Supreme Court Opens Back Door for Burn Pit Victims

Supreme Court Opens Back Door for Burn Pit Victims

A sharply-divided Supreme Court ruled that an Iraq War veteran and former Texas Department of Public Safety trooper could use a 1994 law to pursue a wrongful termination case against his former employer.

“I’m beyond thrilled and thankful that the Supreme Court agrees with our position and upheld the rights of servicemembers like myself,” the Army Reserve veteran said in an interview. “You come back from war, and you think your job is protected,” he added. 

Due to the effects of bun pit injuries, Le Roy Torres was unable to perform his duties as a peace officer, and the DPS fired him. He sued the DPS in 2017, arguing that the 1994 Uniformed Services and Employment and Reemployment Rights Act protected the rights of injured servicemembers in this area. His burn pit-related symptoms included debilitating headaches, vertigo, severe chest pain, and a persistent, unforgiving cough.

The Supremes rejected the notion that sovereign immunity protected the DPS from this lawsuit. “Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense,” Justice Stephen Breyer wrote in his 5-4 majority opinion.

Burn Pits in Southwest Asia

When he heard about the WTC attack on 9/11, the determined yet befuddled look on President George W. Bush’s face says volumes. Clearly, Bush was resolved to hit the terrorists responsible, and hit them hard. Almost all other lawmakers felt the same way. There would be no hawks and doves this time. Yet even though the signs were everywhere that Al Qaeda was becoming more aggressive, and even though terrorists bombed the World Trade Center just a few years earlier, Bush, along with everyone else, was caught completely off guard. No one had a plan.

When plans are made quickly, the planners often take shortcuts. It does not matter if you are taking on a global terrorist organization or unstopping a sink. In terms of military logistics, planners often focus on what the army needs to move forward, such as fuel and ammunition. No one pays much attention to garbage or anything else the army leaves behind.

Burn pits, or open-air waste disposal pits, are an ideal solution in these situations. That is especially true if planners anticipate a quick “shock and awe” war that ends almost before it gets started. Given the speed of the 1991 Persian Gulf War, and given the fact that Hussein was weaker than he was a dozen years earlier, a quick war seemed likely. If troops are constantly on the move, the garbage they leave behind is not much worse than burning refuse in a campfire.

However, if the fighting bogs down, burn pits are a horrible idea. Toxic particles from human, mechanical, and medical waste hang in the air, and the troops breathe in these particles. The environment is particularly bad for the troops who draw the short straw and must maintain these burn pits. Private military contractors are essentially the DoD’s office temps. Contractors get the bad jobs no one else wants. In other words, they pretty much always draw the short straw.

Burn Pit Injuries and Private Military Contractors

Pretty much everyone agrees that burn pits cause moderate breathing problems, like asthma. However, these issues are only the tip of the iceberg.

Researchers have also connected burn pit smoke to more serious lung injuries. High-temperature smoke burns the insides of the lungs, causing scar tissue to form. This foreign tissue blocks breathing passageways, many of which are no larger than the business end of a pencil. As a result, these victims have severe trouble breathing, even when they are at rest. 

These illnesses are difficult to diagnose. Symptoms like chest tightness and trouble breathing are somewhat generic. A number of things could cause them. These breathing illnesses are also difficult to treat. When these lung conditions become advanced, a risky and radical lung transplant is usually the only option. Not everyone is a candidate for such a procedure. Even if doctors go through with it, there are no guarantees.

Unfortunately, we are not finished yet. The toxins in burn pit smoke also alter cell chemistry and cause tumors. The body cannot naturally dispose of most toxic materials, so they accumulate, accelerating the tumor growth process. Researchers believe burn pit smoke causes brain cancer, liver cancer, and various other serious chronic conditions.

Per the above story, the back door may be slightly ajar for regular servicemembers struggling with the effects of burn pit injuries. But for private military contractors with similar injuries, the front door is wide open.

Several years ago, a Department of Labor Administrative Law Judge ruled that dust did not cause lung problems among Iraq War contractors. Instead, burn pit smoke caused them. So, maximum financial compensation is available in these cases.

Injury Compensation Available

Everything is not wine and roses for private military contractors. The injury compensation process is often long, and the road is often winding. In fact, the aforementioned ALJ hearing is usually the last stop on the Defense Base Act compensation bus line.

Initially, injured contractors must immediately report their injuries to their supervisors. This requirement is not much of an issue in trauma injury cases, like falls and gunshot wounds. But this requirement could be a big problem in occupational disease claims, like burn pit injuries. 

If a victim has an occupational disease and misses the initial claims deadline, a variation of the delayed discovery rule usually applies. Generally, injury victims do not have to begin legal claims until they know the full extent of their injuries and they connect those injuries with their private military contractor deployments.

An oddly-named “settlement conference” is usually next. Settlements are rare at these conferences, usually because so little evidence is available this early in the process. Additionally, the Claims Examiner only conducts a paper review. Attorneys cannot advocate for their clients.

Things are different at an Administrative Law Judge hearing, which is a lot like a trial. Attorneys have full reign to introduce evidence, challenge evidence, and make legal arguments.

Generally, insurance companies want to avoid ALJ hearings if they can. So, most claims settle between the initial conference and the ALJ hearing. So, a lawyer must have more than good advocacy skills. A DBA lawyer must also be an effective negotiator.

For more information about available Defense Base Act benefits, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.