Memorial Day: Warriors And Workers

The casualties of war in Iraq and Afghanistan over the past 11 years have taken a huge toll on the lives of thousands of our service men and women.

The Pentagon uses DoD Instruction 1300.18 to arbitrarily separate out "wounded in action" from non-battle injuries. Wounded in action is narrowly defined to essentially be an injury directly caused by an adversary. So called "friendly fire" injuries and deaths would apparently not be counted. The emphasis is on acute injuries caused by enemy munitions which pierce or penetrate. Under this scheme, chronic injuries and many acute internal injuries such as hearing impairment, back injuries, mild traumatic brain injuries, mental health problems and a host of diseases suffered by personnel in Iraq and Afghanistan are usually not counted as being war-related regardless of how debilitating they are. They are either generally lumped into the category of "non-hostile wounded" or simply not counted at all

Officially, the Pentagon admits that approximately 5,500 troops have been killed and only 38,000 wounded, amounting to 43,500 total casualties. What is left out (according to such sources as the U.S. Department of Veterans Affairs, the New England Journal of Medicine and the U.S. Navy) are:
- 170,000+ cases of hearing damage;
- 130,000+ cases of mild traumatic brain injuries; and
- 200,000+ cases of serious mental health problems.
If these data are included, the total well exceeds 500,000.

Although the battlefield cannot really be compared to the workplace, injury and death may be causally related. Nearly 3.1 million nonfatal workplace injuries and illnesses were reported among private industry employers in 2010 (2011 statistics are not yet available). The preliminary count of fatal work injuries in the U.S. in 2010 was 4,547, about the same as the final total of 4,551 in 2009 according to the BLS (Bureau of Labor Statistics).

Injuries and disabilities have ramifications beyond the battlefield, impacting job performance. It can affect many employers these deserving soldiers will return to after their military career has ended. This “crossover” effect has already been felt, and will likely be a continuing concern as military injuries continue to mount and become more complex.

This article will focus on workers compensation cases that have been filed by employees who have served in the U.S. armed forces and who were injured during the course of employment, and whether a war injury was causally related to a work injury. Here are some interesting court cases involving veterans who have been injured in the workplace. The entire court opinion can be read in our case law library by clicking on the case number link.

David Cuellar, Appellant and U.S. Postal Service, Post Office, Los Angeles, Ca, Employer, Federal, Case # 05-0429P
Appellant alleged that personnel at the employing establishment discriminated against him on March 18, 2003 by refusing to allow him to go to his workplace with a duffel bag affixed to a rolling caddy that contained food, water, medications and testing equipment necessitated by his medical condition. He asserted that other employees were allowed to bring similar oversized containers to their workplaces. Appellant claimed that none of the alternatives suggested by supervisors or the security officer, such as consolidating his items or keeping them in a locker, were feasible. Appellant alleged that Ms. M_______ did not trust him and harassed him by comparing him to a terrorist or a soldier who "fragged" his superiors in Iraq or Afghanistan. He claimed that Ms. M_______ and other supervisors verbally abused him, laughed at him in front of coworkers and watched him while hiding behind machines. Appellant also submitted a July 8, 2004 Department of Veterans Affairs decision concerning various matters including the effective date of his service-related injuries, the disabling percentages of these injuries, his employability status and his entitlement to educational assistance.

Patrick F. Moran v. R & W Construction, Inc. And Commercial Union Insurance Co., Court of Appeals of Virginia, Record No. 2511-94-1
Patrick F. Moran appeals the decision of the Virginia Workers' Compensation Commission denying benefits for a compensable injury incurred while working for his employer, R & W Construction, Inc. Moran brings before the Court the question of whether he is barred from receiving workers' compensation benefits because his Navy duty requirements prevented him from cooperating with job search efforts and vocational rehabilitation and from working full-time in the selective employment procured for him by his employer. Moran's condition, known to his employer, prevented him from cooperating in this case. These circumstances justify his refusal to cooperate fully in the job search and vocational rehabilitation offered and his failure to accept the full-time selective employment offered.

