Here’s a (surprisingly) not-so-simple question: who can diagnose medical conditions in Defense Base Act claims? Believe it or not, this question can throw a monkey wrench into the gears of an injured worker’s claim, particularly with psychological disorders. The rub is that, with psychological claims, the problem may actually stem from an unwritten and–as presented below–unwarranted application of law by the Division of Federal Employees Compensation (“DFEC”). Why DFEC? Because DFEC administers the War Hazards Compensation Act, the statutory scheme where the diagnosis logjam occurs most frequently. Interplay between the Defense Base Act and the War Hazards Compensation Act: Very generally, the Defense Base Act is a system of federal workers’ compensation that covers military contractors working overseas on military bases. When an employee is hurt, they file a claim for DBA benefits. Employers and insurance carriers are supposed to pay weekly compensation and medical benefits to employees with work-relatedRead more
Use Insurance Premiums as an AWW Calculation Factor?
The value of an injured worker’s weekly compensation rate rises and falls based on the amount of the injured worker’s average weekly wage (“AWW”) at the time of injury. Consequently, litigants often argue about the worker’s AWW—especially in Defense Base Act claims. Most of the time, the argument is—in my opinion—used as a way to artificially deflate the AWW and compensation rate. Today’s post addresses a specific AWW argument that popped up in one of my cases. The issue is whether an employer and carrier may “blend” together pre-employment stateside and overseas wages to calculate the AWW of an employee who worked overseas for more than 52 weeks. I don’t think so. And perhaps a relevant factor in this inquiry should be the premiums paid by the employer to the carrier–which is a factor that some State courts look at in State workers’ compensation claims. Definition of Wages: There isRead more
Fed Ct: Must Prove Business Relationship to Enjoy Exclusivity
In a new case out of the United States District Court for the Northern District of Illinois, an airline has a big problem on its hands: it is likely going to have to defend itself in a State civil court negligence and wrongful death lawsuit. On April 29, 2013, a plane crashed immediately after taking off from Bagram Airfield in Afghanistan. Video of the dramatic crash was captured on a dashboard camera. All seven crewmembers aboard the aircraft were killed. The families of five of those crewmembers filed a lawsuit in Illinois state court against The Boeing Company, AAR Manufacturing d/b/a Telair International, Inc., Telair International, GMbH, and National Air Cargo, Inc. (“NAC”). In response, NAC removed the case to federal court asserting federal officer jurisdiction. For purposes of this post, I note that NAC argued that it had a potential defense to liability under the Defense Base Act. TheRead more
Board Addresses ALJ Review of Attorneys Fees in Settlements
The Benefits Review Board issued a pair of unpublished attorney fee decisions that are interesting when read in tandem. The decisions address attorneys fees paid pursuant to a settlement agreement after the employer/carrier negotiated a fee amount with the claimant’s attorney. The parties to Longshore and Defense Base Act claims may voluntarily settle their disputes, provided that the settlement is adequate and was not procured by duress. See 33 U.S.C. 908(i). The parties can include a fee for the claimant’s attorney in their settlement agreement. Once an agreement is reached, the parties submit their settlement to an adjudicator. For this post, assume that the adjudicator is an administrative law judge (“ALJ”). After receipt of the settlement application, the ALJ must take one of the following four actions within 30 days: Issue a deficiency notice if the application is incomplete; Approve the settlement if it is adequate and not procured byRead more
Defense Base Act Death Claims After a Plane Crash
Last week, a C-130 aircraft crashed in Afghanistan, killing 6 airmen and 5 civilian contractors. Multiple media outlets reported on the crash. For instance, the Los Angeles Times wrote that the crash occurred Friday at Jalalabad Airfield in Afghanistan. Although a spokesman for the Taliban claimed that militants shot the plane down, those claims remain uncorroborated. This post addresses how a Defense Base Act proceeds when an aircraft accident occurs. The Defense Base Act: The Defense Base Act is a federal workers’ compensation system. It provides protection to contractors and subcontractors working overseas on a United States military base or working under a United States government contract. If a contractor is injured or killed, then the contractor or his loved ones may be entitled to benefits. As for the recent plane crash, any eligible surviving beneficiaries would be entitled to death benefits. When something like this happens, the contractors’ employers file a Form LS-202. This form isRead more
