and ancillary work in connection therewith.  To be “public work” covered under the DBA the claim must arise from a contract with the United States to perform public work overseas.  Also included are service contracts in conjunction with the performance of such overseas public work.    

 

Accordingly many of the civilian workers employed in Iraq and Afghanistan under contracts to aid the war effort or contracts for “public work” involving construction, alteration, removal or repair of the United States or its allies are covered by the DBA.  There is coverage in conjunction with activities arising out of the scope and course of the performance of the work (e.g. a truck driver carrying war supplies is injured in a collision with another truck) as well as the extended coverage available in the “zone of special danger” for injuries/deaths not necessarily arising out the scope and course of the work.    

 

Under the “zone of special danger” doctrine, coverage is extended to those whose injury did not occur in the normal space and time boundaries of work, but to those who are injured or killed while within an area where the obligations of the employment create a zone of special danger out of which the injury arose.  Included in the “zone of special danger” cases are injuries/deaths in employer sponsored recreational areas, or even further removed injuries/deaths such as an employee injured or killed while on a weekend outing (the employee had to work “under the exacting and dangerous conditions” of the area and thus was covered).  Also covered in the “zone of special danger” was a worker who suffered a heart attack while off duty in his barracks in Greenland. 

 

While handled similar to Longshore and Harbor Workers’ Compensation Act cases, there are differences in some details that make finding an experienced attorney important.  There can be slight differences in the calculation of the Average Weekly Wage, there are procedural differences (while the claims must occur outside the continental U.S. they must be initiated in very specific district offices of the Office of Workers Compensation Programs; they are adjudicated in that District office until the employee returns home in which case the case can be transferred to the District appropriate to the worker’s residence) and under certain circumstances the appeal procedures differ from Longshore and Harbor Workers Compensation Act cases. 

 

In my own practice, I have handled cases under the DBA to include, for example, a truck driver who suffered a herniated disc in his back when his tanker truck slipped into a two foot deep “rut” while delivering jet fuel to support the war effort in Iraq (a case where the injury occurred in the “scope and course of employment” much like any workers’ compensation claim) and a physician’s assistant employed to provide medical support to the activities of rebuilding the science research station at the South Pole who slipped on ice and fractured his leg on the way to the bathroom (“injured in the zone of special danger”). 

 

As such, whether injured in Iraq, Afghanistan, the South Pole, Saudi Arabia, Greenland, South Sea islands, or anywhere else work is being performed under a contract of the United States to complete public work for the U.S. or its allies and/or under a service contract for such operations, the Defense Base Act is likely the applicable Act to provide workers’ compensation coverage.  Care must be taken to assure your rights are protected as many employers will attempt to cover these types of claims under state workers’ compensation acts (where benefits are reduced) or otherwise to avoid financial responsibility.  Even if one is receiving benefits under a state workers’ compensation benefits for such an injury which occurred outside the continental U.S., consultation with an attorney experienced in the Defense Base Act is advisable to assure that one’s claim is being processed under the correct workers’ compensation act to maximize benefits received. 

 

War Hazards Compensation Act:  For those who are injured or killed by hostile actions under a declared war or “hostile action” there is coverage under the War Hazards Compensation Act (“WHCA”).  This covers all civilian workers injured or killed due to “hostile actions” even if they would have otherwise been covered by the DBA or other workers’ compensation acts if injured or killed due to injuries which occur in the scope or course of their employment (not arising out of hostile actions or which occur in the “special zone of danger” not arising out of hostile actions).  All WHCA claims are handled through the Washington, D.C. district of the OWCP, under the procedures applicable to the Longshore and Harbor Workers’ Compensation Act.  

Independent Medical Exams or IME’s

Perhaps it comes from reading hundreds of them. While medical exams arranged  by the Department of Labor & Industries or a self-insured employer may be called “independent”, they seem to be anything but “independent”. I generally refer to them as panel exams or defense medical exams. Whenever a dispute, question, concern or confusion arises in a claim, a medical exam is scheduled. The reports are often boilerplate, the same physicians show up time and time again. They seem to stall medical treatment rather than facilitate it.  

 

Be that as it may, if you are scheduled for such an exam, you need to go. Failure to attend will likely result in some negative action being taken on your claim. The Department or the self-insured employer has the right to have you evaluated by a physician or physicians of their choosing. These exams can be scheduled for any reason, and pretty much as often as they want. That said, I do have some suggestions.

 

If the date or time of the exam is inconvenient, it is ok to reschedule. Just call the phone number on the notice and reset the exam for a better time.  Despite what a frustrated claim manager may tell you, you are allowed to go on vacation, make plans, and have appointments unrelated to your claim. You are not at the beck and call of your claim manager 24/7. While your personal activities can not completely prevent your cooperation with reasonable claim management requests, they may make you temporarily unavailable, necessitating an exam be rescheduled.

