DEFENSE BASE ACT (DBA) RADIATION CLAIMS MAY TAKE DECADES TO SHOW SYMPTOMS – Bill Ogletree

JUNE 16, 2011 by Ogletree Abbott

When someone, or their family, needs a Defense Base Act injury attorney, they may need to review years of classified, or even secret, information. Because government officials are often reluctant to release this information, regardless of the costs to the injured worker, the help of a lawyer can also speed medical care. But in the case of “CK,” the injuries were caused by radiation, and were fatal. His case shows how serious all DBA jobs can be, as civilians perform essential work, which often put them in harm’s way. In the case of CK, he worked three contract periods as a waiter and dishwasher on US South Pacific military bases.

A claim brought by CK’s widow required the persistence of a DBA lawyer to obtain information about the source of CK’s leukemia. The fundamental issue was whether the nuclear radiation CK was exposed to had caused or contributed to the fatal cancer he developed, many years later. CK’s employer and its insurer admitted the existence, but not the extent, of CK’s radiation exposure at work.

Atmospheric tests at the Pacific Proving Ground (where CK lived) were organized as a series of operations. Each operation and detonation (sometimes called a shot) had its own name. Nuclear blasts book-ended CK’s three separate work periods. Early in his career, while stationed on Enewetok Atoll on Parry Island, Operation Castle Bravo shot was detonated. During his final contract, when he was assigned to Fox Island on Bikini, Operation Redwing’s Seminole shot was detonated, just before he left employment. In all, three tests were the sources of radiation exposure CK’s DBA injury attorney presented as evidence.

Virtually all of the workers on Parry Island watched the historic Castle Bravo shot at dawn the morning of March 1, 1954. For protection, they wore dark goggles the Employer issued. The bomb was detonated on Nam Island on Bikini Atoll, about 200 miles to their east. According to a Defense Department report, introduced by the defense base injury attorney, Bravo was “without question the worst single incident of fallout exposures in the entire U.S atmospheric testing program.” Not only were U.S. military personnel involved, but also thousands of foreign nationals and Marshall Islanders …including CK.

Decades later, the DBA attorney pointed out, it was learned that the US government terribly misunderstood the nature of the hydrogen fusion bomb tested by Castle Bravo: it was the first “dry” or solid fuel device of a powerful new bomb design. Bravo’s 15 megaton explosion, it was later learned, greatly exceeded safety predictions. The blast was 2.5 times more powerful than the best guess, making it almost double the estimated maximum possible yield. Fortunately for C. K., prevailing winds from Bikini blew to the east on the morning. This spared him and the other workers there from the heaviest fallout and contamination.

The key to winning CK’s case was to be based on these unknown risks of Bravo’s radiation. The injury attorney for CK’s widow, however, had to successfully argue that there was enough available medical evidence to link CK’s leukemia to the radiation. It was also fair, the DBA compensation attorney argued, to shift the burden of proving CK’s death was at least partly due to radiation onto the insurer and the US government. A single film “dosimeter” badge had been issued to C.K. Supposedly, the badge would record all radiation exposure. But as the defense base act injury attorney proved, these records were more than four months late in being reviewed. This presented at least two major problems: (1) there had been absolutely no badge data for CK’s radiation exposure, from June to December and (2) the readings for March, when radiation from the Castle Bravo and Castle Romeo shots should have been captured, were probably wrong: after only four weeks of use, film badge captures will generally fade.

In the 1990s, a Presidential Executive Order admitted that the government had been wrong in its use of radiation data. The Order supposedly changed the Department of Energy’s policy of assisting DOD contractors in opposing valid claims for workers compensation benefits. The Court also noted the government apology, in a decision allowing CK’s widow benefits under the defense base act. But for CK’s widow, only the persistence of her defense base injury lawyer was what finally gave some justice to her late husband.

 

no comments

Comments are closed.