“The VA is responsible for my low back injury – what options do I have?” If a veteran suffers injury or death as a result of VA health care, VA vocational rehabilitation, or participation in a VA compensated work therapy program (CWT), there are two types of relief available: Federal Tort claims and Section 1151 claims. The Federal Tort Claims Act (FTCA) allows a veteran, or his or her survivors or estate, to pursue a medical malpractice claim against the VA. Alternatively, 38 U.S.C.S. 1151 allows a veteran to apply for disability compensation from the VA for that injury. Federal Tort claims and Section 1151 claims have different scopes, and therefore the use of each is different.
A Federal Tort claim is a lawsuit against the VA and applies to any situation in which a VA employee, acting on behalf of the VA, is negligent and causes injury. For example, if a negligent VA maintenance worker leaves a wrench on the stairs in a VA medical center, and a veteran trips on the wrench resulting in injury, compensatory relief is likely available under a Federal Tort. A Federal Tort can be filed by a veteran, or, in the event that the injury resulted in the death of the veteran, by his qualifying survivors or estate. If the Federal Tort is resolved favorably toward the veteran or claimant(s), the compensatory relief is paid out in a lump sum, which becomes property that can be passed on to others as part of the veteran’s estate. Because Federal Torts are lawsuits against the VA and are civil actions, they are more difficult to win. Torts require that there be a preponderance of evidence, which means that the evidence of negligence must outweigh the evidence of non-negligence that the VA will produce in its defense.
VA Section 1151 Claims
A Section 1151 claim has a much more narrow scope. The regulations define that in these cases, a veteran may apply to the VA for compensation due to injury or death proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or by “an event not reasonably foreseeable” in VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination. Section 1151 claims based on VA vocational rehabilitation participation or VA CWT do not require evidence of negligence, fault or accident. In short, Section 1151 claims only involve injury or death due to the administering of medical care, as opposed to incidents that might occur on a VA facility campus. In the example cited above, the injury incurred by tripping over the wrench would not qualify for Section 1151 because this injury was not caused by VA hospital care, medical or surgical treatment or examination.
If a Section 1151 claim is resolved in favor of the claimant, the injury or death is considered as if it were a service-connected disability. This means that the injury or condition will be rated according to the VA rating schedule, and will be compensated accordingly on a monthly basis. In the event that the Section 115 claim involved the death of the veteran, the claimant would receive Dependency and Indemnity Compensation (DIC) in a monthly benefit.
In some cases, a claimant may win a Federal Tort case and be granted Section 1151 benefits for the same disability. This would occur if the claimant filed a tort claim and a separate Section 1151 claim for the same condition. It is important to note that winning both cases would not result in a double payment. For example, if a claimant wins the Federal Tort case and then wins the Section 1151 case later, the claimant will not receive the lump sum from the government and then monthly compensation from the VA on top of that. Instead, the VA is required to withhold payments for Section 1151 benefits until the total amount of the Federal Tort judgment, settlement, or compromise, is offset. The total amount includes economic loss (loss of earning capacity), non-economic loss (for example, pain and suffering), as well as attorney fees, court costs, and other expenses incident to the claim. In other words, the VA essentially pays back the Federal Tort benefit with compensation benefits until the entirety of the tort benefit has been paid back.
There are a few exceptions to this rule. Firstly, an offset may be prohibited by a final court order, as long as that decision is not appealed by the VA. Secondly, the offset rule applies to “individuals”, as opposed to estates. Here, “individual” has been interpreted to mean that any money received by the Federal Tort claimant in an individual capacity or for personal loss (for example, for loss of companionship) must be offset under Section 1151. However, if the veteran’s surviving spouse pursues the Federal Tort suit in the capacity of administrator of the veteran’s estate, and not in an individual capacity, no offset is required or authorized.
It is important to keep in mind that Section 1151 and Federal Tort claims are not to be taken lightly. They are difficult claims to win. Your best chance of success is seeking the legal services of a representative experienced in this field.