After an unprecedented and challenging year, M-VETS reflects on the resilience of its student-advisors and staff continuing to provide legal assistance to the military community during a global pandemic. Like the rest of society, clinic operations went virtual in March 2020. Having established remote operating procedures prior to the pandemic, M-VETS was able to quickly and efficiently transition to remote status. Student-advisors overcame many challenges in the virtual clinic environment to ensure continuity of services and representation. Over the year, 24 student-advisors completed nearly 3,000 hours of total client work, providing the private market value equivalent of over $670,000 in pro bono legal services to the military community in 2020. Thank you to all our student-advisors, administrative and support staff, and benefactors who made it possible for our clinic to continue serving our veterans and service members, even during a most challenging period. We wish our students, alumni, colleagues and the entire military community a Happy New Year and hope that 2021 brings peace and healing to us all.
Since its inception in 2004, M-VETS has served nearly 200 clients and provided the equivalent of over $4.1 million in pro bono legal services. M-VETS provides free legal representation to veterans, active duty servicemembers, and their families while allowing law students to gain practical legal experience under the supervision of practicing attorneys. M-VETS provides representation in a variety of matters including Virginia civil litigation matters, uncontested divorces, consumer protection matters, wills and powers of attorney, as well as assisting with matters before the VA and various administrative boards, including discharge upgrades, record corrections, military pay and entitlement matters, and VA disability benefit appeals.
CASE VICTORY HIGHLIGHTS:
M-VETS Assists Air Force Reservist in Securing Return of Security Deposit
(Pictured: M-VETS Student-Advisor Jonathan Moeller)
The Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) assisted an Air Force Reservist with securing the return of his $3,300 security deposit wrongfully withheld by his Landlord. After the Reservist was separated from active duty in late 2019, he provided notice to his Landlord of his intent to terminate his lease early pursuant to the provisions of the Servicemembers Civil Relief Act (“SCRA”), which permits service members to terminate residential leases early without penalty after a permanent change of station or separation from active duty. Pursuant to the terms of the lease, the Landlord was required to return the security deposit, or an itemization of deductions from the security deposit, within 45 days of the termination of the tenancy. The Landlord failed to return the security deposit or an itemization of damages.
The Reservist sought the assistance of M-VETS to secure the return of his deposit. M-VETS Student Advisor Jonathan Moeller drafted a demand letter to the Landlord outlining the Reservist’s legal entitlement to the security deposit. As a result, the entire $3,300 security deposit was returned to the Reservist without bringing suit against the Landlord.
“I couldn’t have been more impressed by [Jonathan’s] professionalism and the dedication he displayed to resolving the issue with my Landlord,” said the Reservist. “Jonathan provided timely feedback, always provided me with multiple options to consider, and made himself available even after hours to address questions/concerns I had. I couldn’t be more thankful for the service M-VETS provides and I’d gladly trust Jonathan to handle any issues I was facing in the future.”
“We are very thankful to be able to deliver a successful outcome to our client without having to resort to litigation,” said Leigh Winstead, M-VETS Deputy Director. “It is rare that we reach a resolution so quickly and without filing a lawsuit, but we are happy to deliver the desired outcome to our client and close this chapter for their family in an expedient manner.” Winstead said.
M-VETS Prevails for Veteran at the Air Force Discharge Review Board
The Mason Veterans and Servicemembers Legal Clinic (M-VETS) successfully argued before the Air Force Discharge Review Board (AFDRB) on behalf of a client seeking to receive a change in the narrative reason for separation on a DD 214. The request, filed in 2018, was unanimously approved by the voting members of the AFDRB. The veteran will now be able to rejoin the military if desired.
The veteran was discharged from the U.S. Air Force in 2011 with an Honorable conditions discharge while the narrative reason for separation on the DD 214 stated, “Failure to Complete a Course of Instruction.” The DD 214 has been changed by the AFDRB to reflect the narrative reason for separation as “Secretarial Authority.”
A few months after the veteran’s discharge, the command responsible for the discharge was investigated for training discrepancies and leadership concerns. A Command Directed Investigation (CDI) concluded there was misconduct and unprofessional behavior by the commander. The AFDRB determined that the commander’s actions were arbitrary and capricious, which was substantiated by the CDI. Further, the AFDRB determined that actions by the commander constituted a clear abuse of authority and contributed to the decision to discharge the veteran and to the narrative reason for discharge. The AFDRB ruled that an inequity existed and relief was warranted!
