Under fire: Wartime stress as a defense for murder

This is the price that innocent people pay when PTSD and TBI are IGNORED by the Military, the Veterans Administration  and the Defense Base Act Insurance Companies.  The Defense Base Act Insurance Companies should be found guilty of murder themselves in many instances.

“We haven’t begun to see the wave of all this.”

Should post-traumatic stress disorder be a defense for murder? Watch “War Rage on Trial” on CNN Presents, Sunday, May 6 at 8 p.m./11p.m. ET.

CNN

Less than a year after returning from combat in Iraq, Nick Horner was charged with two murders.

Altoona, Pennsylvania (CNN) — Raymond Williams had just retired and was looking forward to traveling out west with his wife and spending time with his three grandchildren. But all those plans were shattered on April 6, 2009. As Williams, 64, went to get the mail on that spring day, he was gunned down by a man he’d never met.

His wife found his body.

“She said, you know ‘Matt! Matt! Somebody shot Dad,’” recalled Williams’ son, Matt. “It didn’t register. I’m thinking, ‘OK where is he now? Did they take him to the hospital? What hospital is he in?’ And before I could even get another word out, she goes ‘And he’s dead.’”

A short time earlier, the same gunman had killed a teenager and wounded a woman at a store in the same working-class town of Altoona in central Pennsylvania.

The gunman, Nicholas Horner, was a husband, a father, and a veteran soldier who had been awarded multiple medals for his service in Iraq, including a combat action badge. Less than a year after returning from combat, Horner faced two first degree murder charges and the possibility of the death penalty.

“Not in a million years could I believe this was true because Nick would never, he could never hurt anyone,” said Horner’s mother, Karen. “I know Nick. Nick pulled the trigger, but that wasn’t Nick.”

Please read the entire story here

All’s Fair in Love and AIG WAR? No Ethics ?

Defense Base Act Claimants really are in another War Zone when they must file a DBA Claim.

As it turns out many, too many, of the Plaintiff’s own Attorneys are aiding and abetting the enemy

Last January ALJ  Berlin awarded the Dill Widow DBA Death Benefits in a very important PTSD/Suicide Claim.

This claim was denied for five years while Wade Dill’s  widow Barbara’s integrity was brutally attacked as though she had pulled the trigger herself.

KBR refused to supply Wade Dill’s medical records and other reports which would have exposed the state of mind he was in while still in Iraq.  But it is OK to defy discovery if you are AIG/KBR-SEII.  Do not try this yourself, you’ll lose your claim.

Dennis Nalick was the Attorney who brought this claim to a successful decision. 

Barbara Dill’s next Attorney, Bruce H Nicholson, refused to address misinformation in the records saying “you won the claim why would you want to mess with it”.

Mr Nicholson refuted any suggestion that this very important decision would be appealed.  He went so far as to tell the Widow that she should discontinue corresponding with those who assured her it would be.  Bad people we are, just trying to upset her needlessly.

AIG KBR SEII via Michael Thomas appealed the decision.

Mr Nicholson never responded to the Benefits Review Board on behalf of the Widow though he assured her he was on top of it and he and the widow corresponded regularly.

On February 28 the BRB overturned the ALJ’s decision, unopposed.  The widow was not represented at all.

Mr. Nicholson was though, prior to this decision, negotiating a “settlement” with Michael Thomas and AIG which would take this important PTSD Suicide decision out of this WAR as case law for all impending and future PTSD Suicide claims.  The same Mr Nicholson who posted here at the blog in response to the award:

“The decision represents a sound road map for work related contractor suicide claims and is unlikely to be overturned when followed.”

We ask, is no one in this wretched biased system held to any standard of ethical practice?

Mr Nicholson was responsible for representing the Widow and he did not.

Would it not have been a requirement of those who were involved in this to make the widow aware, to speak up?

We do not kid ourselves that this was simply a case of friendly fire.  There was too much at stake here.