Daniel Clay Lewis V. Dana Holding Corporation, In The Supreme Court Of Tennessee, Case No. H5491
Dana Holding Corporation (“Dana”), a manufacturer of truck components, employed Daniel Clay Lewis (“Mr. Lewis”) as an assembly line worker beginning in 2003. On October 15, 2008, Mr. Lewis was using a torque gun to tighten a bolt when a weld broke causing the gun to violently pull and injure his shoulder. After the surgery, Mr. Lewis briefly returned to work with restrictions on the use of his left arm. However, he was laid off on February 29, 2009. On September 10, 2009, Mr. Lewis filed a complaint in chancery court seeking workers' compensation benefits from Dana. Following his lay-off, Mr. Lewis obtained a temporary job with the National Guard as a supply technician in April 2009 and was called to active duty for service in Iraq in December 2009. Mr. Lewis completed physical training at Camp Shelby, Mississippi. This training included sit-ups, push-ups, and running. He had to perform a “low crawl,” which was crawling “with your face in the mud, not looking up,” and a “high crawl,” which involved carrying or dragging a field pack and weapons. In addition, he was required to carry another soldier on his back or shoulder to simulate moving a wounded comrade. He was able to perform all of these tasks. Dana does not dispute that the injury is compensable. The trial court held a hearing on March 31, 2010, to determine the percentage of permanent partial disability Mr. Lewis sustained as a result of his injury.

Jeffrey Lee Fenner, Claimant And Appellant, V. Trimac Transportation, Inc., Employer And Appellee., South Dakota Supreme Court, # 1996 SD 121
Fenner was a member of the United States Army with a rank of E-4, having trained and worked in the field of heavy vehicle mechanics, when he injured his back while lifting a box from a shopping cart in December 1991. The medical treatment provided by the military did not restore Fenner's back. He was ultimately honorably discharged in March of 1992. On September 2, 1992, he was seen by a physician at the Veteran's
Administration Hospital who ordered Fenner to change his occupation to "forestall future physical difficulties." Fenner obtained his job at Trimac after he had applied for disability benefits through the military but prior to his learning the outcome of that application. At Trimac, Fenner's duties included brake work, tarp work, and removing, repairing, and replacing tires that weighed up to 200 pounds. At his interview for this position, Fenner denied having any physical condition which would preclude his lifting up to 200 pounds. On September 10, 1992, while lifting a truck tire, Fenner injured his back. He immediately reported the injury to his manager and completed a First Report of Injury.

Roy George, Respondent/Employee v. City of St. Louis, Appellant/Employer, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent, Case # ED84730
Claimant is a sixty-two-year-old man with associate degrees in fire protection and fire safety. At the time of the hearing, Claimant testified he had been placed on disability retirement from his job as Battalion Fire Chief. (FN2) Claimant testified he served in the Army and was assigned to Vietnam. During his one year tour of duty in Vietnam, Claimant stated he witnessed and was a participant in numerous events that left indelible scars on his memory. Claimant offered extensive testimony of the specific traumatic events he experienced in his military service and in his career as a firefighter. Every day the things that went on in the fire department: injuries, fires, risk, dangers, et cetera, et cetera, all that building up, building up, and building up until he no longer felt he could handle it. He could not face another day doing that. The Commission found Claimant sustained a relapse of the PTSD he suffered as a result of psychological trauma he sustained during military service in Vietnam. In general, if a claimant can show that the performance of his usual and customary duties leads to a breakdown or change in pathology, the injury is compensable. The worsening of a preexisting condition is a change in pathology and is a compensable injury.

These cases are a sobering reminder that war is not a video game that you can play over and over and walk away unharmed. War is real and the outcome is not always heroic. Thousands of good men and women have lost their lives doing their job... defending our freedom and liberty.

This Memorial Day, WorkersCompensation.com salutes all veterans and soldiers of the United States Armed Forces.

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