Before I started representing injured workers, I represented employers and insurance carriers. I handled a lot of claims arising under the Longshore Act, including Defense Base Act (DBA) claims. I also filed a lot of Applications for Reimbursement under the War Hazards Compensation Act (War Hazards). In DBA claims where I knew that I would eventually file for War Hazards reimbursement, I always gave the same piece of advice to the carrier: no matter what, control the War Hazards narrative.
Controlling the narrative is all about positioning. Carriers should pay the injured worker, fulfilling their obligation under the DBA. And while they are doing so, carriers should collect the necessary information to submit a successful War Hazards Application for Reimbursement.
A Disputed Last Responsible Carrier Claim:
One of the last cases I tried for the defense involved a last responsible employer/carrier dispute. Under the Longshore Act and the DBA, “a single employer may be held liable for the totality of an injured worker’s disability, even though the disability may be attributable to a series of injuries that the worker suffered while working for more than one employer.” See Metropolitan Stevedore Co. v. Crescent Wharf and Warehouse Co., 332 F.3d 1102 (9th Cir. 2003). Even one day of injurious work is sufficient to shift liability to a subsequent employer/carrier. Id. For carriers, courts look to see which carrier was “on the risk” when the worker was last exposed to an injurious event or injurious working conditions.
My case involved two periods of employment with the same employer, but the first period of employment was covered by a different insurance carrier than the second period of employment. To make things simple for this post, I will say that Carrier A was on the risk for the first period of employment (i.e., the earlier period), and Carrier B was on the risk for the second period of employment (i.e., the later period).
During the first period of employment, the injured worker was involved in a helicopter crash in Afghanistan. He suffered injuries that required that he return to the United States for treatment. He did so and my client, Carrier A, paid DBA benefits. The injured worker healed and returned to work overseas.
The injured worker’s second period of employment also occurred in Afghanistan. He primarily worked on base, but he occasionally went outside the wire for missions. During those missions, he wore body armor, rode over uneven terrain in Bushmasters, and did a fair amount of walking, running, and jumping. The injured worker testified that, while on base, he experienced night-time rocket attacks. Despite all of this, and despite the fact that one single day of injurious exposure can shift liability to the subsequent carrier, Carrier B refused to pay DBA benefits. Carrier B argued that the injured worker’s disability was caused by the helicopter crash and that his last year of employment did not cause or aggravate any injuries.
The case went to trial after quite a few doctor depositions, as well as the injured worker’s deposition. The administrative law judge’s opinion was not surprising. He awarded benefits to the injured worker and held that Carrier B was liable for the benefits. So, both my client and the injured worker won.
But the judge also made another statement–and important statement for purposes of this article–and I am going to quote the passage in full, heading and all:
The Court Has No Jurisdiction Over War Hazards Compensation Act Claims
I am not sure, frankly, why [Carrier B] raises the issue, but it devotes considerable argument to the question of whether [the injured worker’s] injuries resulted form “war risk hazards” as defined by regulation under the War Hazards Compensation Act, 42 U.S.C. §§ 1701 et seq. … I presume [that Carrier B] either intends 1) to persuade me to find [the injured worker’s] injuries in this case resulted from “war risk hazards,” which finding [Carrier B] might employ against the United States in some other forum; or 2) to assert a claim against the United States for reimbursement under the War Hazards Compensation Act. If it is the former, I am not about to make any finding against the interests of the United States in an action to which it is not a party. If it is the latter, I have no jurisdiction to receive, much less decide, any such claim. I am not the Employment Standards Administration of the Office of Workers’ Compensation Programs.
“The general purpose of the War Hazards Compensation Act … is to shift to the United States government the costs of compensating certain civilian employees (domestic and foreign) of private companies who are working overseas in furtherance of American foreign policy and are injured or killed by a war risk hazard.” Defense Base Act and War Hazards Compensation Act Handbook (2010), p.12-1. Whether it ought to apply in [the injured worker’s] case is a question for another place and another time, and none of my business. It does not limit [the injured worker’s] recovery under the Defense Base Act in the meantime.
Focus on the Facts:
The judge’s statement is the judicial equivalent of a rap on Carrier B’s knuckles with a wooden ruler. He refused to make a finding that the War Hazards Compensation Act applied, steering clear of any jurisdictional problems associated with an administrative law judge making a War Hazards determination.
In my opinion, the judge did the right thing. The Department of Labor’s Division of Federal Employees Compensation determines whether the War Hazards Compensation Act applies, not an administrative law judge. See, e.g., 20 C.F.R. § 61.102.
That being said, the administrative law judge has every right to make a factual finding about the event or circumstance that caused the injured worker’s Defense Base Act injury. Every case has only one set of facts. If a mortar or rocket caused the injured worker’s Defense Base Act injury, then the judge is required to make that factual finding. see 20 C.F.R. § 702.348 (“The compensation order shall contain appropriate findings of fact and conclusions of law . . . .”); see also Yelena Zaslavskaya, Compensation Orders in Litigated LHWCA Claims: What the ALJs and the Parties Should Know, available on LexisNexis’ Workers Compensation Law Page.
What does this mean for carriers? They should focus on the facts. If the carrier is going to eventually ask for War Hazards reimbursement, then it needs to litigate the Defense Base Act portion of the claim with that end game in mind–assuming that litigation is even necessary. Do everything possible to collect War Hazards evidence early in a DBA claim. Find corroborating evidence that supports the existence of the alleged War Hazards event. Don’t leave the factual determination up to an administrative law judge who might not issue the factual finding that the carrier needs to successfully apply for reimbursement. Don’t challenge the “war-risk hazard” event that led to the Defense Base Act injury. Embrace it.
Controlling the War Hazards Narrative:
In my case, Carrier B should have embraced the War Hazards facts. The injured worker worked overseas for an extended period of time. Considering the living and working conditions that he experienced, it was obvious from the get-go that Carrier B was going to be found liable.
In an effort to mitigate its loss, Carrier B should have paid benefits to the injured worker instead of trying to shift liability to Carrier A, my client. It should have explored more fully the rocket attacks that the injured worker experienced, including whether the rockets contributed to any physical injuries. It should have elicited testimony from the injured worker and the experts about the effect that the rockets played on his physical condition.
In short, Carrier B should have controlled the War Hazards narrative. It didn’t. Now it is locked into an ongoing temporary total disability award at the maximum compensation rate, and its War Hazards claim is questionable. It may be destined to lose hundreds of thousands of dollars when, had it simply accepted liability and paid benefits, it could have actually made money via the reimbursement process.
Ruler photo courtesy of Flickr user Scott Akerman.