Insurance Companies buy Republican US Senator, among others, to Further Deny Your Rights under the DBA

S. 669: Longshore and Harbor Workers’ Compensation Act Amendments of 2011

Here's Johnny !!

Johnny Isakson of Georgia has presented Bill S. 669 to the Senate which has been referred to a committee on which he sits, the Senate Committee on Health, Education, Labor, and Pensions, for deliberation, investigation, and revision.

TRACK THIS BILL

Bill S.669 was introduced AS IT WAS WRITTEN BY IT”S SPONSOR who is Senator Johnny Isakson, who is heavily supported by Insurance Companies and Attorneys who stand to reap ever larger profits than they already do if this bill were to become law.

Nearly every aspect of the Bill would be a huge present to the Defense Base Act Insurance business.

Johnny is looking out for the insurance companies and attorneys

This grim reaper sits on the Veterans Affairs Committee as well.

Johnny Isakson can be contacted at 202-224-3643.

1175 Peachtree St Ne
Atlanta, GA 30361
Phone : (404) 347-2202

The following is from the Johnny Isakson page at MapLight.org

Total Campaign Contributions Received by Johnny Isakson: $8,231,997

Interest	Contributions
Real Estate	$854,942
Lawyers/Law Firms	$449,582
Health Professionals	$298,416
Insurance	$251,650
Banks and Credit	$236,150
Lobbyists	$214,261
Securities & Investment	$200,500
Misc Finance	$178,075
Pharmaceuticals/Health Products	$167,500

Department of Labor Refusal to find CNA in 18(a) default of order

As referenced in the previous post Department of Labor District Offices Dead in the Water Scott Bloch filed a request to find CNA in 18(a) Default of an Order on behalf of Merlin Clark on September 16, 2011.

Merlin Clark has been denied medical by CNA since 2005 after being blown up in 2003.  An order signed by an ALJ and issued by the Jacksonville District Director in October of 2010 has not been complied with.

After giving CNA nearly a year to comply this request was filed just prior to the one year deadline for doing so.  It’s not that they did not have the opportunity for nearly year to comply, if not five prior years to live up to their contractual obligations to the taxpayer.

Yet this 18 (a) Request for a Default has been denied due process.  Three additional months of non compliance on top of nearly a year.  No attempts by CNA to bs their way out until this issue was posted here on the blog.  They know there is no consequence to them when they do not comply with orders.

Instead of issuing a supplemental order  and allowing Mr. Clark to exercise his rights outside of this broken Administrative Law System the District Director has taken it upon himself to attempt to mediate this already decided claim yet again.

Where does this Not Very Merry Go Round stop, if ever?

Why does the Department of Labor repeatedly side with the insurance company with no regard to the health and well being of injured war zone contractors and their families?

Who is benefiting from this?

Defense Base Act Average Weekly Wage and Up Pays-Overseas Employee Remuneration

Average Weekly Wage determinations are based on the amount you were making at the time you were injured and

INCLUDE UP PAYS

Still the Department of Labor allows the Insurance Company to use this issue to underpay and deny payment of indemnity to injured contractors and death benefits to the family members of those killed.

One Claims Examiner in particular recommends at every informal conference we have been made aware of that the injured contractors AWW does not include up pays.  This allows the insurance company to either cease payments or underpay the injured for the years it often takes to get the claim before an ALJ where this will be remedied.

Often the Injured Contractor has grown so weary of the fight that they accept this lower AWW and consequently lower indemnity payments.  Worse often the Injured Contractors own Attorney recommends to them that they accept this illegal determination.  It will not effect what they get paid.

An injured contractor may be told that this is inconsequential to their claim because their AWW is so much higher than the DBA limits.  Never accept this determination as it will effect your residual wage earning capacity in the event you are able to return to work albeit in a diminished capacity.

This biased practice on behalf of some Department of Labor employees places an increased burden on the DBA Administrative System which is evidently nearly at a standstill, on the injured contractor and their family, and unfairly allows the insurance company to drag out claims unnecessarily for years on end.  More legal fees to be paid by the taxpayer for both sides and it only cost the insurance company .24 percent to withhold these funds.

