This is a good article in regards to the nitty gritty of dealing with DBA ‘potential’ pitfalls, if you get injured as a contractor. I say potential, because not all contractors have had these horror stories with DBA and their dealings with AIG.
But if you are having issues with DBA, then the cool thing about this story is it has identified one of the country’s best DBA claims lawyers–Gary Pitts. His firm would be a good resource if you are coming up against some problems with your claim. -Matt
Returning War Contractors Face Second Battle, Against AIG
Whatever your role in the U.S. war effort, if you were injured overseas, at least you’d be covered back home, right?
By John Nova Lomax
Wednesday, Nov 14 2012
Ever since that June day in 2010 when the roadside bomb detonated ten feet from the cab of his truck on a dusty road in Iraq, Terry Enzweiler has not been the same. He gets lost coming back from the same grocery store he’s shopped in hundreds of times; his daughter had to buy him a GPS to help him navigate his own neighborhood. He takes Xanax and Zoloft to combat the symptoms of post-traumatic stress disorder.
“The Xanax stops me from jumping through the roof when a pencil falls on the floor,” he says.
Even medicated, his blood still curdles when he hears Arabic spoken on TV or drives through one of the Chicago area’s Muslim neighborhoods. He wore earplugs for much of the week leading up to and right through the Fourth of July. “Those half-sticks sound just like a .50-cal,” he says, referring to a type of heavy machine gun.
The chuck-chuck of helicopter blades terrifies him, as does the sight of his own 25-year-old son. In Iraq, 46-year-old Enzweiler, a recent client of Houston attorney Gary Pitts, saw a dead Iraqi child who looked just like his boy did 13 years ago. “My psychiatrist said it’s like a marriage where there’s been infidelity,” he says in a phone interview. “The wife forgives the husband. Two years later, she sees a blond woman in a blue dress. Two years prior, the other woman looked like that. So in the mind, the two images come together, and for absolutely no reason, you become furious, and your subconscious takes over. It’s the same thing now. When I see my son, I think of that kid. I saw some horribly gruesome stuff over there.”
He says he has no patience. His temper is short. He suffers from diarrhea. His blood pressure is a mess most days. He suffers from heart palpitations, and sometimes his body drags his mind where he doesn’t want it to go. “I can just sit here at the computer feeling fine, and all of a sudden I will have palpitations, and I will remember why I have them.” Suddenly he will find himself awash in a torrent of bad memories. “It’s like, ‘Gosh, I wasn’t thinking those bad thoughts, and now I am on a downward spiral.’”
He’s downright agoraphobic a lot of the time. “I can’t stand leaving the house. I can’t stand dealing with people. My social skills are atrocious.”
He says his favorite thing to do is sit at the computer playing the soul-numbing Internet-based game Mafia Wars.
“I know it’s mindless, and the reason I like it is it allows me to escape,” Enzweiler says. “My psychiatrist tells me it isn’t a good thing. He says I will have to deal with it some day.”
Enzweiler is not a military veteran but a civilian contractor, a KBR truck driver, to be exact. Like all KBR contractors, he came to Houston for orientation at the defunct Montgomery Ward store in Greenspoint Mall and eventually did three tours in Iraq, starting in 2006. Decked out in fire suit, body armor and helmet, and flanked by armed trucks of the 101st Airborne, Enzweiler drove supply trucks “outside the wire,” braving IEDs, rocket-propelled grenades and tracer fire to bring frontline troops “beans and bullets.”
“I am very proud of the fact that I served those guys over there,” he says. “When they would reach for a container of .50-cal cartridges, it was brought there by me. When they ate their food, it was brought there by me.”
And then came June 9, 2010. He navigated a checkpoint, and then a huge explosion detonated ten feet to the right of his truck. Enzweiler was knocked unconscious, his truck’s tires shredded. He came to seconds later, just in time to bring the rig safely to a halt. He had to wait by his rig for two hours, his head pounding, his back aching. Days later he was shipped off to Dubai, where he was diagnosed with PTSD. A doctor also recommended a course of anti-inflammatory drugs for his back, and he was sent home to Illinois. KBR let him go, and he eagerly awaited his hard-earned disability checks to start coming in from AIG subsidiary Chartis WorldSource.
Enzweiler’s war was over, but another one was about to begin.
“I don’t say this lightly, but I have never dealt with more dishonest, evil people than the people at AIG,” Enzweiler opines.