Requirements for a Longshore or DBA Settlement
Want to know what goes into a Longshore or Defense Base Act settlement? Look no further than the Code of Federal Regulations. A Longshore or Defense Base Act settlement is technically a settlement application, not a settlement agreement. The parties negotiate an agreement between themselves, but a third party must approve the written application describing that agreement before the agreement takes effect. As such, the parties to a claim submit their settlement application to either an Office of Workers Compensation Programs’ district director or an administrative law judge. The adjudicator will determine whether the settlement is adequate. Typically, this determination is made within thirty days. See 20 C.F.R. § 702.243(b). What is “adequate”? It depends on the facts and circumstances of the individual case, which the adjudicator must consider. Specifically, the Code of Federal Regulations states: (f) When presented with a settlement, the adjudicator shall review the application and determine whether, considering all the circumstances, including, where appropriate,Read more
Court Analyzes DBA, Exclusivity, and Borrowed Employee Rule
The Defense Base Act contains a provision which makes it an exclusive remedy. That means that a U.S. employee with a workplace injury (or their beneficiary) can only seek benefits from the employer pursuant to the DBA workers’ compensation scheme. The exclusive remedy provision states: The liability of an employer, contractor (or any subcontractor or subordinate subcontractor . . . ) under this Act shall be exclusive and in place of all other liability for 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 off hire of any such employee may have been made or entered into. See 42 U.S.C. § 1651(c). Recently, the United States District Court for the District of Arizona addressed the Defense Base Act’s exclusivity provision in the context of aRead more
New National Average Weekly Wage Numbers
Beginning on October 1, 2015, the following wage/compensation rates will apply in claims arising under the Longshore and Harbor Workers’ Compensation Act and its extensions. National Average Weekly Wage: $703.00 Maximum Compensation Rate: $1,406.00 Minimum Compensation Rate: $351.50 Percent Increase (from last year): 2.10% Visit the Division of Longshore and Harbor Workers’ Compensation’s NAWW Information Page for more information or to see past NAWW figures. Also, please keep in mind that the change in the National Average Weekly Wage applies to Defense Base Act claims too. Contact your attorney if you have any questions about the application of this change to your claim. Finally, if you need legal assistance with your Longshore or Defense Base Act claim, please contact Jon Robinson of Strongpoint Law Firm at (844) DBA-COMP or [email protected]. Attribution: Photo courtesy of Flickr User Ervins Strauhmanls.
The War Hazards Compensation Act: A Primer
My new article is out. The Loyola Maritime Law Journal was nice enough to publish my piece, “The War Hazards Compensation Act: A Primer.” As soon as possible, I will update this post with a link to my SSRN page. There, you will be able to download a free copy of the article. In the meantime, here is the abstract: Over the past decade, the number of Defense Base Act and War Hazards Compensation Act claims dramatically increased. These two acts are inextricably intertwined when a “war-risk hazard” event causes an injured worker’s injury and disability. When that happens, an employer or its insurance carrier may use the War Hazards Compensation Act to secure reimbursement for Defense Base Act benefits and expenses paid on behalf of the worker’s injury and disability. Yet, little has been written to address the procedure for successfully maneuvering a claim from its Defense Base ActRead more
Non-Deployable Medical Conditions and the Defense Base Act
In most Defense Base Act cases the parties have to determine whether the injured worker can return to their usual and customary employment. For contractors, that means determining whether the injured worker can return to overseas employment. If they cannot return to their pre-injury job, then the injured worker is considered totally disabled until the employer demonstrates the existence of suitable alternative employment (i.e., another job that the claimant could work). But what if the injury suffered by the contractor–that is, the injury that required workers compensation in the first place–is best classified as a “non-deployable medical condition”? Today, I want to focus on non-deployable medical conditions and how those conditions could affect a Defense Base Act claim when the litigants are determining the injured worker’s post-injury employment outlook. Further, I want to address the situation where employers use overseas military contracting jobs on their labor market surveys to deflate anRead more
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