New York Law Blog

Many veterans of the Iraq war are finding themselves being misdiagnosed with a variety of ailments instead of the one they really have: some form of Traumatic Brain Injury. Also known as varying level of concussions, soldiers are being told they have varying forms of Post Traumatic Stress Disorder instead of being diagnosed with the debilitating brain injury they more than likely have. Along with the misdiagnosis comes the incorrect disability payment leaving some of these soldiers out in the cold when in fact they need help for the brain injuries they have suffered.

Mr. [Kevin, injured in a roadside bomb attack] Owsley is part of a growing tide of combat veterans who come home from Iraq and Afghanistan with mild traumatic brain injuries, or concussions, caused by powerful explosions. As many as 300,000, or 20 percent, of combat veterans who regularly worked outside the wire, away from bases, have suffered at least one concussion, according to the latest Pentagon estimates. About half the soldiers get better within hours, days or several months and require little if any medical assistance. But tens of thousands of others have longer-term problems that can include, to varying degrees, persistent memory loss, headaches, mood swings, dizziness, hearing problems and light sensitivity.

These symptoms, which may be subtle and may not surface for weeks or months after their return, are often debilitating enough to hobble lives and livelihoods.

To this day, some veterans — it is impossible to know how many — remain unscreened, their symptoms undiagnosed. Mild brain injury was widely overlooked by the military and the veterans health system until recently.

Mr. Owsley’s request for a Purple Heart, given to troops wounded or killed in action, was denied by the military, a devastating blow. Others say that their mild brain injury entitled them only to low disability payments, or, if the diagnosis was inconclusive, to none at all.

Army scientists are working on understanding brain injuries better so that they may diagnose any issues more easily, but it may be too little too late for soldiers who have suffered severe personal injury at the hands of bomb blasts in Iraq. Misdiagnosis is also leaving many veterans unable to work, pay their bills, and provide for their families. Veterans Affairs has now stepped in for better screening procedures for those going overseas as well as those coming home.

It was not until 2006, three years into the Iraq war, that the Departments of Defense and Veterans Affairs began to pay close attention to mild traumatic brain injuries. The Pentagon last year opened the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, a clearinghouse for treatment, training, prevention, research and education. This year it is spending a record $300 million on research for traumatic brain injury and post-traumatic stress disorder.

“We are more attuned to brain injuries now,” said Lt. Col. Michael Jaffee, the director of the Defense and Veterans Brain Injury Center. “There has not been as aggressive an effort before.”

That effort begins with screening. As of May, service members who deploy longer than 30 days will undergo neurocognitive testing before leaving, to establish a baseline for changes that may occur later, and again upon returning. At the same time, soldiers in battle who lose consciousness or feel dazed after a blast or other event must be screened by a medical provider and are either approved for duty in the field, told to rest for several days on base or sent to Landstuhl for further evaluation.

And what to do if the military is neglecting some of these soldiers? Some are considering going to federal court over the issue.

When are you technically on and off the job, and is there any grey area to that? A recent case that went before the New York state court of appeals had to define the difference, and came up with a surprising ruling. A taxi driver was in his vehicle on a lunch break when a stranded motorist asked for help jump starting a dead battery. The battery exploded in the process, leaving the taxi driver blind. When filing a claim for workers compensation, a judge ruled that the injury received was on personal time seeing how the driver was on a break from his work duties. End of story, right? Well, not so after an appeal to the state.

To be compensable under New York’s Workers’ Compensation Law, an injury must have arisen both out of and in the course of employment. Here, the employer argued that the injury wasn’t compensable because the taxi driver was on a meal break at the time of the accident. The court agreed that injuries that occur during meal breaks taken off employer’s premises are generally not compensable.

However, the court noted that the general rule doesn’t apply in situations in which the nature of the job dictates the time and place of the meal, and the employee is still considered to be on the job at the time the break occurs.

The employer argued that their drivers were given explicit instructions NOT to do any repair work on their own vehicles, but the court countered with the fact that it did not apply to the drivers helping out a fellow stranded motorist. And the most interesting ruling of all?

Furthermore, when an employee in the course of employment is temporarily involved in an activity that benefits the employer, the activity falls within the scope of employment. Here, because the cab was clearly marked with the employer’s name, the assistance created a good-will benefit to the employer. The court affirmed the Board’s decision.

It just goes to show that there is a very fine line between what could be considered on and off the clock when it comes to employers, and that it never hurts to seek outside council should you feel like you have been injured surrounding your employment.

We recently compiled a list of the top ten most dangerous jobs. These are the type of jobs that lead to serious injuries or death, and they usually lead to personal injury or accidental death lawsuits. The top ten most dangerous jobs include:

Top 10 Most Dangerous Jobs

1. Logging Workers
2. Aircraft Pilots
3. Fisherman and Fishing Workers
4. Structural Iron and Steel Workers
5. Refuse and Recyclable Material Collectors
6. Farmers and Ranchers
7. Roofers
8. Electrical Power Line Installers/Repairers
9. Driver/Sales Workers and Truck Drivers
10. Taxi Drivers and Chauffeurs