Two nights ago, Jon Stewart aired an interview with Blackwater founder Erik Prince, who was promoting his book Civilian Warriors. Take a moment to watch the interview. It’s pretty interesting–and entertaining. Why is this applicable to Navigable Waters? Because many of Blackwater’s employees qualify as Defense Base Act (“DBA”) contractors. Jon Stewart’s interview touches on a number of topics that are often debated in the DBA community. First, in Part 1 he asks whether Blackwater contractors were mercenaries. Mr. Prince disputed the label, but there is no disputing that Mr. Stewart’s question is legitimate. DBA personal security contractors are paid sums that far exceed the pay earned by soldiers to work in the same environment and face the same threats. But is a contractor’s service the same as a soldier’s service? Should contractors who earn $150,000 to $200,000 be likened to soldiers, who perform the same tasks in the sameRead more
What is the International Terrorism Victim Expense Reimbursement Program?
The Defense Base Act and the War Hazards Compensation Act are not the only programs designed to address losses occasioned by acts of terrorism. Another compensation and reimbursement program is the International Terrorism Victim Expense Reimbursement Program (“ITVERP”), which is administered by the Department of Justice’s Office for Victims of Crime. If ITVERP applies, then the federal government may provide “financial reimbursement for qualifying expenses to qualified U.S. citizens and U.S. government employees who suffered direct physical or emotional injury from an act of international terrorism while outside the United States.” There are three main requirements for ITVERP: (1) a terrorist incident occurring outside the United States; (2) the victim or claimant must be a U.S. citizen of an employee of the U.S. government; and (3) the expenses must be directly related to the terrorist incident. If all three requirements are satisfied then the victim or claimant may be able toRead more
DLHWC Issued Industry Notice 144
From Director Antonio Rios: Effective December 2, 2013, the DLHWC is consolidating its case create and mail receipt processing in centralized locations. The New York District Office will be the Central Case Create site and will create cases for all injuries/deaths under the LHWCA, and its extensions, regardless of where the injury occurred or where the injured worker resides. The Jacksonville District Office will be the Central Mail Receipt site and will receive all case specific mail after the creation of a case regardless of the owning district office. We believe that centralizing our case create and mail receipt functions will facilitate the speed and quality of claims intake, but I am seeking your assistance with this transition. Please disseminate this information to as wide an audience as possible so that every stakeholder is aware of the new addresses for case create and mail submission. The attached Industry Notice providesRead more
DFEC Requiring Claimant Statements in War Hazards Claims
In the past few weeks, I received two information requests from the Division of Federal Employees’ Compensation (“DFEC”) in connection with two Applications for Reimbursement submitted pursuant to the War Hazards Compensation Act [“WHCA”]. Specifically, DFEC asked for written statements or a deposition from an injured worker. DFEC sends these types of requests often, and mostly in connection with cumulative exposure psychological disability claims. Two regulations serve as the backdrop for this post: 20 C.F.R. § 61.101 and 20 C.F.R. § 61.102. The first regulation, 20 C.F.R. § 61.101, describes the documents that shall be submitted (if available) with a reimbursement request. The specific language at issue here is: “When filing an initial request for reimbursement under the Act, the carrier shall submit copies of all available documents related to the workers’ compensation case, including– . . . (2) Statements of the employee or employer . . . .” See 20 C.F.R. § 61.101(c). TheRead more
The DBA Applies if Claimant Worked Under a Contract “Approved and Financed” by the U.S.
Claimant, an airplane mechanic in Abeche, Chad, alleged work-related injuries to his hip, lower back and legs. Employer successfully argued to the administrative law judge (“ALJ”) that the Defense Base Act did not cover Claimant’s injuries because Claimant was not working under a contract with the United States. Instead, Employer’s “humanitarian air transport services in Chad [were] funded through a cooperative agreement with the United States Department of State (DOS) and a grant from the United States Agency for International Development (USAID) . . . .” Because the term “contract” was not defined by the Defense Base Act, the ALJ interpreted “contract” in accordance with the Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. § 6301, et seq. The ALJ determined that Claimant was not working under a “contract” within the meaning of Section 1(a)(5) of the Defense Base Act. Consequently, the ALJ granted Employer’s Motion for Summary Decision. SectionRead more
Can DFEC Force Employers and Carriers to Re-Litigate a Defense Base Act Claim?
