While Claimant was employed by Brown International (“Brown”) in Afghanistan, he was injured by employees of a third party, BAE Systems Land & Armament (“BAE”). Claimant sued BAE and BAE then sued Brown for indemnity and negligence. Eventually, Claimant settled his suit against BAE. Brown and BAE settled their negligence claim, and BAE’s indemnity claim was dismissed. An order was then issued dismissing the action and closing the case “subject to the right of any party within sixty days to…re-open the action upon a showing of good cause.” Claimant now tries to reopen the case. Why? Because of Section 33(g) of the Longshore and Harbor Workers’ Compensation Act. Pursuant to Section 33(g), an injured worker must obtain his employer’s consent before settling with a tortfeasor for less money than the employer owes the worker in benefits. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992). If the worker doesRead more
Fifth Circuit Holds Defense Base Act is an Exclusive Remedy
The United States Court of Appeals, Fifth Circuit, issued an important opinion addressing the exclusive nature of the Defense Base Act (“DBA”) and whether an employer can be held liable under an intentional tort theory for injuries sustained by contractors. The plaintiffs in Fisher v. Halliburton filed suit against the employer that employed their deceased family members as truck drivers in Iraq. On April 9, 2004, two convoys were savagely attacked by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire. Seven drivers were killed and ten were injured. The plaintiffs filed suit alleging negligence and fraud, and after an earlier decision by the Fifth Circuit, the plaintiffs refined their complaint to also include civil conspiracy, intentional infliction of emotional distress and intent to injure/assault. On the present appeal, the Fifth Circuit determined that it needed to resolve three issues: (1) whether the injuries were injuries “caused by theRead more
New OWCP Bulletin Addresses War Hazards Compensation Act Procedure – Part 2
This post continues the review of OWCP Bulletin No. 12-01, which was issued on October 6, 2011. The Bulletin focuses on the direct payment provisions of the War Hazards Compensation Act (WHCA) and how those provisions are administered for claims originating under the Defense Base Act (DBA). Compensation for Disability and Permanent Impairment: The Division of Federal Employees Compensation (DFEC) pays benefits in accordance with the Division of Longshore and Harbor Workers’ Compensation’s (DLHWC) compensation order, and the amount of benefits paid by DFEC cannot be changed absent a Section 22 modification. If a claimant requests a change in the benefit amount, he will be referred to the DLHWC for modification. If DFEC disagrees with the claimant’s request, it “will outline the rationale for its disagreement and attach any applicable documentation.” In the event that DFEC, itself, obtains evidence that demonstrates a modification may be required, it may notify the DLHWC which,Read more
New OWCP Bulletin Addresses War Hazards Compensation Act Procedure – Part 1
On October 6, 2011, the Department of Labor issued OWCP Bulletin No. 12-01, which supplements information contained in the Federal Employees’ Compensation Act (FECA) Procedure Manual and OWCP Bulletin No. 05-01. The stated purpose for the new OWCP Bulletin, which addresses the Defense Base Act (DBA) and War Hazards Compensation Act (WHCA), is to “provide specific guidance on the interplay between” the Division of Federal Employees Compensation (DFEC) and the Division of Longshore and Harbor Workers’ Compensation (DLHWC), and to explain “the responsibilities of each program in the administration of DBA/WHCA reimbursement cases with ongoing entitlement.” This may be the most significant development in WHCA administration in years. First, some background. Some DBA claims–typically those involving injuries occasioned by “war-risk hazards”–are also WHCA cases. Benefits are paid to an injured claimant pursuant to the DBA, and the employer, fund, or insurance carrier that paid the benefits retains the right to request reimbursement for allRead more
Failing to Determine Impairment Pursuant to the “Guides” Was Harmless Error
Claimant appealed the Benefits Review Board’s (“BRB”) decision affirming the Administrative Law Judge’s (“ALJ”) determination that Claimant had a 10% impairment to his lungs. Although awarded benefits, Claimant argued that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Both the BRB and the United States Court of Appeals, Second Circuit, agreed that the ALJ “most likely erred” but that the error–which was the ALJ’s failure to determine Claimant’s permanent impairment in accordance with the Guides–was harmless. The Second Circuit also agreed with the ALJ’s determination of the date of permanency. “Permanency can be shown in one of two ways: (1) when the claimant reaches ‘maximum medical improvement’ as demonstrated by the medical evidence; or (2) when the claimant’s disability ‘has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one inRead more
Negligence Lawsuit Barred By Defense Base Act’s Exclusivity Provision
After completing his shift, Decedent, a Defense Base Act (“DBA”) employee in Iraq, returned to his room, which was provided by the Employer. At the same time, other employees were drinking on the Employer’s premises. During an altercation in Decedent’s room, one of these intoxicated employees shot and killed Decedent. The intoxicated employee pled guilty to involuntary manslaughter and is currently serving a three year prison. Plaintiff, Decedent’s widow, filed a claim for death benefits under the DBA. Her claim was accepted and paid. In addition to the DBA claim, Plaintiff filed a “single negligence claim” against Employer and the intoxicated employee. Following discovery–and problems with delay–the Employer filed a Motion for Summary Judgment, arguing that the Plaintiff’s negligence lawsuit should be dismissed because the DBA was Plaintiff’s exclusive remedy. See 42 U.S.C. § 1651(c) (stating that the compensation scheme under the DBA is “exclusive and in place of allRead more
Which Federal Circuit’s Law Applies to a Defense Base Act Claim?
In the United States, there are twelve Courts of Appeals which are known as “circuit courts.” All fifty states, as well as the District of Columbia, are divided into various circuits. These courts are intermediate appellate courts; the last step before the Supreme Court of the United States. Over time, each circuit court has developed its own identity and reputation. The circuit courts can decide issues differently, sometimes because of geographical, political or ideological differences. When a circuit court decides an issue differently from a court in another circuit, a “split” is created. Lower courts in a circuit (i.e. district courts) are bound by their appellate court’s decisions. Those same courts are not bound by another circuit court’s decision. In the Defense Base Act (“DBA”) context, the applicable federal circuit law is determined by statute. Section 1653(b) of the DBA states: “Judicial proceedings provided under sections 18 and 21 of the Longshoremen’s and Harbor Workers’ Compensation ActRead more
Southern District of Texas Addresses Exclusivity of the Defense Base Act
Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.” It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.” 42 U.S.C. § 1651. Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision. The decedent worked as a truck driver for Defendant contractor in Iraq. Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp. MembersRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
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