A year ago, the federal government made some big changes to the Veterans Administration appeals process. For the most part, veterans must navigate this complex system on their own. Fortunately, contractors who were injured in Haiti and elsewhere have a better option.
The 2017 Appeals Modernization Act gave disabled veterans three new options when pursuing their claims. Higher-Level Review allows an experienced adjudicator to take a fresh look at a disability claim. The Supplemental Claim option allows veterans to submit new evidence to support their claims. And, the old school Board of Veterans Appeals route is available, as well.
VA Secretary Robert Wilkie predicted that the new system would significantly reduce waiting times, which had been up to seven years.
What Has Not Changed
VA appeals procedure has changed, but for the most part, the system is the same. That is a big reason the Defense Base Act private military contractor system is better than the VA system.
Burn pits are a good example. Before the government abruptly shut it down, tens of thousands of veterans shared their stories in the burn pit registry. Yet despite the evidence to the contrary, the VA refuses to even consider that respiratory and other chronic illnesses might be service-connected.
The Department of Labor has taken a different approach. In January 2018, an Administrative Law Judge ruled that respiratory and other conditions are related to burn pit exposure. Perhaps more importantly, the ALJ expressly stated that such conditions were not environmental, at least in many cases.
The VA compensation philosophy is largely the same, as well. The system discourages legal representation. So, many veterans must wait months or years before they have a strong legal advocate. Not so with the DBA system. A lawyer begins fighting for you almost from Day One.
On a related systems note, VA medical facilities are not the best. In 2018, nine hospitals obtained one-star rankings, and the number of five-star facilities declined from 2017. Nevertheless, Secretary Wilkie said that “closer monitoring and increased medical center leadership and support” has meant “solid improvements at most of our facilities.” However, he did acknowledge that “there’s still plenty of work to do.”
Most injured contractors can choose their own doctors, and since the DBA pays all reasonably necessary medical expenses, these victims are free to seek out the best possible care.
In terms of the benefits available, DBA compensation is a lot like workers’ compensation. Most injured contractors receive lost wage benefits and medical benefits. The systems are not much different, as outlined below.
Lost wages benefits under the DBA vary depending on the nature and severity of the injury, as follows:
- Permanent Total Disability: PTD victims are unable to function following their deployment-related illness or injury, even after they reach MMI (Maximum Medical Improvement). So, they often receive a wage replacement payment.
- Permanent Partial Disability: These victims are in a similar place, except the disability only affects part of the body. Therefore, compensation might be slightly lower. Bear in mind that “disability” is not just a medical term. The word also has educational, vocational, and other implications.
- Temporary Partial Disability: TPD victims can work as they recover, but they must work light duty jobs which are generally lower paying. So, the DBA usually pays two-thirds of the difference between their old and new average weekly wage.
- Temporary Total Disability: Most DBA victims are in this category. They are unable to work until they fully recover. Therefore, they usually receive two-thirds of their average weekly wage until they get back to full strength.
In a few cases, determining a worker’s average weekly wage is just a matter of adding together six months of paystubs and dividing by 25. In most cases, the process is more complex. The AWW includes more than regular cash compensation. It also includes irregular compensation, like overtime and performance bonuses. Additionally, many contractors are injured shortly after they deploy. So, their AWW calculations are based on their old jobs.
DBA benefits also include payment for reasonably necessary medical expenses. These costs include items like:
- On-site emergency care at a field clinic,
- Off-site emergency care at a regional hospital,
- Stateside medical care,
- Transportation between these locations, and
- Physical or occupational therapy.
As mentioned, DBA victims can usually choose their own doctor. Many workers’ compensation claimants do not have this option.
The Claims Process
DBA claims usually begin with the initial notice. Injured contractors must immediately inform their supervisors of their illness or injury.
In trauma injury claims, like gunshot wounds, this requirement is easy to meet. But in occupational disease claims, such as hearing loss, things become complex. Most contractors do not go to the doctor as soon as they have any trouble hearing. So, by the time they seek medical attention, the claims deadline has passed.
A variation of the delayed discovery rule protects victims in these situations. Generally, claimants have no duty to report their illness until they know the full extent of their condition and they connect the illness to a work-related event.
A settlement conference follows a few weeks later. After reviewing medical records and other paperwork, a mediator tries to facilitate a settlement between the victim’s attorney and the insurance company. Sometimes, this conference is successful, but most DBA claims move on to the next phase.
That phase is a hearing before an administrative law judge. At this hearing, an attorney can make legal arguments and challenge evidence. Since their lawyers have so much freedom, victims often obtain fair compensation at this hearing.
Contact Barnett, Lerner, Karsen, Frankel & Castro, P.A. to learn more about DBA coverage.