The United States Court of Federal Claims recently addressed the difference between a Federal Employees Compensation Act (“FECA”) claim and a Longshore and Harbor Workers Compensation Act (“LHWCA”) claim. The matter came before the court following plaintiff’s allegation that the defendant failed to pay plaintiff, a former federal government employee, interest on retroactive compensation payments made pursuant to FECA. The plaintiff argued that because interest is available for LHWCA claimants, it should also be available for FECA claimants. In deciding that it lacked jurisdiction over the claim, the court addressed the differences between FECA and LHWCA:
“FECA provides employment compensation for federal government employees. An employee under FECA is defined principally as ‘civil officers or employees in any branch of the Government of the United States.’ 5 U.S.C. § 8101(1)(A). The money to pay these claims comes from congressionally appropriated funds. Id. § 8147. In contrast, the LHWCA is a statutorily directed compensation system for longshoremen and harbor workers. Under the LHWCA, an employee is defined as ‘any person in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship breaker.’ 33 U.S.C. § 902. The LHWCA applies to private citizens, not government employees, employed in a defined capacity by private employers. Compensation required by the LHWCA is paid directly by the employer, not by the United States, or from a special fund if the situation requires. 33 U.S.C. §§ 914, 944. The LHWCA establishes this fund in the Unites States Treasury to provide claims in certain circumstances such as employer default. See id. §§ 920, 944. Money for this fund is paid in by employers or their insurers and is not the money or property of the United States Government. Id. § 944.”
Ultimately, the court concluded that the Secretary could not award interest to FECA employees because there was “no statutory waiver of sovereign immunity to permit the award of interest.” LHWCA awards, on the other hand, “do not implicate sovereign immunity because the compensation provided does not come from the United States Government.”
Proctor v. U.S., No. 10-454C, — Fed. Cl. —-, 2010 WL 4780808 (Fed. Cl. 2010).
Comment: The Federal Claims court’s decision is interesting, especially when it is applied to the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”). Generally, the DBA provides workers compensation coverage for contractors injured abroad on U.S. defense bases. For the most part, the WHCA is implicated when a DBA injury is caused by a “war-risk hazard.” Pursuant to the WHCA, an insurance carrier “shall be entitled to be reimbursed for all [DBA] benefits so paid or payable [for war-risk hazard injuries], including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” 42 U.S.C. § 1704(a)(3).
Like LHWCA claims, the DBA is administered by the Division of Longshore and Harbor Workers’ Compensation, but the WHCA is administered by the Division of Federal Employees’ Compensation, which also adminsiters FECA claims. In a way, the WHCA could be viewed as an intersection between LHWCA/DBA claims and FECA administration. Although an initial glance may suggest that a FECA-based analysis is applied to WHCA reimbursement, that is not the case. The statute clearly states that an employer, carrier or fund shall be entitled to reimbursement for DBA benefits paid on account of a “war-risk hazard” injury. While the Division of Federal Employees’ Compensation may write the check that pays for WHCA reimbursement claims, the underlying entitlement to DBA benefits and the amount paid for DBA benefits is a matter of concern for the Division of Longshore and Harbor Workers’ Compensation.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