M-VETS Director, Timothy M. MacArthur, stated about the matter: “I’m glad the veteran reached out to M-VETS and we were able to assist with this issue. Our client served honorably in the Air Force and was the victim of a toxic command. This was an important victory as the stigma of a negative narrative reason for separation can persist throughout the rest of a veteran’s lifetime.” MacArthur continued, “In my opinion, the designation of Secretarial Authority is significant in correcting this injustice as the Air Force acknowledged the mistake and provided a positive narrative reason for separation. Due to the lengthy process involved with litigating this issue, many M-VETS Student-Advisors worked diligently on this matter while in the clinic and their hard work paid off.”
“This news feels amazing. Not only is joining the National Guard or Reserves now an option, but I feel some restoration of dignity. What I knew to be true has now been confirmed in a unanimous vote by my Air Force peers,” said the veteran.
M-VETS Wins $55,000.00 in Disability Compensation for Retired Air Force Veteran
The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) secured Department of Veterans Affairs (DVA) disability compensation for a retired U.S. Air Force veteran. M-VETS argued in a brief before the Board of Veterans’ Appeals the veteran was entitled to service connection and disability payments for a condition caused by military service. While the DVA had previously denied disability compensation to the veteran for this condition, they agreed with the argument made by M-VETS and reversed their original denial for disability benefits for this condition. The initial disability payment for this condition was $55,000.00 with an additional monthly award of $3,200.00. The monthly disability payment will continue for the rest of the veteran’s lifetime.
“I can’t thank the student-advisors enough for all the work they did on my case, it is appreciated!” said the veteran. “I am glad the veteran reached out to M-VETS and that we were able to help out.” Timothy MacArthur, M-VETS Director said. “We have been working to resolve this issue since 2017 so many student-advisors were able to assist with this veteran’s matter and gain invaluable legal experience while in M-VETS. I am really pleased with the outcome and want to thank our student-advisors for the wonderful job they did on this matter as well as our client for working with us the last three years,” MacArthur said.
M-VETS Helps a Survivor of Military Sexual Trauma Clear Erroneous UCMJ Titling Decision
In July 2020, the Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) successfully cleared the name of a survivor of military sexual trauma from the Army Crimes Records Center (CRC) database. The survivor is an Army veteran who served on active duty in the 1990s. Two of her fellow soldiers sexually assaulted her while she was on active duty and she was titled with False Swearing and Sodomy in connection with the attacks.
The survivor reported that she was sexually assaulted and was provided a medical examination at the local military hospital. After the medical exam was completed, special agents from the Army Criminal Investigation Command (CID) questioned the survivor about the sexual assaults. Subsequently, the CID agents questioned the two soldiers about the sexual assaults, which they claimed were consensual encounters. Although the criminal investigation would continue for months, after concluding their initial interviews, the CID agents stated they did not believe the survivor and summarily titled her under the Uniform Code of Military Justice for False Swearing and Sodomy.
A few weeks after the criminal investigation began, one of the soldiers who attacked the survivor changed his story and confessed to CID agents that the survivor had not consented to the acts that night and he, in fact, had sexually assaulted her. Further, there were no criminal or administrative actions taken against the survivor. She served out the remainder of her time on active duty and was honorably discharged from the Army. The survivor moved to Virginia in 2014 and eventually applied to receive her nursing license. Unfortunately, her application was delayed because she had been titled in the CRC database for False Swearing and Sodomy in 1991. Shocked that her name was in this database, the survivor sought out the help of M-VETS.
“M-VETS never gave up during this process and told me they would continue to fight for me and do whatever they could to help. They kept their promise. It made me feel so much better when I actually heard in their voices how unfair they felt I had been treated. They were always professional, but I could tell they cared,” said the survivor. “I expected the students would do a good job, but having dealt with lawyers in the past, I never expected such a fine argument. It was very impressive and obviously made the difference in granting my request. What they did to help me means more than any amount of money. I can breathe now and continue the process to get my Virginia nursing license!”
“I am glad our client reached out to us for legal help,” said M-VETS Director Timothy MacArthur. “The titling process in the military has the potential to negatively affect a person’s life even if they were never charged with or found guilty of a crime. The military views the titling process as an operational process and not a legal process. Once you have been titled with an offense in the CRC system, it is practically impossible to remove your name from that system. This is what was happening to our client and fortunately we were able to help her out and clear her name from the database,” MacArthur said.
“The titling process changed in 1992 and prior to that time the evidentiary standard to title someone as a subject of an investigation was probable cause,” MacArthur explained. “Thankfully, we were able to petition the Army CID command and convince them that there was not probable cause at the time to title the survivor with those offenses and they agreed. This matter took over three years to successfully resolve and five M-VETS student-advisors were able to help our client clear her name. This should allow the process for her application for a Virginia nursing license to continue unimpeded. I’m proud of the work our student-advisors put into this matter and want to thank them for all their efforts,” MacArthur continued.