Along with law partner Joel Mills, Pitts has been battling the insurance behemoth AIG and its subsidiaries on behalf of civilian military contractors like Enzweiler for ten years. Pitts’s forte is the “Defense Base Act” field, and he has won more of those cases than anyone else. You imagine there might be a few dartboards at AIG HQ with his face affixed to them.
Reached on his lunch break at a Houston barbecue joint, Pitts laid out the typical process for such cases and the history of the Defense Base Act.
Enacted by Congress as America was arming for World War II in early 1941, the Defense Base Act mandates that defense contractors purchase workers’ compensation insurance for civilian workers in overseas war zones. “When Congress set this up in the World War II era, they must have known that the insurance companies were gonna be difficult to deal with,” Pitts says.
Today, Pitts says, AIG owns about 85 percent of the policies on the contractors in Iraq and Afghanistan, and he says they have been difficult to deal with in the extreme, even if they have gotten somewhat more amenable to their clients in the last couple of years. Pitts says they are more willing to settle cases than they used to be. Before the financial crash and the subsequent taxpayer bailout of AIG, Pitts says, they took virtually every single injured claimant to court, no matter how clear-cut it was that AIG needed to pay out.
“But they are still looking for a deal, obviously,” Pitts says. “But the litigation continues.”
For its part, AIG defends its business practices. In response to our query, AIG spokesman Matthew Gallagher sent the following statement:
“AIG is committed to handling every claim professionally, ethically and fairly. We provide the highest level of service to our customers and claimants, which includes the prompt adjudication and payment of claims. We do not disclose information about individual claimants or cases.”
Pitts explains a typical case. “Say you are working for Fluor in Afghanistan and you get hit with a mortar shell,” he says. “If you have a significant injury, you will be sent home, but if you need to be stabilized first, you will be sent to a military hospital in Landstuhl, Germany. Then you will be sent home, and the workers’ compensation carrier [often AIG subsidiary Chartis] and the Department of Labor will be notified of your injury. After that, your employer is out of the picture, and it’s you and your insurance company. There’s usually a big lag time. AIG will have an investigator come out and get your statement, take your photo, get a medical release, collect whatever medical papers you might have.”
Pitts says that AIG would then “very often” deny the case even with all the evidence. “And then it’s up to you to come up with more evidence supporting the fact that you suffered your injury overseas, and then we will have a prima facie case, a case based truly on its face,” he says. “Once we have that, we can request an informal conference with the Department of Labor. They’ll give us recommendations in your favor.”
According to Enzweiler, that step was utterly useless. He says the DoL’s claims adjuster wrote letters in favor of his claim to AIG and several of its subsidiaries. “The letters said, ‘You have to pay Terry Enzweiler because he was hurt on the job. According to the law, according to the insurance, you owe it to him.’ And AIG gets these letters and they can just go, ‘Pfft. Go pound sand. The only person we have to listen to is an administrative law judge.’”
Which is the next step Pitts must take. “At that point, the insurance company has 14 days to either comply or we’ll be on the way to a federal administrative law judge,” he continues. “There are 48 of them around the country hearing these kind of cases. You have to wait your turn for a trial. After that, you have to wait for your decision.”
All of this takes a long time, obviously. Enzweiler says he almost lost everything. Were it not for an Illinois state homeowners’ program, the worst would have befallen his family. “Otherwise, my wife, me and two kids would have gone to a homeless shelter.”
Pitts describes a worst-case scenario. “Early on in the war, I had a guy who got hit by a mortar in Afghanistan. He comes home, and they just ignore him. So we got the approval conference reservations; we’re on our way to a judge. During this whole process, which can take from the time you get home to the time you get a decision making the insurance company do something, we’re looking at maybe a year and a half. And during that time, you are getting nothing. No comp. Your wages have stopped. Your medical insurance gets cut off within 60 days generally.” By the time that client got paid his $100,000-plus settlement, he had been living in his car for a full six months.
“Lag time” certainly describes the process for David Boiles of Willis, Texas, another of Pitts’s former clients. A Marine who served overseas in the Vietnam era, and later a stateside big-rig driver, Boiles was a 58-year-old KBR truck convoy commander in 2006. (Boiles says convoy commanders are civilians who ride shotgun in a rig and act as liaisons between the other civilians and the military escorts. In court documents, the gruff Boiles likened the position to that of a “glorified secretary.” )
On February 20, his convoy came under insurgent attack. Boiles was in the second truck, a beat-up 23-year-old KBR 915, just behind the lead vehicle, a mine-resistant, ambush-protected “Buffalo.” “They can go through anything and just haul ass,” says Boiles in a deep East Texas drawl. His driver could not keep up in the battered 915. “My driver was doing the best he could, and there was all this dust in the road.”
