COVID-19 has made its way onto oil platforms in the Gulf of Mexico
This article was posted by the Advocate:
While an oil rig far out in the Gulf of Mexico might seem an unlikely place for the coronavirus to take root, more than two dozen offshore workers on seven out of 680 platforms have now tested positive for the virus, according to the U.S. Coast Guard.
Close quarters, shared mess halls and frequently touched surfaces — such as handrails and handheld radios — make it difficult to stop the spread of the virus once it arrives on a facility. While the federal agency charged with regulating energy production offshore has not established any guidelines, industry groups have created some best practices to decrease the chance that the virus will find its way onto another platform. They say more widespread testing would further enable them to operate safely through the pandemic.
The Bureau of Safety and Environmental Enforcement, or BSEE, has not established any protocols for what companies should or must do when an offshore worker displays symptoms of coronavirus, said Sandy Day, an agency spokesman.
The agency is working to develop mitigations to reduce the risk of exposure for its own employees traveling offshore, he said, four of whom have tested positive for coronavirus. Three have since recovered and have been released from quarantine. One employee is currently under medical care. BSEE is continuing inspections and permitting of offshore facilities during the pandemic, Day said.
BP is among the companies that has had offshore workers test positive for coronavirus, said Jason Ryan, a company spokesman. The workers were already onshore when they got their test results. But the platform has since been cleaned and the crew has rotated, Ryan said.
The company has also implemented a health screening process and 5-day quarantine for all workers before they go offshore. “The safety and well-being of staff and contractors and respect for the communities in which we operate is our highest priority,” Ryan said.
The Offshore Operators Committee, a member-organization of energy companies operating in the Gulf of Mexico, created a tip sheet for reducing the spread of the virus. Suggested mitigation measures include pre-screening before workers are brought to platforms, cleaning of oft-touched surfaces on the platforms and planning for quarantine and specialized transportation for any individuals on board who exhibit symptoms.
The measures appear to be working, said Erik Milito, president of the National Ocean Industries Association. In the past two weeks, there have been 11 COVID-19 cases detected in the roughly 1,500 people who work offshore, he said Monday.
“We see what we think are great results,” he said. “I think that’s due to the seriousness and the commitment we’ve seen.”
As of April 8, 26 offshore workers in the Gulf had tested positive for coronavirus, according to the U.S. Coast Guard, which has been unwilling to provide updates since then. Questions by phone and by email to the Centers for Disease Control and Prevention for more current numbers were not returned.
While Milito is heartened by the low numbers so far, he noted that offshore workers, like others, have experienced difficulty in getting tested for coronavirus. That’s why industry groups have made requests at the federal and state level for testing to be made available for their workers.
“It’s our goal to get everyone tested,” he said. “They’re essential workers. And they are in a confined setting.”
What is the law for aggravated injury coverage under the Defense Base Act? The Aggravation Rule
There is still coverage under the Defense Base Act if you aggravated a prior condition or prior injury.
Under the aggravation rule, if you have a previous injury, disability and/or medical condition and you aggravate it due to your being overseas – then the entire injury, disability and/or medical condition is compensable. Cordero v. Triple A Mach. Shop, 580 F.2d 1331, 1337 (1978).
The exception to this rule is the “double recovery rule.” See below.
The Ninth Circuit has held that the last responsible employer rule should be applied only in occupational disease cases, and the aggravation rule in successive injury or cumulative trauma cases. Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 623-24 (9th Cir. 1991).
The Symptoms of PTSD
Post-traumatic stress disorder (PTSD) is a mental condition that results in a series of emotional and physical reactions in individuals who have either witnessed or experienced a traumatic event. Events that cause the individual to fear for personal life and wellbeing — such as a car collision or other accident, a physical or sexual assault, long-term abuse, torture, a natural disaster, living in a war zone, or life-altering experiences like the death of a loved one — can all spur the following PTSD symptoms…
1. Physical Pain
PTSD will often begin with a series of common physical ailments—such as headaches or migraines, dizziness, fatigue, chest pain, breathing difficulties, and stomach and digestive issues. At first, the person might not realize that their pain is related to their PTSD. Studies suggest that 15% to 35% of people who suffer from chronic pain also have PTSD.
2. Nightmares or Flashbacks
It is very common for those with PTSD to suffer nightmares or flashbacks in which the person suddenly and vividly re-lives the traumatic event in a repetitive manner. Known as re-experiencing, it can enter dreams or come on suddenly in waking images or sensations of physical and emotional pain and fear. It may cause both children and adult sufferers to have sleeping difficulties and anxiety leaving the safety of home. These symptoms can be extremely terrifying for the individual, because they are reliving their trauma all over again. These nightmares or flashbacks can be triggered by something whether its thoughts, smells, something someone said, or a noise.
3. Depression or Anxiety
Mental phobias, which professionals deem as irrational and persistent fear and avoidance of certain objects or situations can cause extreme anxiety in PTSD sufferers to the point where it causes paranoia and depression.