M-VETS SPOTLIGHTS ALUMNI SERVING OUR COUNTRY:
Many of the over 200 M-VETS Student Advisors and other Scalia Law Alumni have served in our armed forces, including the JAG Corps of various military branches. Alumni have also established careers with the Board of Veterans Appeals, Department of Defense, and other government agencies. Below, we spotlight several of these accomplished Scalia Law graduates:
Bonnie Kelly: Scalia Law `18 (M-VETS Student-Advisor 2017)
Bonnie Kelly has been an attorney at the Board of Veterans’ Appeals since June 2019. Ms. Kelly, who graduated from Scalia Law in 2018, completed her degree as a part-time student while simultaneously teaching high school Economics full-time. Prior to law school, she received undergraduate degrees in History and Social Science Education from Florida State University and a master’s degree from the University of Delaware in Economic Education. Dubbing law her “third career,” Ms. Kelly spent four years doing association management and 16 years as a high school teacher. While at Scalia Law, she was an M-VETS Student-Advisor for two semesters in 2017. Reflecting on her time with M-VETS, Ms. Kelly notes that she enjoyed the exposure to the variety of cases that the clinic offered. Additionally, she credits M-VETS with introducing her to Veteran’s Law, which ultimately led her to begin a career continuing to serve veterans at the Board of Veterans’ Appeals.
Scott Schenking: Scalia Law `17 (M-VETS Student-Advisor 2016)
Scott Schenking, who graduated from Scalia Law in 2017, was an M-VETS Student-Advisor for two semesters in 2016. Prior to earning his law degree, Mr. Schenking served in the Army for 20 years and retired as a Lieutenant Colonel. During his time with the Army, he served as a military attaché in the U.S. Embassy in the Netherlands and the U.S. Embassy in Bosnia-Herzegovina. Mr. Schenking also served as a policy advisor on the Western Balkans for the Chairman of the Joint Chiefs of Staff during the time that that United States recognized Kosovo as an independent country. Mr. Schenking earned a bachelor’s degree in Business Administration from Loyola University in Baltimore, Maryland and a master’s degree in International Relations from the University of South Carolina. After graduating from Scalia Law, Mr. Schenking clerked in Maryland’s 6th Circuit before working briefly with law firm Offit Kurman. He then moved to Florida where he opened a private practice focused on providing legal services to veterans, although he now spends most of his time focusing on estate planning and family law. Mr. Schenking’s favorite part of M-VETS was getting hands-on experience while participating in a hearing, which taught him the high level of preparation needed to successfully represent clients. Additionally, Mr. Schenking learned the value of being a supportive advocate in the veteran community. “Once you have them on the phone,” he says, “they are relying on you for more than just legal advice.”
COMMUNITY PARTNERSHIPS: AMERICAN LEGION POST 139
In order to assist a greater number of veterans and to expand its scope of services, M-VETS is continuing its partnership with American Legion Post 139 to provide free legal services in the newly renovated Post headquarters housed in the Lucille and Bruce Terwilliger Place, an affordable housing complex spearheaded by the Arlington Partnership for Affordable Housing. The project, slated to be completed in 2022, will provide 160 affordable apartments, half of which will be reserved for veteran-tenants, as well as a modern, 6,000-square-foot facility to house the new American Legion Post 139 headquarters. The American Legion has agreed to provide a dedicated M-VETS office in the new space.
In order to staff the new M-VETS outpost co-located in the American Legion’s new headquarters, M-VETS has begun a capital campaign to seek funding to hire a staff attorney dedicated to providing walk-in legal services, direct representation in VA/military matters and Virginia criminal/traffic cases, while also supervising law students in these practice areas. With the addition a second full-time attorney in 2016, M-VETS increased total clinic production by 67% and hopes to see a similar significant increase in its ability to help the military community with the addition of a third full-time staff attorney.
STUDENT BLOG HIGHLIGHTS:
“Outmoded and at Odds with Current Science:” Updating U.S. Military Policy on Servicemembers Living with HIV
By Spring 2020 M-VETS Student-Advisor Holly Kresge
Since the introduction of the human immunodeficiency virus (“HIV”) to the United States in the 1970s, the medical field has made significant advancements in the treatment of HIV. Prior to the 1990s, testing positive for HIV almost certainly led to death. However, people living with HIV today can live nearly as long as their HIV-negative counterparts. Unfortunately, stigma and misinformation about HIV persist despite medical advances and educational campaigns. Such misinformation permeates current U.S. Department of Defense (“DoD”) policy and the individual polices of the branches of the U.S. Armed Forces, negatively impacting servicemembers living with HIV.
