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Friday, February 16, 2018

Defense Employer Ordered to Pay Medical for Lung Disease Caused by Burn Pit Exposure

In a decision that will have significant impact on potentially thousands of injured workers, a Court has ruled that a private military contractor for the US Defense Department during the Iraq and Afghanistan conflicts is responsible for the payment of employee’s medical treatment required after manifesting lung disease (bronchiolitis) from exposure to burn pits maintained during the war.

In March 2004, Veronica M. Landry as a morale, welfare and recreation. Specialist for Service Employees International, Inc., a private military contractor. She was assigned to work at two Forward Operating Bases (FOB) in Mosul, Iraq, until February 2005. She was exposed to smoke and fumes from burn pits every day.

She testified, that…. “The burn pit was a huge area that was dug out of the ground that they just burned everything, everything from tires -·you know when tires are being burned, because the smoke was black, just really black - vehicle parts, air conditioner parts, hazardous materials, until we had a new HSE, Health Safety Environmental Officer who came in and started separating the hazmat out the best he could. They were just throwing all the hazmat stuff in there - we're talking paint thinner, whatever, it could be any kind of, you know, hazardous materials - even ammunition. We spent hours in the bunker at a time, because there was ammunition just going off everywhere.”

In August, 2016, Landry underwent a lung biopsy and was diagnosed with “deployment related lung disease: at the National Jewish General Hospital in Denver, Colorado. The illness was deemed related to her exposure to the smoke and fumes from her burn pit exposures.

A claim was filed under the Longshore Harbor Workers’ Compensation Act, 33 U.S.C. §§901, et seq., (“The ACT” or “LHWCA”) as extended by the Defense Base Act, 42 U.S.C. §§1651, et seq. The Court permitted the worker to invoke a Section 20(a) presumption. Therefore, the claimant needed to only show at the time of the hearing that working conditions that could conceivably cause the harm alleged. Sinclair v. United Food & Commercial Workers, 23 BRBS 148 (1989). The Court held that injured worker proved the burden of persuasion and stabled a preponderance of evidence that her condition is work-related. Director v. Greenwich Colleries, 512 U.S. 267, 28 BRBS 43 (CRT) (1994).

The Court held, that… “Ms. Landry is accordingly entitled to medical expenses for any treatment she shows is reasonable and necessary for her work-related conditions. Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996). She must show medical expenses are for treatment of a compensable injury. Pardee v. Army & Air Force Exchange Ser­vice, 13 BRBS 1130 (1981) (Miller, J., dissenting). She establishes a prima facie case for compensable medical treatment where a qualified medical physician indicates treatment is necessary for a work-related condition. Turner v. Chesapeake & Potomac Telephone Co., 16 BRBS 255, 257-258 (1984); Amos v. Director, OWCP, 153 F.3d 1051 (1998), amended, 164 F.3d 480, 32 BRBS 144 (CRT) (9th Cir. 1999), cert. denied, 528 U.S. 809 (1999).”

Additionally, a case filed by hundreds of individuals against a private Government contractor, KBR (Kellogg Brown & Root), that had been dismissed, is now on appeal before the US Fourth Circuit Court of Appeals. The case is a consolidation of class-action and individual suits alleging that KBR and former parent company Halliburton acted negligently when operating the burn pits for the U.S. military, exposing troops to toxic fumes and pollutants.

Veronica M. Laundry v. Service Employees International, Inc. and Insurance Company of the State of Pennsylvania, Case No. 2017-LDA-00210, 2017-LDA-00211. Decided January 11, 2018 (US DOL).

.…Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 has been representing injured workers and their families who have suffered occupational accidents and illnesses.