Both adults and children with PTSD who also have solid social lives and interests may suddenly lose interest in their favorite hobbies, activities, and friends that they used to be very passionate about. Seeking out risky behavior can also be a form of escapism through drug or alcohol abuse, or thrill seeking. 5. Avoidance Avoidance of any physical or mental stimuli that reminds them of a past traumatic event can be a typical symptom of PTSD. For example, those involved in tragic car collisions may avoid driving and commuting in a car. PTSD can also cause particular avoidance of places or people that remind you of the traumatic experience.
Repression, or the intentional blockage of memories associated with a past event or experience, is also a symptom of PTSD. The person may destroy pictures or memorabilia of a time in their life or attempt to distracting themselves by throwing themselves into work.
6. Emotional Numbing
It is very common for those with PTSD to try to numb their feelings because it is hard to suffer pain when you do not feel any emotion at all. Emotional numbing often leads to the gradual withdrawal and eventually complete isolation from social circles.
It is common for people with PTSD to suffer jitters so severe that it becomes impossible to relax due to the fear of threats. These individuals can be characterized as “on edge” and “jumpy” or easily frightened. Arousal symptoms are usually constant, instead of being triggered by something that brings back memories of the traumatic event. They can make the person feel stressed and angry. These symptoms may make it hard to do daily tasks, such as sleeping, eating, or concentrating.
This state of constant fear and paranoia can cause extreme PTSD-associated irritability, indecisiveness, and a total lack of concentration, sleeplessness, and difficulty maintaining personal relationships.
9. Guilt and Shame
Those PTSD patients who can’t get past their negative experience may find it difficult to move forward and maintain a healthy life. They may blame themselves and constantly relive the event, wondering how they could have prevented it. Often, immense shame and guilt will set in if they blame themselves for the tragedy.
The above list of PTSD symptoms is not exhaustive. If you think you are experiencing PTSD, you need to seek care from a healthcare professional even if your symptoms are different than those listed here.
Section 10(f) Annual Adjustments
Prior to October 1 each year, the Office of Workers’ Compensation Programs (OWCP) issues notice of adjustments to minimum/maximum compensation rates, national average weekly wage (NAWW), and Section 10(f) and 10(h) adjustments. These new rates become effective on October 1st. On September 9, 2022, the OWCP issued notice No. 194. The new rates effective from October 1, 2022 through September 30, 2023 are:
- Minimum compensation rate is $458.50;
- Maximum compensation rate is $1,833.98;
- NAWW is $916.99;
- Section 10(f) and 10(h) adjustment is 6.2% with a cutoff at 5%.
A worker seeking employment after a Defense Base Act injury will have a pre-existing medical condition that may make it difficult to find work overseas. If a work-related injury prevents deployment, the injured worker may qualify for permanent disability benefits. However, the employee will have to meet certain eligibility requirements before he or she can collect payment for a non-deployable medical condition.
Non-Deployable Medical Conditions Under the Defense Base Act
Employees working with the Department of Defense are required to be medically and psychologically fit to perform the duties required under the contract. While a pre-existing medical condition does not necessarily disqualify a worker from resuming overseas employment, a medical evaluation must be done to determine the effects that the climate, job duties, nature of the work, or operational conditions of the deployment location will have on the injured employee.
Before a worker may be deployed overseas, the Department of Defense requires that his or her medical condition must be:
- A pre-deployment medical evaluator must be willing to state that the condition is not reasonably likely to worsen during deployment (taking into account the work environment, daily duties, and contractor-provided medical care available in-theater) and not require any personal accommodations or impose work limitations.
- Not life-threatening. The condition must be of a nature that, if worsening occurs, the aggravation of the injury will not likely have life-threatening effects or have a negative impact on the mission.
- Treatable in-theater. A worker’s ongoing treatment for the condition must (including medications, routine visits, and physical therapy) be available and accessible at the deployment location. In addition, medications needed for treatment must not have special handling requirements, such as a need for refrigeration.
If you or someone you love has suffered an injury while working overseas, you should speak to an attorney as soon as possible about your rights to benefits and recovery under the Defense Base Act. To learn if your employer could be liable for medical costs, income replacement, and death benefits, please feel free to search our library articles or read through our free book, DBA Resource Guide.
Under federal law, defense contractors are required to provide workers’ compensation insurance through the Defense Base Act (DBA) for all employees. Coverage should extend to all types of employees, from construction workers and security guards to translators and service workers. In addition, the War Hazards Compensation Act (WHCA) provides benefits to workers who are performing necessary jobs for the government but are ineligible for DBA benefits.
One of these programs could provide compensation for:
- Gunshot wounds. The DBA should pay for necessary medical treatment, loss of earnings, and disability for any injury that is related to your federal contractor employment, including gunfire and complications of gunshot wounds.