Current HIV Treatment
When infected with HIV, the virus attacks the individual body’s immune system and makes them more likely to contract infections and other serious illnesses or conditions. If untreated over a period of time, HIV can weaken the immune so significantly that the cells in the body are unable to fight diseases and infections, leading to acquired immunodeficiency syndrome (“AIDS”). Even without treatment, transmission of HIV is quite rare in comparison to other viruses, like influenza or coronavirus. HIV can be transmitted to another person through certain types of bodily fluids and only when the fluids are in contact with the blood stream or through sexual activity. In addition to the few avenues for transmission, the actual risk of transmission is relatively low in cases of sexual activity or needle sharing. Blood transfusions pose a high risk for HIV transmission, but HIV-positive individuals are prohibited from donating blood, even in the military.
While no cure is available for HIV, the development of a combination of antiretrovirals in the mid-1990s created significant treatment measures to allow people living with HIV to have relatively healthy and normal lives. Antiretroviral therapy (“ART”) acts to reduce the viral load, or the amount of HIV, in a person’s body. When an HIV-positive individual adheres to ART treatment, their viral load “becomes ‘suppressed within several months and the virus reaches ‘undetectable’ levels shortly thereafter, meaning there are less than 50 virus copies per milliliter of blood.” Upon reaching undetectable levels of viral load, HIV-positive individuals are effectively no longer able to transmit the virus to other individuals through any means other than blood transfusions. Currently, ART is administered through one or two tablets taken daily by 75% to 80% of people living with HIV. The ART pills “have no special handling or storage requirements[,]…tolerate extreme temperatures[,]…have minimal side effects and impose no dietary restrictions.” As such, many people living with HIV are able to take a simple daily medication, which allows them to enjoy a healthy, long life.
DoD Policies on Servicemembers Living with HIV
Initially, anyone who tests positive for HIV is barred from entering the military through enlistment or commission, as the presence of HIV is a disqualifying medical condition under DoD Instruction (“DoDI”) 6130.03. Once a member of the Armed Forces, a servicemember who tests positive for HIV cannot be involuntarily discharged solely for their HIV-positive status, unless they are unable to perform their military duties.
However, this policy can lead to involuntary discharge based on HIV status alone under the DoD’s “deploy or get out” policy. Under DoDI 1332.45, the DoD instituted policy begin administratively separating or referring servicemembers to the Disability Evaluation System who are “considered non-deployable for more than 12 consecutive months.” Furthermore, the DoD specifically designated HIV as a “medical condition usually precluding contingency deployment.” The DoD based this preclusion as “due to the potential lack of access to needed medical care or medication in austere environments, as well as the military risks inherent in the mission assigned that could lead to illness exacerbation and compromise unit readiness and mission completion.” Those HIV-positive servicemembers must obtain a waiver in order to deploy, which may be granted upon a medical assessment of the “climate, altitude, rations, housing, duty assignment, and medical services available in theater.” Therefore, if an HIV-positive servicemember is not granted a waiver for deployment, then that servicemember will likely be subject to an involuntary discharge under current DoD policy.
Litigation in the Fourth Circuit
Currently, two cases are pending trial in the U.S. District Courts within the Fourth Circuit concerning HIV-positive servicemembers negatively impacted by current DoD policy. In both cases, Lambda Legal and the Modern Military Association of America (“MMAA”) filed suit on behalf of current servicemembers.
In Harrison v. Esper, the U.S. Army denied Sergeant Nick Harrison a position in the Judge Advocate General (“JAG”) Corps after he tested positive for HIV upon return from his second deployment. Despite adhering to ART treatment and maintaining an undetectable viral load, the U.S. Army denied commissioning Sergeant Harrison because (1) DoDI 6130.03 and 6485.01 prohibited the commissioning of HIV-positive individuals, and (2) he was classified as non-deployable solely on his HIV-positive status. After an unsuccessful petition to the Army Board for Correction of Military Records, Harrison filed suit in the U.S. District Court for the Eastern District of Virginia with MMAA, arguing DoD and U.S. Army accession policies for people living with HIV “violate the equal protection component of the Fifth Amendment’s Due Process Clause, both on their face and as applied to Harrison.” The suit is currently pending trial in the Eastern District of Virginia.