 

If you have an emergency and need to cancel the exam at the last minute, call. It happens. Hopefully, not to the same worker over and over again, but it does happen. It could be the weather, or car trouble, or a sick child. Whatever the reason, call the facility and your claim manager as soon as possible. Unless you have a pattern of last minute missed appointments, it will not be grounds for suspending benefits. Although, you may be asked to write a short statement about the reason for the last minute cancellation for your file. The exam will be rescheduled.

 

If your injury makes driving difficult, you can ask that transportation be provided. Usually, the Department or self-insured will arrange a taxi pick-up. If you are traveling from out of  Washington State, travel will definitely be provided, as well as hotel accommodations if necessary. If you do drive, keep track of your mileage and submit a travel reimbursement. You can get a form here.

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1631

  

Take someone with you. If you have an attorney, they can not go with you. But, you can certainly take a friend or family member. Not only will this give you some piece of mind, it will be an extra set of eyes and ears.  Your companion may sit through all parts of a physical exam. They will not be permitted to sit through a psychiatric or psychological evaluation.

 

Report any misconduct or inappropriate action by the physician who examines you or any other person associated with the facility where you have the exam. The Department will take action if they receive a number of valid complaints involving a particular provider or facility. If you have a concern about your exam, put it in writing right away and send it to your claims manager. It is perhaps human nature to view complaints made only after the report is received as a bit less credible. Complaints can be sent to:

IME Quality Assurance
Provider Review & Education Unit
Labor & Industries
PO Box 44322
Olympia, WA 98504-4322
360-902-6818

Do not rest up before your exam. I tell my clients to go about their normal activities before an exam, so the provider can see them in their normal state. Keep in mind it is important to be honest with the examiner. Not every test will cause symptoms, and you should be straight up about what does and does not effect your condition.

 

You are entitled to a copy of the exam report, although, the examiner will not send a copy to you. If you have an attorney they will get a copy of the exam and send it to you and your medical provider and request any necessary response. If you do not have an attorney, send a request for a copy of the exam in writing to your claim manager. While there is no law which says the request has to be in writing, I find it harder to ignore or forget about if it is in writing. When you get a copy of the report, take it to your attending medical provider. While the claims manger should send the report to your doctor, it does not always happen. Ask your physician to review and forward any comments directly to your claims manager.

 

You may find a second medical exam is scheduled shortly after  a report is received from the first exam. This is an unfortunate outcome of claim mangers looking for a “preponderance” of medical opinion. Many claim managers seem to feel this means the number of opinions on a particular issue, completely ignoring the quality or credibility of those opinions.  There is not much you can do about it.  If you have an attorney they will make the appropriate arguments, and work with your physician to obtain helpful information to forward to the claim manager.  However, to avoid being found uncooperative and having your claim or benefits suspended, you will need to attend the follow up exams.

 

The Department is currently drafting new Rules defining who can conduct these “Independent Medical Exams” and what those exams should look like. There is some hope these new Rules will serve to improve the quality of the exams themselves and make them more objective and fair.  I suppose we’ll see. In the meantime, these exams are a necessary part of your journey through the workers compensation system. Understanding them, and following a few common sense suggestions will  improve the experience.

Legal Fees – not a forbidden topic

I keep harping on calling an attorney when you have questions or need help with a workers compensation claim.  I started thinking about what might stop an injured worker from making that call. I suppose there could be a lot of reasons, from simple procrastination to intimidation.  If you’ve never needed an attorney, this could really be a daunting task. But, push comes to shove, I think the number one reason injured workers may put off talking to an attorney is fear of what it is going to cost them. Am I right? You are reluctant to ask, not sure what the protocol is, and frankly, we can be a scary bunch sometimes. (Not really, but it is a lot like being assertive with your medical provider. We are providing a service, and you shouldn’t be afraid to ask)

 

So, let’s talk head on about what it will cost you to ask for help with your work related injury claim.  The first thing to remember is any attorney in this line of work will talk to you on the phone or at an initial office consultation for free. It cost you nothing, nada, zip out of pocket.  Pick our brains, ask your questions. It will not cost you a dime.  It’s a relief to get that out of the way, isn’t it?

 

Now, what will it cost you if you hire the attorney you speak with to represent you? Washington State Labor & Industries first. These types of cases are generally done on a contingency fee basis. In plain English this means we are going to take as a fee for our work a percentage of the benefits we obtain for you.  The percentage is different depending on the type of benefit we obtain for you, for instance back due time loss, on-going payment of time loss, permanent partial disability, permanent total disability or pension benefits, to name a few.  The percentage should be clearly spelled out in the contract you sign, and you should definitely ask questions if you have them. If we don’t get you any additional benefits under your claim, we are not going to get paid a fee for our legal services.