- The WHCA has a special provision for injuries caused by the discharge or explosion of munitions, collision of aircraft or water vessels, or other serious injuries that are more likely to occur in war zones.
- Combat stress. The DBA provides payment for post-traumatic stress disorder (PTSD), depression, anxiety and other psychological injuries resulting from an overseas injury, even if you were injured as a non-combat participant.
- Wrongful death. Both the DBA and WHCA provide benefits to children and spouses of civilian employees who are killed while working under a federal government contract.
What will I have to prove in order to recover DBA benefits if I have a previous injury or condition?
In order to recover DBA benefits, all you have to prove is that you had an increase in symptoms due to the new DBA injury. That’s it.
In other words, you have to prove that after you had your DBA injury, the part of your body that you injured hurt more than it did just before you were injured.
Look at it this way – why would you fail to reveal that you had a previous injury if all you have to prove in order to receive DBA benefits is an increase of symptoms?
Is there apportionment under the Defense Base Act?
No. Under the DBA you don’t apportion part of your disability or part of your medical treatment between different employers. If your previous injury, disability and/or condition was due to your working with an uncovered employer (see above); then all of your disability benefits and medical treatment are owed by your DBA employer. Cordero v. Triple A Mach. Shop, 580 F.2d 1331, 1337 (1978); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1286 (1983).
If your previous injury, disability and/or condition was due to your working with an covered employer (see above); then all of your disability benefits and medical treatment are owed by one employer and which employer that is, is determined by the last responsible employer rule.
What is the “double recovery rule”?
The exception to all of this is the double recovery rule. If you have received compensation for a previous injury, disability and/or medical condition under either the Longshore Act/ Defense Base Act or a state workers’ compensation award, then the DBA insurance company will get a credit for this previous award.
Injured employees shouldn’t be asked to go out of their way to see the insurance company doctor.
Unfortunately, insurers routinely ask employees to do just that by scheduling a Defense Base Act medical examination a long distance from the employee’s home.
By law, the employee must attend a special medical examination in a place designated by the employer. The law does provide that the place of examination be a “reasonable” distance for the employee to travel, but the definition of “reasonable” can vary widely.
Factors That Can Affect Traveling to a Defense Medical Exam
Employers and insurers know that making a long trek to a medical exam will be difficult for the employee, and often use this to their advantage. If the employee does not attend the exam, he will be barred from receiving benefits, saving the company money. If the employee is able to make the trip outside his geographic area to the doctor’s office, the insurance company can argue that the employee’s injuries must not have been that bad.
There may be a way to avoid traveling long distances to your DBA examination. It is important to consider the following before accepting an examination date:
Method of Travel:
You cannot be asked to travel long distances if doing so would aggravate your injury. If your condition prevents you from traveling in a plane or driving for long periods, the judge in your case may instruct the insurer to choose a location closer to your home.
The insurance company is responsible for paying the costs of your examination, as well as the costs of travel to and from the appointment. Sometimes this is paid in advance, but it can also be reimbursed if the employee fronts the cost. If an employee is under significant financial hardship and the insurance company will not pay travel expenses up front, the employee may be able to appeal to a judge for a closer appointment.
Hiring an attorney:
If there is not a sufficiently good reason for you to travel to the doctor that the insurer has chosen, your attorney can fight to get the appointment rescheduled for you. Your lawyer can also attend the appointment with you to make sure your rights are respected.
It is vital that claimants have as much information as possible in order to win compensation for their injuries. Click here to read through our free book on DBA claims, Win Your Defense Base Act Case.
3 Questions About DBA Case Confidentiality Answered
Who can see my DBA case file?
Your employer, the employer’s insurance carrier, and administrators at the DOL may access your case file only for matters relating to your claim. In addition, you can receive one copy of your case file for your own records free of charge. Under the Privacy Act of 1974, the DOL cannot release any claim information to additional parties without written authorization from the claimant.
With whom can my employer share information about my injury?
Your employer has to share some information about your accident with the company insurance agent in order to process your DBA payments. Your employer may also be required to release certain details to the DOL and has the option of discussing the case with an attorney. An employer who shares protected information with anyone beyond these parties could be subject to legal action.
What if my employer retaliates against me for filing a claim?
Under the provisions of the Longshore and Harbor Workers Compensation Act (LHWCA), it is illegal for an employer to terminate, demote, or discriminate against any employee for filing an injury compensation claim. It is also illegal for an employer to retaliate against an employee who is giving testimony in an LWHCA hearing. Employers can only terminate or refuse to hire an employee who has a history of willfully filing false injury or benefit claims.
The Terms of Your DBA Settlement May Also Be Confidential
In some cases, workers can pursue legal action for unpaid DBA benefits and keep the details of the settlement confidential. To find out more about getting maximum payment for a DBA injury, read through a free copy of our guide, Win Your Defense Base Act Case.