Most recently, the U.S. Court of Appeals for the Fourth Circuit weighed in on the issue of servicemembers living with HIV. In Roe v. Esper, the U.S. Air Force attempted to involuntarily discharge two servicemembers solely based on their HIV-positive status. Both servicemembers adhered to proper ART treatment of one or two pills per day and maintained undetectable viral loads. Despite the support of their commanding officers, colleagues, and military medical professionals, the Air Force referred both servicemembers to the Disability Evaluation System, where both the Informal and Formal Physical Evaluation Boards recommended them be discharged. Upon review by the Air Force Personnel Council, the Council made nearly identical statements in both cases, asserting that the member’s HIV-positive status precludes him from deployment and because “deployability is a key factor in determining fitness for duty…and [the servicemember] belongs to a career field with a comparatively high deployment rate[,]…the Board determined he is unfit for continued military service.”
Consequently, the servicemembers brought suit for declaratory and injunctive relief in the Eastern District of Virginia to halt their discharges and challenge the military’s decisions and policies in court. In particular, the servicemembers claim “the Air Force’s discharge decisions and the military’s deployment policies violate the Administrative Procedure Act (“APA”) and the equal protection component of the Fifth Amendment’s Due Process Clause.” On February 15, 2019, the Eastern District of Virginia granted the preliminary injunction, which the Federal Government subsequently appealed to the Fourth Circuit.
Approximately a year later, the Fourth Circuit affirmed the lower court’s preliminary injunction, finding the Plaintiffs are likely to succeed on the merits of at least one claim. First, the Fourth Circuit found the Plaintiffs showed they were likely to succeed on the merits on their claim that the Air Force violated the APA by acting arbitrarily or capriciously in their discharge of the servicemembers based only on their HIV-positive status and without any individualized evaluation of their fitness for military service. DoD policy requires individualized assessments using objective evidence when determining a servicemember’s fitness for duty under the Disability Evaluation System. In this case, however, the Air Force failed to make such individualized assessments and determinations for each of the affected servicemembers. Instead, the Air Force utilized identical language for each servicemember, stating their HIV-positive status precluded them from deployments, which rendered them unfit for duty. The court found this decision inconsistent with DoD policy, which not only required individualized determinations, but also permitted medical waivers for servicemembers living with HIV to deploy. Thus, the court determined the Air Force’s discharge orders here were arbitrary and capricious under the APA.
Second, the Fourth Circuit found the Plaintiffs showed they were likely to succeed on the merits of their claim that the DoD’s deployment policies violate APA requirements in creating policy “by failing to offer an explanation that is reconcilable with scientific and medical evidence available to it.” Here, the court emphasized that the justifications for the DoD’s HIV-positive deployment policies and effective ban are “outmoded and at odds with current science.” Countering the DoD’s argument that HIV requires ‘highly specialized’ treatment, the court highlighted that current ART treatments of single daily pills with no special storage requirements can be prescribed in the same manner the military does for other manageable chronic conditions. Furthermore, medical evidence shows that disruption of ART treatment causes no immediate negative health impacts, and will take weeks for a person’s viral load to return to detectable levels. Lastly, the court dismissed the military’s concerns of battlefield blood exposure and blood transfusions, pointing to the low risk of any HIV transmission and the DoD’s own policy of not allowing HIV-positive servicemembers to donate blood for transfusions. Therefore, the court found the government failed to follow APA requirements to articulate a satisfactory explanation for the HIV-positive deployment policy when it was adopted.
Based on these findings, the Fourth Circuit affirmed the district court’s preliminary injunction, barring the DoD and the Air Force from discharging these servicemembers, and those similarly situated, based solely on their HIV-positive status. As of April 2020, the DoD has not chosen at this time to appeal the Fourth Circuit’s decision. Currently, the case is pending trial in the Eastern District of Virginia with companion case, Harrison v. Esper.
The Need for Updated DoD Policy
As evidenced in the Fourth Circuit’s opinion in Roe v. Esper, current DoD policy regarding servicemembers living with HIV is significantly outdated. The original justification for prohibiting the enlistment and deployment of people living with HIV cannot be upheld with the advancement of ART treatment and low risk of HIV-positive servicemembers with suppressed viral loads to transmit the virus to their fellow soldiers. Discharging otherwise healthy and fit servicemembers solely based on their HIV-positive status is not only discriminatory and stigmatizing, but also counterintuitive to the core philosophy and purpose of military service. As such, the DoD needs to update its policies to better align with modern science and allow servicemembers living with HIV to continue their military service.
Workers’ Compensation Benefits for PTSD – Why Legislative Reform Is Needed to Protect Frontline Health Workers
By Spring 2020 M-VETS Student Advisor Joshua McKenney
In the wake of the global COVID-19 pandemic, frontline health workers around the world are receiving well-deserved social recognition for their efforts. But it is necessary that the law reflect equal recognition for these frontline health workers who place themselves at risk in service to their communities. Specifically, these workers are experiencing numerous psychological stressors during this pandemic that place them at high risk for developing mental health conditions such as posttraumatic stress disorder (“PTSD”). And unfortunately, the law in Virginia regarding compensation for workers struggling with job-related mental health conditions is inadequate to address this concern.