DBA Insurance Insurance Premiums are paid based on the following:

The rates are per $100 of contractors’ overseas employee remuneration.

“Overseas employee remuneration” means the salary of an employee eligible for DBA coverage earned overseas and includes
 Overseas recruitment incentive,
 Post differential, and
 Danger pay,

But excludes
     Per diem,
     Housing allowance,
     Travel expenses,
     Temporary quarters allowance,
     Education allowance, and
     Any other miscellaneous post allowances

Any changes in the amount of remuneration paid during the term of the policy will result in corresponding changes to the amount of the premium. This is where CNA screwed over USACE by not refunding premiums where required.

The above DBA premium information was taken from the following though it is also stated in the LHWCA

Acquisition Assistance and Policy Directive Defense Base Act Insurance for 2010-2015 USAID

Department of Labor holding Defense Base Act Claims Hostage

The Department of Labor has been denying Defense Base Act Claimants the informal hearings that are required under the Act in order for your attorney to get paid among other things.

The Department of Labor itself made it very clear that an informal hearing must be held and a Claims Examiner must recommend that a claimants attorney be paid.

The Informal Conference is an integral step in the drawn out process claimants must endure.  The DoL Claims Examiner’s recommendations are only acted upon if they go against the injured contractor but still the Informal must be held.

But for many months now the Department of Labor has been denying claimants Informal Conferences. We have no way of knowing how many claims are being held hostage on the desks of the District Directors and Claims Examiners.

Claimants in this Administrative Law System are already being denied many of their constitutional rights.  Claimants are suffering ever more serious and permanent injury due to a lack of medical care while the DoL sits on their claims.

How many claimants with untreated PTSD and TBI will commit suicide during this Department of Labor embargo?

Is this not physical abuse and how much more of it before this is considered denial of “Due Process” ?

Due process is best defined in one word–fairness. Throughout the U.S.’s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.

Defense Base Act Claimants have fewer rights under the law than convicted criminals.

War Widow Blames VA Neglect for her Husband’s Suicide

Sadly this reads like so many  Defense Base Act  PTSD Suicides, Neglect and unreasonable demands….

GREENEVILLE, Tenn. Courthouse News   October 18, 2011

Neglect and unreasonable demands from the Veterans Administration caused another Iraq war veteran to kill himself,

his widow claims in Federal Court. She says that despite a doctor’s “clear diagnosis” of post-traumatic stress disorder, from roadside bombs, including one that killed 93 people, the VA refused to admit he suffered from PTSD, with excuses such as “the diagnosis ‘does not specify which Diagnostic and Statistical Manual was used’”; and that he “‘failed to provide dates of the incidents or names of any casualties.’”
Tracy Eiswert says her husband Scott suffered substandard care from the VA hospital in Mountain Home, Tenn., before he killed himself in 2008. He was 31. She survives, with their two young children.
It’s the latest in a string of lawsuits from families of veterans nationwide, who say the VA was less than helpful after veterans returned from wars in Iraq and Afghanistan.
The VA in July 2010 relaxed requirements for veterans seeking service-connected PTSD benefits, but the agency still faces criticism for its mental health services.
The 9th Circuit ruled this year in a California class action that the “VA’s failure to provide adequate procedures for veterans facing prejudicial delays in the delivery of mental health care violates the Due Process Clause of the Fifth Amendment,” according to Tracy Eiswert’s complaint.
Scott Eiswert joined the National Guard in 2001 and served in Iraq in 2004 and 2005.