 

Separate from fees for legal services you will be responsible for any out of pocket costs incurred or advance by the office in pursuing your claim. That may sound scary but don’t let it put you off. Initially the costs incurred are very minimal. We get the file for free from Labor & Industries or the self-insured employer. We may pay reasonable fees to get additional medical records from your providers.  There may be larger costs incurred if your claim is in litigation. Unfortunately, medical providers have to be paid for their time to testify, vocational experts have to be paid for their assistance, court reports are necessary to take depositions. All of these costs are ultimately your responsibility. The attorney you hire should talk to you about these types of anticipated costs. You have the final authority to proceed with the litigation or to pull the plug. This is sometimes a tough decision, but can and should be guided by what you have to gain from the litigation. No attorney can guarantee an outcome, sometimes the anticipated benefit is worth the risk, and sometime it isn’t.

 

I’ve always believed contingent fee arrangements are good for consumers, in this case injured workers. They tend to keep legal professionals more realistic about what they can and can not do.  I honestly tell potential clients if I can do anything to help them. If there are no additional benefits to gain, it is a waste of  time, for both of us, to chase a claim where there are no benefits to be had. If all possible benefits are already being paid, you might not really need an attorney – yet.  In that case, a good attorney may explain what to watch out for, when to call back, and send you on your way.  Contrast that to an attorney who is billing hourly for their work. It might not matter so much what the final outcome for the client may be. Some legal work has to be done hourly, and those consumers have different issues and questions they should be asking. But for injured workers in Washington State I believe the contingency nature of the contract serves everyone well.

 

There is an additional protection built into the Washington State Labor & Industries law to protect workers who hire attorneys to represent them.  It is not a secret – it is written right there in our fee contract, and when you hire an attorney the Department will send a letter explaining it as well. If you hire an attorney to represent you with respect to an L&I claim and you are charged a fee for legal services, even if it is exactly what you agreed to be charged, if you don’t think it is fair and you and the attorney can not work out an agreement, you can go to the Department or the Board of Industrial Insurance Appeals and ask them to review the matter and set a reasonable fee.  It does not happen often, but it is a fail stop to protect injured workers.  That’s a good thing.

 

So, what if you have a Longshore and Harbor Workers Compensation claim? By statute, attorneys who represent workers are paid on an hourly contingency fee basis. UH?  I know, that sounds confusing. In a nutshell, we bill for our legal time on an hourly basis, but we only get to recover that hourly fee if we are successful in obtaining benefits for the worker under the claim. So, you still have the consumer protections built into a contingency fee arrangement, but the attorney has to account for all time actually spent working on your file.

 

There is also a fee shifting provision in Longshore claims. Fee shifting is a nifty mechanism to assist injured workers in getting the legal help they need with their claims. If the employer has controverted or denied your claim, and if we are successful in obtaining additional benefits, the employer can be held responsible for both our hourly fee and the out of pocket costs spent in pursuing the claim.  This has the duel effect of encouraging workers to get legal help when they need it, and discouraging attorney from taking on claims before there is really a dispute. Unfortunately, this fee shifting is not available in Washington State Labor & Industries claims.

 

There is an added protection for injured workers with Longshore claims. Any attorney seeking to collect a fee for legal services for representing a worker must file a petition documenting the time spent and requesting an award of the fees, specifying whether fees should be paid by the employer or the worker. The requested fee has to be awarded by the District Director, Administrative Law Judge, Board or Court before who the legal work was done, before the attorney can be paid the fee. One more hoop for attorneys, but one more layer of protection for workers with Longshore claims.

 See, all in all, that wasn’t too painful or intimidating. These are all the things I would discuss with a potential client on the phone or in my office.  You are the consumer here, and you have the right to ask questions and understand how your attorney will be paid, and what you will be responsible for yourself.  If an attorney can’t or won’t answer these types of questions, then you are in the wrong office. Ultimately, you have to be comfortable with your attorney.  Questions about legal fees and costs should never stop you from getting the legal help you need with your workers compensation claim.

Alphabet Soup

 

If you are dealing with a workers compensation claim you probably feel like you are swimming in alphabet soup. Everything, and I mean EVERYTHING, has an acronym. So here are a few translations, with very basic definitions – hope they help.

 

L&I – Labor & Industries. The Washington State Agency charged with managing workers compensation claims. Often referred to as the Department.

SI or SIE – Self-Insured or Self-Insured Employer. Some employers are self-insured. They must still follow the same law, and the Department has oversight and can help resolve any problems or disputes.

TL – Time Loss. The benefits you receive while you can not work because of your injury.

LEP – Loss of Earning Power Benefits. The benefits you receive if you are able to return to some work, but not at your full earning power. These benefits are paid only while your claim is open.