Recent Legislative Reforms in Recognition of Mental Health Conditions
A growing number of states including Colorado, Connecticut, Florida, Louisiana, Minnesota, Texas, and Vermont have passed legislation to provide workers’ compensation to first responders suffering from PTSD. Virginia joined this trend in February of 2020. The Virginia House and Senate passed two bills, House Bill 438 and Senate Bill 561, both aimed toward recognizing PTSD as an occupational disease. This would allow those affected to seek treatment and workers’ compensation. Those bills passed and became law on April 22, 2020. However, these reform efforts are too narrow. The drafting of these bills was urged in part by the Director of Government Relations for Virginia Professional Firefighters. And the scope of the legislation reflects this. It specifically allows workers’ compensation to be awarded to qualifying law-enforcement officers and firefighters suffering from a mental health condition as the result of a traumatic event occurring in the line of duty on or after July 1, 2020.
Virginia has the same problem that many jurisdictions have. It has taken important steps in the right direction, but reform efforts are too restrictive. A second example can be found in Connecticut where a bill permitted workers’ compensation benefits related to mental health conditions for police officers but not paramedics. Some of these laws, as is the case in Virginia, also fail to consider the cumulative effect of traumatic events. Diagnoses are limited to PTSD resulting from a single qualifying event. While these legislative efforts show that progress can be made, it also reveals a tendency to underestimate and oversimplify the issue of job-related mental health conditions.
Contemporary Problems Caused By COVID-19 and the Need To Protect Mental Health
While the sense of normalcy has shifted across the world, this shift is especially apparent and dangerous in health systems. Dr. Shaili Jain, the Medical Director of the Primary Care-Behavioral Health Team at VA Palo Alto, described health workers as standing on the “frontline in the global war on COVID-19.” The patient population has increased, more patients are seen in critical condition, and there is a shortage of necessary protective equipment. Breaks are sometimes not possible with critically ill patients, and health workers struggle to balance the need for social distancing against the need for self-care through traditional support networks. One DC nurse expressed concern that nurses may suffer from PTSD going forward. Dr. Jain further stressed that the impact of this pandemic on large numbers of essential workers over a short period is concerning and stressors could lead to “mass traumatization.”
This concern highlights that the current COVID-19 pandemic is not only an unprecedented strain on health systems, but it also represents an unprecedented strain on the mental health of frontline workers. According to the National Center for PTSD, health workers treating COVID-19 patients are exposed to stressors including constant awareness and vigilance regarding control procedures, isolation, increased daily workload, and external stigma regarding health workers. An article from The Independent cites the usual ratio of nurses to patients in the UK’s National Health System (“NHS”) as 1:1. Now, it is 1:6. Health workers are doing whatever they can, sometimes at the expense of their own wellbeing. This is both laudable and concerning because health workers may continue to work despite experiencing symptoms of a mental health condition. Like many first responders and servicemembers, health workers tend to be service-oriented. With the fear of removal at such a critical time, many health workers may postpone or forgo seeking the psychological support they need. Such delay could lead to worsening mental health conditions in frontline health workers over time. Employers should therefore expect a “readjustment period” after treating COVID-19 patients, and the National Center for PTSD recommends that health workers consider formal treatment for stress lasting longer than two to three weeks. Although most frontline health workers will recover naturally from the psychological toll of the pandemic, many will not.
For those who do not recover naturally, it is necessary to seek medical treatment. Mental health conditions, particularly PTSD, can dramatically impact a person’s life. If left untreated, PTSD is often accompanied by addiction, depression, suicide, and an increased risk for heart disease. And unfortunately, PTSD is a well-established consequence for health workers in disease outbreaks. A case study from doctors working through the 2014 – 2016 Ebola outbreak described stressors including the death of colleagues, the high stakes that do not allow time for grieving and processing emotions, and isolation measures which cut off traditional support systems. Frontline health workers in the current pandemic face these same stressors and share the heightened risk of developing a mental health condition. The first step is to ensure that immediate resources are available for personal safety. But a long-term, systematic response is necessary to identify vulnerable subgroups and offer psychological treatment if necessary. While effective psychological therapies exist, the burden of obtaining needed relief should not be shifted to frontline health workers. Sympathy for these health workers is not enough. Virginia must ensure a long-term, well-funded commitment to support these frontline health workers who put themselves at risk to protect their communities. The first step is allowing frontline health workers to seek workers’ compensation for PTSD under the existing framework.
