News surfaced this past weekend about an insider attack at Kabul’s military airport that left three contractors dead. According to news sources, the three contractors—all American—worked as aircraft mechanics for Praetorian Standard, a company headquartered in Fayetteville, NC.
News sources, and Praetorian, released the names of the contractors, Matthew E. Fineran, Walter D. Fisher, and Jason D. Landphair. Our thoughts and prayers are with their families and loved ones, as they are with Bradley James, who was injured in the small arms fire attack.
Insider attacks, also referred to as “green-on-blue” attacks, are somewhat common occurrences in Afghanistan. In many situations, these events can lead to compensable Defense Base Act claims.
The Defense Base Act Is Workers’ Compensation.
The Defense Base Act is a system of federal workers’ compensation. Generally, the DBA covers defense contractors working outside of the United States under government contracts or on U.S. military bases.
If the DBA applies, then an injured worker is entitled to indemnity and medical benefits; or, in the event of death, statutory beneficiaries are entitled to death and funeral benefits.
What Death Benefits Are Owed?
The DBA incorporates Section 9 of the Longshore and Harbor Workers’ Compensation Act. To calculate the amount owed for death benefits, the employer must determine the decedent’s average weekly wage. Next, the employer must determine whether qualified beneficiaries exist. According to the Longshore Act and the Defense Base Act, the following individuals could qualify for death benefits:
- Widows or widowers (without a child or children)
- Widows or widowers and a child or children
- A child or children (without a widow or widower)
- Dependent grandchildren
- Dependent siblings
- IRS “dependents”
The amount owed for death benefits depends on the identity of the beneficiaries. For instance, if the decedent is survived by a widow, then the employer and carrier must pay the widow 50% of the decedent’s average weekly wage (up to the maximum compensation rate required by law). On the other hand, if the decedent is survived by a widow and child, then the employer and carrier must pay the decedent’s family 66.667% of the decedent’s average weekly wage (again, subject to the max comp rate). The percentages owed for parents (25%) and dependents/siblings/grandchildren (20%) is less than the benefits available for surviving spouses and children, but the benefits can aggregate up to 66.667%.
Finally, in addition to death benefits, the employer and carrier must pay $3,000 in funeral benefits. (Back when I used to represent employers and carriers—I now represent claimants—I often saw employers pay more than the statutory $3,000 limit. It is pretty obvious that $3,000 is not enough for funeral benefits. In fact, $3,000 for funeral benefits is far less than the majority of state workers’ compensation schemes; and the recent proposals for amendments to the Longshore and Harbor Workers’ Compensation Act have called for an increase in the amount paid for funeral benefits.)
What Disability Benefits Are Owed?
When an insider attack injures an employee, a different set of statutes applies. Section 8 of the Longshore Act requires the employer and carrier to pay indemnity benefits when the injury prevents the employee from working. Indemnity benefits are paid at 66.667% of the average weekly wage.
Medical benefits are paid to the employee pursuant to Section 7 of the Longshore Act. Employers and carriers are required to pay all reasonable and necessary medical expenses. And the employee gets a free choice of physician—per specialty.
The extent of disability depends on the type of injury and the employee’s ability to work. Using the most recent insider attack as a case study, I would question whether a psychological condition would prevent the gunshot victim from returning to work in a combat zone.
Does the War Hazards Compensation Act Apply?
It should not come as a surprise that a small arms fire (i.e. gun) attack may require an employer and carrier to pay substantial Defense Base Act benefits. As such, the employer and carrier will want War Hazards Compensation Act (“WHCA”) reimbursement.
Through the WHCA, the government will reimburse the employer and carrier for the benefits paid to injured workers or their families, but only if the injury was caused by a “war-risk hazard.” Gunshot injuries can qualify as “war-risk hazards,” but only if the gun was shot by a “hostile force or person.”
That may sound silly. Of course the attacker was hostile! Instead of hostility, the government wants to know the motivation for the attack. Did a terrorist perpetrate the attack, or was this a criminal act and nothing more.
Using the recent horrific attack as a case study, the employer and carrier should be reimbursed. Reuters reported that the “Taliban claimed responsibility for the attack saying a militant infiltrator had carried it out.”
Conclusion and Further Reading:
The recent “green-on-blue” attack carries with it all of the all-too-familiar hallmarks of a compensable Defense Base Act claim. It is a tragic event. I said it before, but I will say it again: keep the victims and survivors of this heinous insider attack in your thoughts and prayers.
If you are interested in additional news stories about the attack, check out the following links:
- ABC News: Praetorian Standard Contractors Identified as 3 Americans Killed in Kabul http://abcnews.go.com/International/praetorian-standard-contractors-identified-americans-killed-kabul/story?id=28630751
- Associated Press: 2 S.C. men among 3 contractors shot in Afghanistan http://www.thestate.com/2015/01/31/3962229/2-sc-men-among-3-contractors-shot.html
- Myrtle Beach Online: Friends, family remember North Myrtle Beach contractor killed in Afghanistan http://www.myrtlebeachonline.com/2015/01/30/4760237/military-contractor-from-north.html
- Pacific Daily News: Taliban claim responsibility for Kabul attack http://www.guampdn.com/usatoday/article/22546595
- Reuters: Three U.S. contractors killed in ‘insider attack’ in Afghanistan http://news.yahoo.com/three-u-contractors-killed-insider-attack-afghanistan-075522222.html;_ylt=AwrBEiSD389UiSAAgvfQtDMD
- The Nation, Tim Shorrock, The Afghanistan War Is Still Raging–but This Time It’s Being Waged by Contractors http://www.thenation.com/blog/197057/afghanistan-war-still-raging-time-its-being-waged-contractors
Image courtesy of Flickr user Carl Montgomery.