And then came the end of his days in Iraq. “They blowed a hole in the goddamn road,” he says. “We bottomed out in that hole.”
The impact sent Boiles headfirst into the top of the cab. The next day, his back was throbbing with jolts of pain. On March 4, Boiles was sent home. After an X-ray, a doctor told him he had severe back injuries. (He also says that he has been told he has PTSD, but he seems loath to accept that diagnosis.)
“I had a big ol’ bulging disk, my neck hurt, my back was killin’ me, my left leg still hurts,” he said. A doctor recommended surgery to repair the disk. He would get that surgery, but only 14 months later, after a federal administrative judge ordered AIG subsidiary Insurance Company of the State of Pennsylvania to pay for it.
For the entire year-plus before the operation, Boiles had been in agonizing pain. “I was takin’ a lot of medicines, so many it’d knock me out, but I was still hurtin’. I’d lay in bed and the sheets and everything would be wet from sweat, I was hurtin’ so bad.”
Worse, Boiles was told that the surgery was approved several times before it actually came to pass. “I got snake-eyed three or four times,” he says. “I’d go down to the hospital, they’d start drawin’ blood and get ready to do the surgery, and then they’d say, ‘We have to do a ‘medical review.’” And the surgery would be postponed…again and again.
Boiles said one of the surgeons told Boiles he was walking away from operating on him. “He was so mad he told me he wasn’t gonna have anything to do with me, them or anybody else. He said there were a bunch of people at AIG who ought to be in jail for practicin’ medicine without a license. That’s what a lot of us are runnin’ into: There’s these people who go by some book that tells them what they are allowed or not allowed to do, and they are not doctors.”
Enzweiler’s story was similar, albeit focused more on his mental health than his physical well-being. Shortly after his return to the States, AIG sent an investigator around for a little chat. “We sat at my kitchen table for about two hours, and the first thing she asked me was, ‘Can you prove you were actually blown up?’”
Enzweiler laughed bitterly. Evidently AIG had not availed itself of the reams of paperwork filed on the incident. There was a KBR report. There was another from the 101st Airborne. There was an Explosive and Ordnance report and a Quick Reactionary Force report. “And they found a projectile in my vehicle,” Enzweiler says. “That conversation set the tone.”
Nevertheless, for a little more than a year after his return, Enzweiler did get treatment and benefits. He was receiving PTSD treatment with the doctor of his choice. “I was very happy with it,” he says. “I wanted it to continue. It was recommended that it be continued.”
Then, in September 2011, Enzweiler was sent to a neuropsychological evaluation with an AIG-selected doctor. “He said I was perfectly fine,” Enzweiler says. “He knew what he wanted to accomplish, and he did the best that he could. He’s entitled to his opinion, but my problem was this: He quoted me as saying that I was perfectly fine and did not have PTSD, that all I wanted to do was sit around and take college courses online and I didn’t want to go back to work. That and many other things were complete and utter lies, and I was so furious when I read his report, I called the Illinois Department of Financial and Professional Regulation and filed a complaint.” (Nothing came of Enzweiler’s complaint.)
AIG used that doctor’s assessment to file a controversion of benefits: Enzweiler was on his own. And that was when he called the office of Gary Pitts and Joel Mills. “AIG is very polite until they hear Gary Pitts’s name,” Enzweiler says.
For Pitts, these Defense Base Act cases seem like a labor of love. There’s not a huge amount of money in them, for one thing. Plaintiffs’ lawyers in these cases are paid by the insurance companies on an hourly basis and only on the contingency that they win. (They collect none of their clients’ settlements.) It’s easy to get the sense that Pitts believes he is righting wrongs.
“This is the sad part,” he says. “I’ve seen guys in their fifties move in with their mom, go on food stamps, welfare, go into Ben Taub.”
Contractors will all tell you the general public has the wrong idea about them.
“Because of TV, the public’s perception of a contractor is a drunken Blackwater guy taking a gun and blowing some Iraqi brains out,” says Enzweiler. “They don’t think of a 47-year-old potbellied guy who made bad financial decisions and only took this job because it was the only way to pay off a truck repossession.”
Eighty percent of the guys who worked with Enzweiler were in the same boat, he estimates. Public sympathy for them is minimal, and whether or not the government knows that, it works in its favor.
