BRB Affirms Award Widow’s DBA Death Benefits

The Benefits Review Board (“BRB”) recently entered a Decision and Order in Dill v. Service Employees International (BRB No. 18-0014, October 11, 2018), affirming the Administrative Law Judge’s (ALJ) award of death benefits under the Defense Base Act (DBA) as an extension of the Longshore & Harbor Workers’ Compensation Act (LHWCA) to a widow whose husband had committed suicide.

DBA Death Benefits Case – Background

At the first formal hearing of Dill v. Service Employees International (BRB No. 18-0014, October 11, 2018), the evidence demonstrated that Decedent committed suicide while stateside subsequent to several deployments in Iraq as a DBA contractor. The record was replete with references to Decedent’s erratic behavior both prior to his DBA employment, on his sporadic visits home from Iraq, and on his final stateside visit home when he committed suicide.

For example, in Decedent’s last return home, he came home to find the locks changed on his house, his wife having an extramarital affair, and his teenage daughter dealing drugs out of his home with her much-older boyfriend.

What was noteworthy about this case was that there were no pre-suicide psychiatric records. Decedent had never seen a mental health professional and there was no pre-mortem psychiatric or psychological diagnosis. Instead, both the widow and the employer had to rely on expert witnesses performing what the ALJ referred to as a “psychiatric autopsy,” where the parties’ experts interviewed Decedent’s widow and Decedent’s daughter about his behavior.

DBA Death Benefits Case – First Decision

The ALJ initially awarded benefits to the widow, which was first appealed to the BRB and remanded to the ALJ for a determination as to whether Claimant met the Section 20(a) presumption. The ALJ determined that Claimant had met the Section 20(a) presumption, found that the employer had rebutted the presumption, but ultimately found a causal connection between Claimant’s behavior and ultimate suicide and his employment.

DBA Death Benefits Case – Second Appeal

The employer again appealed to the BRB. While the matter was pending a second time before the BRB, the Ninth Circuit Court of Appeals issued a landmark opinion addressing the standard for compensability of suicides in DBA claims. The Ninth Circuit held that suicides or injuries from suicide attempts are compensable under the LHWCA (and its extensions such as the DBA) where there is an “unbroken chain of causation between a compensable work-related injury and the suicide attempt. The claimant need not demonstrate that the suicide or attempt stemmed from an irresistible impulse. The chain of causation rule accords with our modern understanding of psychiatry. It also better reflects the Longshore Act’s focus on causation rather than fault.” Kealoha v. Director, OWCP, 713 F.3d 521, 524-25 (9th Cir. 2013).

The BRB remanded back to the ALJ for application of this standard.

DBA Death Benefits Case – Third Decision

The ALJ issued a third Decision and Order finding that there was an unbroken chain of causation between Claimant’s undiagnosed mental condition and his suicide. In analyzing Kealoha, the ALJ looked at general tort principals in order to determine the threshold for where there was to be a break in the chain of causation. For there to be such a break in the chain of causation, the ALJ held that there must be an intervening cause that is independent of employment. The ALJ found that the decedent tumultuous personal life was not enough to break the chain of causation.

The BRB affirmed, finding that the ALJ had substantial evidence in making the finding that there was an unbroken chain of causation between Decedent’s employment in Iraq and his suicide.