KOS – Kept on Salary. Some employers may choose to continue your regular pay, and benefits, instead of placing you on time loss (TL) when you can not return to work because of your work injury.

AP – Attending Physician. Your treating medical provider under the claim. You have the right to choose who will treat your work injury, although all providers must have an L&I provider number to bill the Department for treating you.

APF – Activity Prescription Form. The form sent to your medical provider by your claims manger to gather specific information about your condition, treatment plan and work limitations.

MMI – Maximum Medical Improvement. When your medical condition is fixed and stable, and there are no additional curative treatment recommendations.

PPD – Permanent Partial Disability.  The permanent loss of  function or use of  a part of your body because of your injury. Called a ‘partial’ disability because you are able to return to some type of gainful employment.

PTD –Permanent Total Disability or Pension. The inability to return to reasonable continuous gainful employment in any capacity because of your work injury.

CM- Claims Manager. The person in charge of managing the day to day activities on your claim.

TPA – Third Party Administrator. If your employer is self-insured your claim may be managed by a third party, or private company, hired to manage claims.

VRC- Vocational Rehabilitation Counselor. The professional assigned to assist with early return to work, assess your ability to return to work when your medical condition stabilizes, and to assist with vocational retraining if you are found eligible.

VDRO – Vocational Dispute Resolution Office. The section of the Department in charge of resolving disputes about employability determinations or vocational services.

IME – Independent Medical Exam.  A medical exam done at the request of your claims manager. (We’ll debate another time whether these are truly “independent”)

DO – Department Order. The notice you receive from the department when they take action on your claim, including payment of benefits. Watch carefully, if you disagree with this order you have 60 days to file a written protest or appeal.

BIIA – Board of Industrial Insurance Appeals. The State agency charged with holding hearings to resolve dispute in a Labor & Industries Claim.

IAJ – Industrial Appeals Judge. Hearings are conducted by an Industrial Appeals Judge.

AAG – Assistant Attorney General. The attorney who represents the Department, and defends the Department orders in litigation.

 

If you are in the Longshore Arena you may run into some different initials:

 

OWCP – Office of Workers Compensation Programs. A subpart of the Federal Department of Labor, which has oversight of Longshore claims

TTD – Temporary Total Disability. Similar to time loss, the wage replacement benefit you receive while you unable to work because of your work injury.

TPD – Temporary Partial Disability benefits. Similar to Loss of Earning Power, the benefits you receive if you are able to return to some work, but not at your full earning power. Paid until your medical condition is stable.

AWW- Average Weekly Wage. The base rate used to determine the amount of your weekly benefits.

ALJ – Administrative Law Judge. Longshore hearings are conducted by Administrative Law Judges.

Longshore Claims

I have been talking primarily about Washington State Labor & Industries claims in these notes. However, there is another common type of work related injury claim. Those workers who are employed “on or near navigable waters”  will find they are covered under a Federal Law, rather than our State Labor & Industries statute.

            The Longshore and Harbor Workers Compensation Act is a Federal law designed to cover those workers who are engaged  in maritime employment, and are not a member of the crew of a vessel. This would include any longshoreman, any worker engaged in longshore operations, and any harbor worker, including ship repair, ship building and ship-breaking.

            There are several extensions of the Longshore Act which expand its coverage to employment which is not traditional Longshore work. The two we see the most of in Washington are the Nonappropriated Fund and the Defense Base Act extensions. The first covers those who are employed by a nonappropriated fund, which is a fancy way of saying a civilian employed on a military base to work in a facility such as a commissary, restaurant or an on base day-care facility. The Defense Base Act extension applies to those civilian employees injured while working at a military, air or naval base, outside the United States, or on a public works project under contract with the United States where the work is performed outside the continental United States. Workers in these two groups who are injured at work have claims which are governed by the Longshore act.

            Claims under the Longshore Act and State Labor & Industries claims are very different animals. Different time lines for filing claims, different methods for calculating benefits, different methods of compensating permanent disability, and a whole host of other details.  Longshore claims are monitored by the Department of Labor in Seattle, although the actual claims management will be the responsibility of the employer or their insurance carrier. State Labor & Industries claims are managed by the Department of Labor & Industries in Olympia, or if the employer is self-insured, a third party administrator will manage the claim, with oversight by the Department of Labor & Industries. 

       It is important if you have a work injury that you properly file your claim as a State Labor & Industries claim or a Federal Longshore claim.  Frankly, most longshore workers know who they are; and if you have never heard of longshore work, then it’s a safe bet you’re covered under the State act. If in doubt, ask your union representative, ask your employer, or call our office and ask an attorney.  Whether you are covered by the State Law or the Federal Longshore Act, we can answer any questions you might have about your claim, or the benefits which you may be entitled to for your work injury.