Tracy Eiswert says her husband first sought help for his symptoms after he was honorably discharged in November 2005.
She says Scott saw a professional counselor at a private mental health facility in Greeneville for almost 4 months. Scott’s symptoms included depression, acute insomnia, extreme stress and irritability, according to medical records described in the complaint.
His counselor recommended individual psychotherapy and reported to Scott’s physician that he “certainly appears to meet the criteria for PTSD,” the complaint states.
According to the medical records, in May 2006, Scott’s counselor wrote a letter to the Department of Veterans Affairs, stating: “After meeting with Mr. Eiswert for several appointments, we have established a diagnosis of PTSD, per the Diagnostic & Statistical Manual Criteria.”
The widow says her husband applied to the VA for service-connected PTSD benefits based on the counselor’s diagnosis.
The complaint states:
“In the application Scott describes a number of incidents in Iraq as follows:
“Various Route Clearances – Roadside Bombs, Raids
“Convoy Escorts, all the Outside Wire Dangers and Stresses.
“Close Calls on Roadside Bombs
“Car Bombs and the Destruction they Cause, Including Civilian Fatalities (Body Parts)
“‘I was on a Raid with Fellow Soldiers when they got Blown-Up by a Massive Roadside Bomb. (93 Dead, 1 Crippled)” [Punctuation as in complaint.]
But the VA denied his claims three times before he killed himself, his widow says.
In its September 2006 denial, the VA stated that Scott’s counselor “does not specify which Diagnostic and Statistical Manual was used.’ The denial analysis also states that even though Scott provided ‘sufficient details concerning a stressor …’ it ‘failed to provide dates of the incidents or names of any casualties.’” (Ellipsis in complaint).
Tracy Eiswert says the VA doctor who assessed Scott did not have access to the records of Scott’s private counselor and “relied entirely on Scott’s narrative to make his assessment.” She says the VA doctor “concluded that ‘veteran has current diagnosis of depression, NOS. He does describe symptoms of Post Traumatic Stress Syndrome, however not enough to meet criteria.’”
(NOS apparently indicates “not otherwise specified.”)
The VA denied Scott’s claim a second time in November 2006, after receiving additional medical records from the Tennessee National Guard.
Tracy Eiswert says VA doctors gave Scott medications for depression and insomnia, but he did not tolerate them well.
By early 2007, Scott reported increased marital and family problems, increased irritability, nightmares, night sweats and difficulty sleeping, according to medical records in the complaint

Please read the entire story at Courthouse News

Dementia Risk Linked to Combat Head Injury, Study Says

Defense Base Act Insurance Companies CNA and AIG  have been extremely negligent in denying Contractors injured in bomb blasts diagnoses and treatment of Traumatic Brain Injury.

Diagnoses and treatment of Traumatic Brain Injury delayed and denied results in irretrievable life long damage.

Bloomberg  July 18, 2011

Head injuries may more than double the risk of dementia in military veterans, a study found.

The dementia risk was 15.3 percent among U.S. veterans who had sustained a traumatic brain injury, compared with 6.8 percent for those who didn’t suffer head trauma, over a seven-year period. The risk was significant for all forms of traumatic brain injury, or TBI, according to researchers, who reviewed medical records of 281,540 veterans ages 55 and older.

The findings, to be presented at the Alzheimer’s Association International Conference in Paris today, highlight another potential hazard of war. Traumatic brain injury is a“signature wound” of the conflicts in Iraq and Afghanistan, accounting for 22 percent of casualties overall and 59 percent of blast-related injuries, said Kristine Yaffe, director of the Memory Disorders Program at the San Francisco Veterans Affairs Medical Center and a professor of psychiatry at the University of California, San Francisco, who led the research.

“This issue is important because TBI is very common,”Yaffe said in a statement. “The data suggest that TBI in older veterans may predispose them toward development of symptomatic dementia. And they raise concern about the potential long-term consequences of TBI in younger veterans.”

‘Pretty Conclusive’

“It’s pretty conclusive that there is an association between serious head injury and dementia,” Thies said in an interview. “What we can anticipate is that in all those soldiers coming back from Iraq and Afghanistan, 20 years from now we are going to see a big increase in the amount of Alzheimer’s that’s going to develop.”

