Filmmaker Greg Lovett said he did not want to make a depressing movie about burn pits in Afghanistan and Iraq. “I just wanted to present the facts, and the facts are depressing,” he said.
During these conflicts, rather than dispose of waste safely, commanders ordered it to be burned in huge, open-air pits where the fires often raged 24/7/365. Jessey Baca, who was an aircraft mechanic at Joint Base Balad and was recently diagnosed with a rare and serious respiratory ailment, spoke openly about the conditions. “The smell would burn your eyes, burn your throat,” he recalled. U.S. Sen. Tom Udall (D-NM), who was featured in the documentary and was instrumental in creating the burn pit registry, called burn pits the Agent Orange of this generation. KBR is currently fighting a lawsuit from sick returning contractors who say that their exposure to burn pits caused their illnesses, a claim that is backed up by a number of prominent doctors.
In a related development, Rep. Raul Ruiz, M.D. (D-CA) has demanded that both the Armed Services Committee and Veterans Affairs Committees hold additional hearings on burn pits. The request, which is co-signed by 22 of his colleagues, comes in the wake of returning veteran Jennifer Kepner’s untimely death. Ms. Kepner recently succumbed to pancreatic cancer, which may have been linked to burn pit exposure in Iraq.
Burn Pits in Southwest Asia
What may have started out as a stopgap measure during the initial phases of the Iraq and Afghanistan wars soon turned into a permanent solution, as medical waste, unexploded ordnance, rubber tires, plastics, styrofoam, and literally every other kind of trash that military bases produce wound up in large burn pits. Joint Base Balad was also known as Camp Anaconda for a very good reason. At one point, the huge open-air trench consumed some 147 tons of waste per day, which is three times more garbage than Juneau, Alaska, even though the two places had about as many inhabitants.
The thick, toxic smoke affected everyone in or around these bases, repeatedly burning their ears, noses, and throats. Many returning veterans have reported serious illnesses, including:
- Constrictive Bronchiolitis: This rare disease, which is essentially patchy scar tissue in the lungs, is usually associated only with lung transplant recipients or people who have inhaled toxic smoke. Although the fibrosis is irreversible, CB can be treated with steroids and other medications. In the near future, some emerging antifibrotic agents may be more widely available. A lung transplant may be an option in some cases.
- Idiopathic Pulmonary Fibrosis: Smoking usually causes this progressive lung disease, and the victims are usually over age 50. If IPF appears in younger and healthier people, such as former contractors in Iraq, a different kind of toxic smoke, such as the stuff emanating from burn pits, is almost always the culprit. This disease directly attacks vital cells, making it very difficult to treat.
- Cancer: According to the National Academies of Science, since many of the substances in burn pits are known to cause cancer, “it is prudent to continue investigations of cancer end points and other health outcomes that have long latency in exposed military populations.”
The Veterans Administration contends that dust caused the complained-of respiratory ailments, and that any negative effects of burn pits go away as soon as exposure stops.
Negligence Claims v. DBA Claims
Essentially, the plaintiffs in the aforementioned KBR lawsuit must establish negligence by a preponderance of the evidence, which means “more likely than not.” They have the burden of proof to show that KBR knew, or should have known, that the burn pits could have caused their injuries and that the company ignored the risk.
From an evidentiary standpoint, the bar is low in negligence cases. The bar is even lower in Defense Base Act injury compensation claims. Instead of negligence, claimants must only establish that they were hurt in an overseas war zone and their injuries bore some relationship to their service.
Put another way, a DBA claim is even easier to establish than a domestic workers’ compensation claim. Even under the broad workers’ comp laws in most states, claimants must generally prove that their injuries occurred while they were on duty and at the employer’s jobsite. DBA claims do not have these requirements. Claimants only have to prove a nexus (relationship) between job and injury. The standard under the law is whether something either caused, or if a pre-existing condition, aggravated or the need for care accelerated by the work environment.
The burn pit illnesses mentioned above are all costly to treat and nearly always require extended recovery periods and extensive physical therapy. The Defense Base Act gives victims the financial resources they need to deal with their injuries. Typically, the insurance company pays all medical expenses directly. These expenses include:
- Emergency care,
- Follow-up treatment,
- Medical devices, and
- Physical therapy.
Moreover, under the DBA, most victims can choose their own doctors, a privilege that many workers’ compensation claimants do not have.
Payment of reasonably necessary medical expenses is only part of the compensation available. To give victims and their families an income stream during their treatment and recovery, the DBA pays two-thirds of the victims’ average weekly wage until they are able to go back to work. Even if the victim is able to work a little while recovering, the DBA still pays significant lost wages benefits. If the victim cannot return to work, or must permanently accept a different kind of work, additional long term financial benefits may be available.
To learn more about the process, contact Barnett, Lerner, Karsen & Frankel, P.A.