Legal Hurdles – Filing for Workers’ Compensation Based on PTSD
Filing for workers’ compensation in Virginia requires three basic steps. First, an employee must notify his or her employer of the injury within 30 days of its occurrence. That employee must then file a claim for benefits with the Virginia Workers’ Compensation Commission (“the Commission”) within two years of the accident causing injury. And third, the employee must seek medical treatment. This is simple enough, and these basic steps apply equally to both physical and mental injuries.
But beyond filing for compensation, receiving an award for job-related injury under the Virginia Workers’ Compensation Act (“the Act”) is much more difficult for mental health conditions than for physical injuries. Under the Act, a physical “injury” only requires showing an injury by accident arising out of and in the course of the employment or an occupational disease. For a mental health condition to be compensable under the Act, the condition must qualify as an occupational disease or as a compensable ordinary disease of life. Occupational disease is defined as a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment. Whether a condition or disease is an ordinary disease of life or an occupational disease is essentially a medical question decided by the trier of fact based on the evidence. Virginia courts have had few occasions to further define whether and how PTSD may be compensable under the Act. And in the few cases addressing the issue, the courts tend to oversimplify and undercompensate mental health conditions.
One of the earliest Virginia cases discussing the award of worker’s compensation for mental health conditions was the 1941 case of Burlington Mills Corp. v. Hagood. There, the claimant was exposed to an electric flash and a loud sound while working near an electric motor that short circuited. Although no signs of physical injury from the machine malfunction existed, the claimant was diagnosed with traumatic neurosis and awarded benefits. The Virginia Supreme Court affirmed, noting the claimant’s injury was “fairly traced to a risk which arose out of and during the course of her employment.” This case follows the traditional understanding of a compensable injury, which is an injury resulting from an occupational injury. The more complex issue of a mental health condition arising separately from a job-related injury was not addressed until much later.
In 2002, the Virginia Supreme Court in Fairfax County Fire and Rescue Dept. v. Mottram addressed the compensability of what is referred to as a mental-mental claim. Such a claim refers to a mental health condition that developed from a psychological or emotional stimulus rather than a physical accident. These claims are often the most difficult to prove due to the lack of supporting evidence and the lack of development in this area of the law. In Mottram, repeated exposure to “traumatic stressors” caused reactions in the claimant’s neurobiological systems similar to an immune reaction which the court had previously characterized as a disease under the Act. The court looked to scientific literature which described that a person undergoing conditions of acute and severe psychological trauma mobilizes neurobiological systems for the purpose of survival. The mobilization of these systems can cause long-term negative consequences manifesting as symptoms of PTSD. And because PTSD symptoms may relate to chemical or physical abnormalities in the body, it is therefore properly considered a disease under the Act. But that alone does not render PTSD a compensable condition. Although Mottram’s PTSD was considered a compensable occupational disease under the circumstances, the circumstances of each case are unique. And to complicate matters, the Virginia Supreme Court noted that PTSD could be considered an ordinary disease of life or an injury by accident under other circumstances.
Several years later in 2015, the Virginia Supreme Court clarified that physical injury is not a prerequisite to recovery for psychological injury in Virginia. Therefore, mental-mental claims may be compensable as a preliminary legal matter. But to be compensable, psychological injuries not accompanied by physical injury must be related to “a sudden shock or fright arising in the course of employment.” In practice, this requirement makes it nearly impossible for many claimants to demonstrate the causal connection between their mental health condition and job-related stressors. It further seems to require that mental health conditions originate from one single incident to be compensable. The Virginia Court of Appeal’s latest attempt to clarify this test resulted in a decision which made an already difficult hurdle perhaps insurmountable for those most at risk of developing mental health conditions as a result of their occupational duties.
In 2017, the Virginia Court of Appeals decided Hess v. Virginia State Police. In Hess, a 10-year veteran of the Virginia State Police was denied compensation for PTSD which resulted from responding to a particularly gruesome auto accident. In Virginia, the court opined, the types of events giving rise to purely psychological but still compensable injuries are consistently described as shocking and unexpected. The court asserted that the claimant’s presence at a fatal auto accident as a state trooper was an “unfortunately frequent” occurrence which his training and experience should have prepared him for. Although the experience was subjectively traumatic, his condition was found not to be the result of an unexpected fright.