Please read the entire article at Bloomberg

Patrick Elkins of Clinton awarded Defense of Freedom Medal after being seriously injured while driving a truck in Iraq

Permanent nerve damage ended Elkins’ career as a truck driver, the only job he ever wanted. Battles with an insurance company halted Elkins’ benefits and forced him to drain every penny of his savings.

Herald Review  May 12, 2011

CLINTON – Patrick Elkins doesn’t dwell on the roadside bomb that nearly took his life in Iraq almost four years ago.

He would rather concentrate on his accounting classes at Richland Community College and the good friends he’s made since he was invited to come to Clinton, a town he had no ties to before the semitruck he was driving took a direct hit near central Iraq on July 14, 2007.

But the Army and Kellogg Brown and Root, the contractor for which he worked, did not forget the sacrifice Elkins and other civilian workers have made in Iraq and Afghanistan. So on April 22, the 44-year-old Elkins traveled to Houston, Texas, to receive the Defense of Freedom Medal, the highest military honor a private citizen can receive, an equivalent to a Purple Heart.

There’s a story behind the medal.

“It was so intense. It was all over before I realized what had happened.  My truck was blown to bits by one mean roadside bomb,” said Elkins, an Ohio native who hauled supplies for the engineering and construction contractor for about two years.

Military medics pulled Elkins’ paralyzed body from the vehicle and rushed him by helicopter to Kuwait, where it was determined his injuries were too severe for treatment, and then to a hospital in Germany.

“Behind all this is the thrill that you don’t know if you’re to make it,” Elkins said. But he knew he would after he moved one of his toes.

About two weeks later, during a shower, a piece of the shrapnel that had struck his neck and upper spine popped out.

Permanent nerve damage ended Elkins’ career as a truck driver, the only job he ever wanted. Battles with an insurance company halted Elkins’ benefits and forced him to drain every penny of his savings.

Don Durbin, a fellow truck driver in Iraq, offered to let Elkins stay with him in Clinton when he returned to the United States.

“I’m so grateful for his help and the grand offer he made,” Elkins said. The two lived together until Durbin married and moved to Springfield.

With his benefits now restored, Elkins is able to pay for a small, second-floor apartment in Clinton. A cot from his service in the Army 20 years ago serves as his bed. Several large metal boxes from his days as a long-distance hauler do double duty as storage and living room furniture.

“I knew exactly what I was getting into. The people who hired me were clear about the hazards. � This is what happens in a war,” he said.

When Elkins finishes his degree at Richland, he plans to move to Kentucky, living on property once owned by his grandmother, but he never will forget the friends who embraced him in Clinton.

“I will always owe them a favor,” he said. “How do you repay people who helped you smile again?”

eblunny@herald-review.com

War Hazards Act pays Insurance Companies more for expenses than to Claimants for compensation

“Over the past six years  (does  not include 2010) under the WHCA,

the federal government has paid more in reimbursements to insurers for expenses

$19.7 million

than it has paid in compensation to claimants

$12.1 million”

-

There is evidence that the current process, in which the federal government identifies WHCA claims after they have been paid as DBA claims and then reimburses insurers for claim and administrative costs, results in the federal government paying significant amounts that do not go directly to claimants.

-

Over the past six years under the WHCA, the federal government has paid more in reimbursements to insurers for expenses ($19.7 million) than it has paid in compensation

to claimants ($12.1 million).

-

There is also evidence, including testimony provided by DBA and WHCA claimants at a 2009 House Committee on Oversight and Government Reform hearing, that in some cases, claimants with injuries that clearly fall under the statutory requirements of the WHCA must first navigate procedural and other requirements of their contractors’ DBA insurers before their cases are eventually transferred to DOL.

-

In some cases, DBA insurers controvert claims or oppose specific benefits for claims that are likely to end up at the DOL under the WHCA. Under the current system, insurers have the right and responsibility to investigate all claims and controvert or oppose claims and benefits they feel are not their responsibility or that fall outside of the DBA.

-

However, this can cause delays for claimants, including claimants with clear WHCA cases that will eventually be paid by the DOL.

-

From the CRS Report April 2010