A new FECA Bulletin answered a pressing question in the Defense Base Act and War Hazards Compensation Act community: what evidence is needed to prove emotional distress reimbursement claims? FECA Bulletin No. 18-03, which the Division of Federal Employees’ Compensation (“DFEC”) issued on June 6, 2018, is as useful in Defense Base Act claims as it is in War Hazards claims. There’s no denying that insurance carrier’s litigate DBA claims with an eye towards War Hazards reimbursement.
The Defense Base Act and the War Hazards Compensation Act:
Insurance carriers pay benefits to claimants pursuant to the DBA. Then, if the claimant’s injury was caused by a “war-risk hazard,” the carrier asks the U.S. government to reimburse the DBA benefits paid to the claimant.
In other words, claimants are paid under the DBA. Carriers are paid under the War Hazards Compensation Act.
To get reimbursement, the carrier must show that the claimant experienced a “war-risk hazard,” which includes:
[A]ny hazard arising during a war in which the United States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a person covered by this chapter is serving; from–
(1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attach or an imagined attack by a hostile force or person; or
(2) action of a hostile force or person, including rebellion or insurrection against the United States or any of its Allies; or
(3) the discharge or explosion of munitions intended for use in connection with a war or armed convulse with a hostile force per person . . .
(4) the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or
(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.
If a claimant’s injury was caused by one of the events listed above, then the injury qualifies as a “war-risk hazard.” Notably, a claimant does not have to prove that an injury was a “war-risk hazard” in order to qualify for DBA benefits. The burden to prove the existence of a “war-risk hazard” does not apply to the DBA; it only applies to the War Hazards Compensation Act.
FECA Bulletin No. 18-03 Offers Guidance:
The new FECA Bulletin No. 18-03 offers much needed guidance to insurance carriers that want War Hazards reimbursement for DBA benefits paid to psychologically-disabled claimants. Moreover, the bulletin is beneficial for claimants because it helps define the universe of information that could be helpful not just to a DBA disability claim, but also to the carrier’s eventual War Hazards Compensation Act reimbursement claim. The text of FECA Bulletin No. 18-03 is reproduced below:
FECA BULLETIN NO. 18-03
Issue Date: June 6, 2018
Subject: Processing Claims for Emotional Conditions Due to Exposure under the War Hazards Compensation Act (WHCA).
Background: The WHCA supplements the Defense Base Act (42 U.S.C. 1651) (DBA), which is an extension of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 (et seq.). The WHCA completes the protection provided to Federal contractors’ employees and certain other selected employees performing work outside the United States. All liability for injury, death and detention benefits under the WHCA is assumed by the Federal Government, and is paid from the Employees’ Compensation Fund established by 5 U.S.C. 8147.
Under Section 104 of the WHCA, an insurance carrier, self-insured employer, or compensation fund may claim reimbursement from the Employees’ Compensation Fund for benefits paid on cases approved under the DBA, if it can be shown that the covered DBA injury or death was due to a war-risk hazard. Where there is no compensation payable under the DBA, an employee or his or her survivors may file a claim directly under Section 101 of the WHCA. Section 101 of the WHCA also authorizes the payment of detention benefits for contractors’ employees who are captured or detained by a hostile force.
In many instances, a request for reimbursement will be based on exposure to a war-risk hazard (whether cumulative, episodic, or from a single incident) that allegedly results in the development of a compensable DBA emotional condition. In such cases, the evidence of record must thoroughly be reviewed to determine: (1) whether the carrier has established that exposure to at least one war-risk hazard in some way contributed to the development of the emotional condition; and (2) whether that exposure occurred during the covered insurance period.
References: 42 U.S.C. 1701 et seq., issued December 2, 1942, and amended in 1943, 1946, 1953, 1958, 1959 and 1961. 20 C.F.R. Parts 61 and 62, published on February 8, 1988.
Purpose: To provide guidance to claims staff for developing and adjudicating reimbursement claims under the WHCA for emotional conditions due to exposure to a war-risk hazard.
- Establishing Exposure to a War-Risk Hazard. Upon receipt of a WHCA reimbursement petition, where an emotional condition resulting from exposure to war-risk hazards is alleged, the claims examiner should first review the evidence of record to ascertain whether exposure to a war-risk hazard is established. Such evidence may include the injured worker’s statements, medical reports, news accounts, government reports, witness statements, statements from the injured worker’s superior and/or employing organization and any other submitted evidence documenting exposure to a war-risk hazard.The evidence need not be exact as to dates and times of the occurrence of the war-risk hazard(s); however, the documentation must provide sufficient specificity of the employee’s potential exposure to a war-risk hazard such that it is reasonable to conclude that the employee was actually exposed to such war-risk hazard(s).Example: Documentation that would be sufficient to establish exposure to a war-risk hazard would include an instance where the evidence demonstrated that an injured worker traveled a 20-mile portion of Highway X several times a week during the course of her employment in 2004, and the injured worker stated that during that time she was exposed to an IED blast/explosion placed by a hostile force.
When establishing exposure in or around a facility, base, encampment or other similar location/structure, the following guidelines may be followed:
Where the documentation demonstrates that the employee in question was employed or working at a facility, etc., at the same time that such facility was subjected to the occurrence of one or more war-risk hazards, it is reasonable to conclude that the employee was personally exposed to such war-risk hazard, unless there is evidence to the contrary.
Example 1: News accounts confirm that a particular camp underwent regular bombing during January-March of a given year and the individual in question was employed as a security guard at that camp during this same period. Exposure to a war risk hazard will be considered established.
Example 2: Evidence establishes that the individual was employed in Afghanistan during Operation Enduring Freedom without specifying the individual’s employment, specific location or the war risk hazard encountered. Exposure to a war risk hazard has not been established based on the mere presence of an individual in an area where military operations were conducted.
2. Medical Evidence. If the claims examiner determines that exposure to a war-risk hazard is established, the submitted medical evidence must next be assessed to determine whether it establishes that the emotional condition is causally connected to such war-risk hazard exposure and was not attributed exclusively to other factors of employment. The medical documentation need not provide details of a specific war-risk hazard exposure or include a lengthy analysis of causality. However, to establish a causal connection, the evidence must, at a minimum:
- Provide some reference of exposure to at least one war-risk hazard in the course of employment; and
- Establish that a war-risk hazard in some way contributed to the development of the emotional condition. There need not be detailed rationale; an affirmative statement as to causality is sufficient.
Also note that medical evidence (particularly medical evidence with a close temporal relationship to the event(s)) may assist in confirming exposure to a war risk hazard.
Example: Medical evidence from a physician that recounts a claimant’s history of work at a camp that underwent regular bombings and indicates that the claimant’s emotional condition is due to, or was aggravated by, this exposure would be sufficient to establish causal relationship.
3. Period of Coverage. The evidence must show that the war-risk hazard exposure that caused or contributed to the emotional condition occurred during a period in which the carrier has submitted valid evidence of insurance coverage.
4. Development. If the evidence initially submitted is insufficient to establish the criteria noted above, the claims examiner should proceed with appropriate development of the claim prior to rendering an adjudication decision.
Applicability: Appropriate National and District Office personnel.
Disposition: This bulletin is to be retained until the Procedure Manual is updated.
Federal Employees’ Compensation