Overview

As military operations continue throughout the Middle East, including escalating tensions and hostilities with Iran, employers and carriers should expect a continued stream of Defense Base Act claims for alleged psychological injuries. Discussed further below is the framework in which the U.S. Department of Labor analyzes a claim for psychological injuries and what actions should be considered by an employer in defending against such claims.

How DOL Analyzes a Claim for Psychological Injuries

The Longshore and Harbor Workers’ Compensation Act, 33 U.S. Code Chapter 18, provides the overarching framework for DBA claims. Section 902(2) defines an injury as any accidental injury or death “arising out of and in the course of employment,” including occupational diseases arising naturally out of the employment. Claims for psychological injuries are unique in nature, as they concern occupational injuries and not traditional acute injuries, such as a slip-and-fall or pulled muscle. Although a claimant may bring forth such a claim after being exposed to a singular traumatic event, DBA claims overwhelmingly involve continued and repetitive exposure to acts of war and hostile activities.

As with any alleged injury brought forth under the LHWCA and DBA, psychological injuries require a claimant to first establish a prima facie case for compensability. When establishing a prima facie case, a claimant must prove that he (1) suffered some harm or pain and (2) that an accident occurred or working conditions existed which could have caused the harm. A claimant must present affirmative evidence of the injury, but the burden of proof does not require a claimant to produce affirmative medical evidence that the working conditions caused his harm. Instead, a claimant must simply show that working conditions existed which could have caused harm.

The Supreme Court has routinely held that this is satisfied by a claimant’s mere allegation of an injury arising out of and in the course of his employment. Once a claimant establishes his prima facie case, there is a presumption of compensability requiring an employer to rebut said presumption.

Section 20(a) of the LHWCA shifts the burden to the employer to prove by substantial evidence that the claimant’s alleged injury was not caused by his employment with the employer. The employer must produce facts and not speculation in order to overcome the presumption of compensability, and the evidence must be of a kind that a reasonable mind might accept as adequate to support a conclusion.

Courts have routinely held that the employer need only introduce medical testimony or other evidence controverting the existence of a causal relationship between the alleged injury and the claimant’s employment. Employers may rebut the presumption by having the claimant submit to a defense medical examination. Should the independent medical physician conclude upon completion of the examination that the claimant’s alleged injury was not the result of his employment or that the injury has not resulted in a loss of earning capacity, as is the case with unscheduled injuries such as psychological injuries, then the claimant’s presumption of compensability has been successfully rebutted.

Once the Section 20(a) presumption is rebutted, it no longer applies to a judge’s analysis of the claim and instead requires the judge to weigh the totality of the evidence and resolve the claim based on the record as a whole. When analyzing the record, it is within the judge’s discretion to draw on his own inferences when reaching a conclusion. However, the statutory purpose of the LHWCA requires that any doubtful questions of fact are to be resolved in favor of the injured employee.

Actions an Employer Can Take to Defend These Claims

Employers have a variety of tools at their disposal when establishing a record supporting a finding that the alleged injury is not compensable. As previously discussed, a thorough defense medical examination is one of these tools. However, a judge may weigh the opinions of a claimant’s treating physician greater than an independent physician, as the treating physician regularly treats the injured employee and reaches a conclusion based upon more than a singular evaluation.

Other means of building a defense include investigations of the claimant’s treating physician(s) and facilities, as well as the authenticity and validity of the produced medical records. Field surveillance and social media investigations are other means of bolstering the defense, as they too provide an opportunity to call into question the nature and extent of the alleged injury or the claimant’s credibility as a whole.

While the previously discussed methods are important when preparing to defend against a claim for compensation, depositions are arguably one of the most important tools in any litigious system. This is especially true when claims involve foreign claimants, as the availability of securing a claimant’s live testimony at formal hearing presents many logistical challenges.

Deposing a claimant’s treating physician is equally important, especially when medical records are limited in their contents and justifications. Employers may receive medical records containing conclusory language without any evidence to support the diagnosis or work restrictions, and depositions present an opportunity to further explore the physician’s diagnostic criteria and practice techniques. It further presents an opportunity to compare and contrast testing strategies and conclusions against those contained within a defense medical examination, as well as an opportunity to explore areas of concern raised throughout investigations into the medical records or physicians.

Conclusion

The current trajectory of foreign policy strongly suggests that there will be a continuous stream of psychological claims arising out of a claimant’s employment in war-torn areas such as Iran. It is paramount that employers respond to claims for psychological injuries with the presumption that the claim will be compensable and initiate defensive tactics in preparation for formal hearing. Failure to adequately prepare for litigation may leave employers without the necessary evidence to overcome presumptions and inferences that strongly favor injured employees.