Last month, Representative Stephen Lynch reintroduced a proposed amendment to the Defense Base Act (H.R. 312). This is a re-introduction of an amendment (H.R. 5721) he proposed in late 2014 to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.” Ultimately, Rep. Lynch’s amendment appears destined to fail. The Reason for H.R. 5721, and now H.R. 312: Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya. Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack. He was unmarried, with neither children nor other dependents. Yet, he had activated a mandatory Defense Base Act insurance policy before deploying toRead more
Insider Attacks Cause Compensable Defense Base Act Claims
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. IfRead more
Is Erik Prince Right? Should We Fight ISIS with Defense Contractors?
Is Erik Prince, the ex-Blackwater CEO, right? Should the United States use Defense Base Act contractors to fight ISIS? On his blog for Frontier Services Group, Mr. Prince wrote a post entitled, “Chairman’s Column – Thoughts on Countering ISIS,” which I’ve reproduced in full below: As someone who spent many years operating in Iraq, Afghanistan, and other underdeveloped countries facing existential security threats, I was recently asked about my reaction to President Obama’s plan for fighting ISIS. My immediate response is that the President’s current plan seems half-hearted at best. American air power has significant reach and accuracy, but ultimately will be unable to finish the job of digging ISIS out of any urban centers where they may seek shelter amongst the populace. Clearing operations ultimately fall to the foot soldier. The Iraqi army is demonstrably inept after billions spent on training and equipping them. Providing them more gear isRead more
Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ
Claimant was injured while working as a linguist in Iraq. His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute. Employer paid some of the medical bills in question after it received itemized statements. Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses. The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation. While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation. The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries. After the ALJ remanded the claim,Read more
Benefits Review Board Accepts Electronic Filings
This following notice is posted on the Benefits Review Board’s home page. Notice Regarding Availability of Electronic Filing and Electronic Service All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents. The EFSR system is open to any party to an appeal before the Board. An e-Filer must register as a use and must be validated by the Board before e-filing any document. An e-Filer will complete an online registration form. A valid e-mail address is required to register as an e-Filer. Once registered, an e-Filer will be able to use the EFSR for electronic filingRead more
DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims
On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act. The new compensation rates are: National Average Weekly Wage: $688.51 Maximum Compensation: $1,377.02 Minimum Compensation: $344.26 Percentage Increase: 2.25% (Note: I first published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Do You Need a Medicare Set Aside for Your Longshore or Defense Base Act Settlement?
In every case where a Longshore worker or Defense Base Act contractor agrees to close or limit their right to future medical benefits, the parties must consider whether a Medicare Set Aside is needed. What is a Medicare Set Aside and why is it needed? Essentially, the Centers for Medicare and Medicaid Services (“CMS”) does not want to pay for workers’ compensation injuries. The Medicare Secondary Payer laws protect CMS from workers’ compensation litigants who may want to shift the liability for payment of future medical benefits to CMS. Consequently, in certain situations, the parties to a workers’ compensation settlement must prepare “a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness or disease. These funds must be depleted before Medicare will pay for treatment related to the [injury].” Moreover, CMS will want proof (inRead more
The Zone of Special Danger Includes Grocery Shopping
In a new published Defense Base Act (“DBA”) claim, the Benefits Review Board further clarified the zone of special danger doctrine. A widow filed a claim for death benefits after her husband was killed in Tbilisi, Georgia, while working for the employer. The decedent’s job required that he work five days per week, and that he remain on-call for emergencies. In addition to wages, the decedent received a monthly allotment for housing and utilities, as well as vouchers for a taxi service. While riding in a taxi going to the grocery store, the decedent’s vehicle was struck head-on by another car, causing his death. Death benefits are owed under the Longshore and Harbor Workers’ Compensation Act, as extended by the DBA, when the decedent died in the “course of employment.” For Defense Base Act claims, the Supreme Court has held the “an employee may be within the course of employment,Read more
Defense Base Act Contractor Denied Vaccine Act Compensation
Petitioner worked for Fluor as a military contractor. On February 1, 2012, while employed by Fluor in Afghanistan, he received a flu vaccine and subsequently developed Guillain-Barre Syndrome. The flu vaccine was a Department of Defense requirement, and was distributed at a Fluor clinic at Bagram Airfield. A few weeks after receiving the shot, Petitioner began to feel weakness and numbness in his extremities. On March 5, 2012, he filed a claim for Defense Base Act (“DBA”) benefits. A month and a half later, Petitioner filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”). The United States Court of Federal Claims was tasked with determine whether Petitioner qualified for Vaccine Act compensation. Petitioner argued that as a government contract worker stationed in Afghanistan, he was either a member of the Armed Forces or a federal employee. Even though he filed a DBA claim,Read more
Military Contractors Are a Way of Life, Now and in the Future
How important are contractors to the Department of Defense? Very. Contractors are indispensable. According to the Congressional Research Service (“CRS”), “the military is unable to effectively execute many operations, particularly those that are large-scale and long-term in nature, without extensive operational contract support.” The May 2013 CRS report entitled Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress is an enlightening report. Although there are some portions of the report that I disagree with, the CRS did a good job explaining the importance of defense contractors: DOD has long relied on contractors to support overseas military operations. Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.” Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–bothRead more
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