“There’s a political element to it,” says Pitts. “Whenever you see the war casualty numbers, they don’t include the civilian casualty numbers.”
Steven L. Schooner, a law professor at George Washington University, has written extensively on how the “ultimate sacrifice has been privatized.” Schooner believes that since they perform roles that are essentially military in nature, if not combat, contractor casualty totals should be included in official government totals.
According to his research, from 2001 through 2010, contractors accounted for more than 25 percent of the deaths in Iraq and Afghanistan (5,531 U.S. troops, 2,008 contractors). More than 44,000 contractors have been injured during that same time, 16,000 of them seriously. What’s more, those totals are likely incomplete, since they represent only the number of people for whom an insurance claim has been made.
Contractors are bearing an ever-increasing amount of the casualty burden, Schooner has found. In 2003, contractors represented one in every 25 deaths in Iraq and Afghanistan. From 2004 to 2007, that ratio lowered to one in four. From 2008 to 2010, contractors were 40 percent of the death toll, and in 2009 and 2010, their deaths exceeded those of combat troops in Iraq.
Even when the contractors are American, their deaths seldom make much of a ripple in the news media at home; dead foreign contractors (an increasing proportion of the overall force) are not mentioned at all, unless they are killed alongside one or more Americans. Schooner believes that contractor casualties skew public opinion, that these wars seem less costly because so many allegedly profit-oriented “mercenaries” are dying in place of idealistic patriots in uniform.
To Pitts, contractors are soldiers, pure and simple. In earlier wars, they would have simply been called “support units,” and he adds that no army can function without them: the truck drivers, the cooks and spud-shavers, the construction teams, interpreters and postal service.
Pitts recalls that after the First Gulf War, as a cost-cutting move, the Pentagon deemed it wise to disband a great many of these units. “We didn’t need them in peacetime, and if we had a conflict, then we could just contract them out and then use them while we needed them and it would save us a lot of money,” he says. “That was all fine and dandy as long as it worked the way they planned it, but now here we are in this long, drawn-out guerrilla war where the supply lines are the main target. We’re stuck [with a half-private army]. We could not function overseas without the contractors.”
They are also heroes, Pitts believes. “There’s never been a report of our supply lines being broken because the contractors wouldn’t go out and risk being blown up. They have been brave beyond belief — they should get a chest full of medals every time they go outside the wire.”
Pitts has championed the cause of contractors beyond courtrooms to the floor of the United States Congress, where he was invited to address the House Oversight Reform Committee, proposing a potential solution to AIG’s foot-dragging and slow paying.
“Let’s say the insurance company has a frivolous defense,” he says. You always hear about frivolous cases, right? But let’s say the insurance company has a frivolous defense, or no defense. I mean, they can just shamefacedly say, ‘Well, we are just denying the case,’ and then just not do anything, like they did with the guy living in his car who got hit by the mortar.
“At the end of the day, all the judge can make them do is what they should have done to begin with,” he continues. “There’s no penalty. There’s interest, but it’s at short-term U.S. Treasury rates, which are .02 percent or something. So the only downside for them just drawing these cases out and just using the money in the meantime — while you’re suffering, they’re getting interest and dividends on your money, right? The only downside is that they have to pay lawyers for their time in holding them down and making them pay.”
And so he proposed to Congress his solution: “If there’s a frivolous defense, why can’t you let the judge tack on a 15 percent penalty or something to hit them in the pocketbook?”
Perhaps on the grounds of unnecessary pain and suffering. Both Boiles and Enzweiler claimed that AIG’s intransigence exacerbated their conditions. Boiles said that had AIG sprung for either putting him in traction for a time or giving him an epidural steroid shot, he might never have needed surgery on his disk, and he would have been spared many, many months of agonizing pain.
The surgery was in large part a success, he says now. “That relieved a lot of pain,” he says. “I’ve still got a lot of pain down the back of my leg and into my foot, but a lot of it is relieved.” Since he now takes hydrocodone three times a day to deal with that pain, he can no longer get a commercial driver’s license. His trucking days are over, so it’s a good thing he’s now getting his disability pension.
As is Enzweiler. Even so, he seems likely to carry his grudge against AIG to the grave. “This was a gut-wrenching, horrible, horrible thing to go through. In my opinion, it only exacerbated whatever conditions I may have.
“As a Christian man, I pray that one day I will have peace, but right now I don’t.”