Generally speaking, when a defense contractor is injured by a “war-risk hazard,” the carrier that pays benefits is entitled to reimbursement under the War Hazards Compensation Act (“WHCA”). See 42 U.S.C. § 1704. When the injured worker resides in the United States or Canada, carriers often seek reimbursement and the direct payment of future benefits. See id.; see also 20 C.F.R. § 61.105. When the Division of Federal Employees’ Compensation (“DFEC”) agrees to directly pay future benefits, it will notify the carrier and the claimant that, on a particular date, DFEC will assume all future indemnity and medical payments. Even after DFEC takes over the administration of a claim, the modification provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) remains a viable option for reducing—or increasing—future benefits. See 33 U.S.C. § 922. Section 22 of the LHWCA allows modification of a compensation award on the ground of aRead more
Automatic Longshore Settlement Approvals and the Government Shutdown
Since last week, Longshore practitioners have debated whether Section 8(i) settlement agreements can be automatically approved during the government shutdown. Typically, all Longshore settlements are reviewed by the assigned district director. The district director has thirty days to review the settlement. If the settlement is reasonable, the district director issues a compensation order directing the parties to pay the amount identified in the order–most likely the same amount contemplated in the settlement agreement. But what if the district director does not issue a compensation order within thirty days? Or, as in this case, what if there are no district directors to issue compensation orders because of the government shutdown? Section 8(i) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) contains a provision that allows for automatic approval of settlements when all parties are represented by attorneys. Specifically, Section 8(i) states: “If the parties to a settlement are represented by counsel, then agreements shall beRead more
9th Circuit: “Seniority Raises” Do Not Increase Wage-Earning Capacity
Claimant was injured while working as a welder for Sause, where he earned $15 per hour. He unsuccessfully tried to return to work, so Sause paid disability benefits. Three years later, Claimant began working for another employer, K&K. Claimant’s starting pay was $7.80 per hour, and his pay was scheduled to increase periodically. A representative from K&K explained the pay increase as a quarterly “seniority raise:” If people work for us, we promise them a certain maximum wage that they can achieve in a certain time frame for us. And the cap wage for everybody in production and clerical is $13.50. And when out employees start, they start at minimum wage, and with adequate performance they will get automatic raises of 25 cents per quarter. When Sause began paying permanent partial disability benefits pursuant to Section 8(c)(21), it did so based on Claimant’s starting salary with K&K. However, as K&K periodically increasedRead more
Are Longshore Death Benefits Available to Same-Sex Spouses?
In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional. How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage. The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent forRead more
The BRB Explains Section 14(e) Penalties for Hearing Loss Claims
In a new published opinion which consolidated two cases, the Benefits Review Board (“BRB”) discussed the proper application of Section 14(e) penalties to hearing loss claims resulting from in-house audiograms. Pursuant to Section 14(e), a penalty equal to 10% of any installment of unpaid compensation can become due unless a notice of controversion is filed, or unless the district director excuses the failure to pay (when the failure was due to circumstances outside of the employer’s control). In this case, the claimants wanted the 10% penalty for their hearing loss claims. Claimant Andrew McGarey worked for employer as a machinist/grinder since 1975. He regularly underwent audiological evaluations conducted at his employer’s facility. On May 18, 2011, Claimant McGarey filed a Notice of Injury identifying May 17, 2011 as the date of injury. He did not submit medical records to his employer. Nonetheless, there was a March 10, 2010 audiogram in theRead more
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