Scandal in Mistreatment of Silent Service Members
Wednesday, September 28, 2011 (appeared in Fed Smith, at http://www.fedsmith.com/article/3120/scandal-mistreatment-silent-service-members.html)
I like representing heroes. I did it in the federal government, helping whistleblowers who were taking it on the chin for protecting us. One of the more rewarding things I had the privilege of doing in government as U.S. Special Counsel was protecting the jobs of heroes returning from National Guard or reserve duty under USERRA. Now back in private practice, I have been privileged to protect the rights of our silent service members – private contractors who work in Iraq and Afghanistan and Kuwait in support of Operation Iraqi Freedom and Operation Enduring Freedom.
While about 150,000 troops from America have served in Afghanistan and Iraq at any given time over the last few years, we don’t hear much about the 200,000 private contractors, about 100,000 from America, the rest from England, South Africa, Australia and other countries such as Kuwait, Iraq, India, Afghanistan, South America, Uganda and so on. There have been several thousand deaths among these contractors, and over 50,000 injuries, some catastrophic, some psychological, sometimes both.
Many of them are decorated veterans of the two current wars, Operation Desert Storm, the Bosnian conflict, or Vietnam, some with purple hearts, silver and bronze stars and other combat medals and awards. Many have been in the special forces of their countries’ armed services. They believe in helping America fight terrorists and defend freedom. They have placed their lives on the line as security personnel, carrying guns, or as combat drivers, as firefighters on bases where they are attacked, bombarded by mortar fire, shot at, and subjected to extremes of war and heat, during long work days usually seven days a week. These are not “mercenaries,” with all of the negative connotations contained in the word. They are patriots.
Many of these ordinary heroes have suffered physical and mental injuries, including having their limbs blown off, contracting brain injuries from concussion blasts of roadside bombs, or severe post traumatic stress disorder from being subjected to horrifying scenes of dismemberment, death, and threats of same every day. What has the American government done for them, and what have the insurance companies being paid billions done for these men and women?
There is a system in place that is supposed to help them, like the military system in place to help injured soldiers, like the system in place to help displaced workers under USERRA, but then we saw in the Walter Reed Medical Center debacle and when I was United States Special Counsel what happens when a system breaks down and stops treating people as individuals. They become prisoners in a bureaucracy that does not stoop to help them quickly as the law requires and sometimes punishes them for seeking their benefits. Some in the system have expressed resentment that these workers who dodge bullets would earn higher pay for going to a war zone where its temperature is only outpaced by the danger.
These silent warriors are often deprived of their benefits and subjected to a torturous process of denial of claims, and a circuitous series of bureaucratic delays and bad faith mistreatment by the insurance companies and the contracting companies who have been paid by tax dollars to provide them the workers compensation insurance.
Their injuries are often grievous, involving disabling physical, mental and brain conditions. Yet the hell of war is nothing compared to the hell of dealing with a system that favors the contractors, their insurance carriers, and the difficult-to-negotiate bureaucracy that administers the benefits under the Defense Base Act by way of the Longshore and Harbor Workers Compensation Act. The law is supposed to be liberally construed to get benefits to injured employees, including disability payments to replace wages, and all medical benefits necessary to remedy the conditions.
One of the scandals of all of this leviathan process is that the taxpayer pays the premiums on this expensive workers compensation insurance, and the insurance companies can get all the money back they pay out in benefits if the injuries result from a war hazard. DynCorp, KBR/Halliburton, Blackwater, have all been hit with hundreds of millions in fines for fraud on the American people. Congress just found that CNA for one has overcharged the government $58 million for insurance because the contractors do not reimburse them for overpayments. Insurance Giant AIG has obtained 40 billion in bailouts, but just had to pay half a billion in fines for fraudulently understating insurance experience figures, and now is wreaking havoc on the lives of these brave, silent soldiers.
These insurance companies can even get a 15% rider of administrative costs and attorneys fees. Yet the companies and the insurance carriers act like these brave men and women are a bunch of loafers on the system, cheaters and deadbeats. And they play games with their lives, and the lives of their families that has caused many to be ruined, thrown out of houses, thrown out of wheelchairs, credit in the toilet and lives in shambles.
They face ridicule, delays, run arounds, abuse, and a lengthy wait in an administrative system only Kafka could have thought up. Many spend years waiting to resolve their cases while attorneys toss around arcane questions of law or medical practice. Benefits get held up, months go by with neither the contracting company, the insurance carrier or the Department of Labor acting on the case. Some people have committed suicide waiting on the process, some have given up bringing claims out of utter disgust or discouragement. Many would rather go without than deal with the punishment of the DBA.
Congress has had hearings on this, inspectors general have looked into criminal allegations against the companies and their carriers, and the people continue languishing, getting worse due to non treatment, and losing their doctors who refuse to be abused by the insurance companies like AIG or CNA or Zurich or ACE American who run the tables with their attorneys and deny benefits at the drop of a hat, and then often start them again, willy nilly.
That is why I have instituted a class action against the major defense contractors and insurance carriers to stop their illegal behavior and provide justice for these abused contractors. I have been joined by Bill Skepnek in this fight. To read the complaint or more about this problem, go here.
So the next time you hear someone call these people mercenaries, or think the injured are faking it, remember the battalions of silent warriors protecting you and me, and the horror they face on their return. These people are heroes, and their families have been forced to fight a war here at home, and they need our help, our support, and our members of Congress to do something before it’s too late.
© 2011 by Scott J. Bloch. All rights reserved. This article may not be reproduced without express written consent from Scott J. Bloch.
Scott J. Bloch was Special Counsel over the U.S. Office of Special Counsel from December of 2003 until December of 2008 and now practices law in Washington, D.C. on behalf of injured contractors, whistleblowers, and employees throughout the country and around the world.