Therefore, the nature of a claimant’s profession and requisite training can disqualify PTSD as a compensable injury in Virginia by rendering certain traumatic events as objectively expected. This ruling is difficult to square both with contemporary understandings of PTSD and with the need to protect our most vulnerable and essential populations of workers. Certain professions train employees to encounter shocking and unexpected events. And this is desirable because such training could reduce the mental health impact of such incidents on essential workers. But under Hess, such training and experience makes it more costly for these individuals to receive necessary mental health treatment despite the expectation that they will be exposed to these stressors. Under the current state of Virginia law, it is difficult to see how a frontline health worker’s claim for PTSD could succeed. In a sense, properly trained and experienced health workers are far less likely to receive compensation than an ordinary employee with less training and less exposure to risk. This cannot be what the Virginia legislature intended, and the legislation adopted on April 22 in fact demonstrates the opposite. Those reform efforts indicate a shift toward greater workers’ compensation coverage for those most at risk.
We should all be appreciative of the essential work being done by frontline health workers during this pandemic. But those workers deserve more than our appreciation. They deserve access to the resources necessary to treat any mental health conditions which may result from their service during this extraordinary period. Legislative reform is needed to ensure that those sacrificing for the benefit of their communities receive the assistance they deserve to obtain the mental health resources they need.
What Virginia Renters Need to Know About Failure to Pay Rent During the COVID-19 Pandemic
By Summer 2020 M-VETS Student Advisor Jonathan Moeller
The coronavirus has disrupted virtually every area of life. With uncertainty about the economy and thousands of Commonwealth residents out of work, many Virginians have been left wondering how they will handle their most significant monthly expense: the rent. Here’s what you need to know if you are a Virginia renter struggling to make your rent payments during the COVID-19 crisis.
Policymakers fear what might happen if thousands were suddenly homeless during the pandemic. At the beginning of the lockdowns in March, the Virginia Supreme Court ordered a moratorium on eviction hearings, which it then extended through modifications to the order several times. The court system suspended most of its operations for several months before resuming somewhat normal dockets, including eviction hearings, which started again on June 29. That day, Governor Ralph Northam started the Virginia Rent and Mortgage Relief Program with $50 million dollars supplied by the federal CARES Act, aimed at forestalling evictions and foreclosures for certain qualifying Virginians.
At the behest of Governor Northam, the Virginia Supreme Court once again amended the eviction moratorium, this time from August 10, 2020, through September 7, 2020. Citing the risk of spreading the COVID-19 virus and the difficulty in hiring lawyers and accessing the courts remotely during the pandemic, the Court found in a 4-3 decision the virus may “‘substantially endanger’ or ‘impede’ the ‘ability of [tenants] to avail themselves of the court.’”
The order places a temporary restriction on courts that effectively disallows landlords from initiating eviction proceedings for failure to pay rent. “Effective August 10, 2020, and through September 7, 2020, pursuant to Va. Code § 17.1-330, the issuance of writs of eviction pursuant to unlawful detainer actions is suspended and continued.”
Eviction Moratoriums Are Not a Get-Out-of-Rent-Free Card.
While the order offers some relief to Virginians who are behind on their rent, the eviction moratorium does not excuse a renter from paying rent. Rent continues to accumulate, and skipped rent payments will be need to be repaid eventually. For renters who cannot pay their rent, housing advocates and property owners alike recommend immediately alerting the landlord. Replacing a current tenant is a costly prospect for landlords, so landlords may be inclined to accept requests for a grace period or to set up payment plans.
Additionally, eviction hearings for issues other than rent payment are still in effect. The August 10 order states that “this suspension and continuation shall not apply to writs of eviction in unlawful detainer actions that are unrelated to failure to pay rent.” This means that a landlord may still initiate eviction proceedings for other causes, such as a tenant causing major damage to the rental unit, allowing too many guests to stay overnight, or failing to comply with other obligations under the lease. Under these circumstances, a landlord must still issue notice to the renter in the form of a Virginia Notice to Quit. The tenant will have 21 days following this notice to remedy their noncompliance with the lease, or else the lease will terminate 30 days from the notice.
The eviction moratorium ends on September 7, 2020. More relief for renters struggling to make their rent payments may be on the way. The Virginia Supreme Court may extend the order again, as it has done several times since March, or Congress may reach a deal for a rent relief plan.
In any event, renters should proactively form a plan. Renters may seek financial assistance through the Virginia Rent and Mortgage Relief Program if they have experienced a loss of income due to COVID-19, have a rent or mortgage amount that is at or below 150% Fair Market Rent, and have a gross household income at or below 80% of their area’s median income. Landlords may be inclined to create payment plans with troubled renters to avoid turnover in a volatile market. Renters should save whatever income they can to avoid falling behind on future rent payments.
If you do receive a notice from your landlord that you are being evicted, seek legal assistance. If you rent in Northern Virginia, M-VETS might be able to assist you or refer you to another pro-bono legal service that can.