I have mentioned before that, when I first analyze the facts of a Defense Base Act case, I consider whether the War Hazards Compensation Act applies. This post addresses a tangential question: what happens when a lawyer does not consider the War Hazards Compensation Act? The Defense Base Act: The Defense Base Act (or DBA for short) is a system of federal workers’ compensation that applies to many overseas contractors. When a contractor working on an overseas base or under a U.S.-funded contract is injured, that injury and the resulting disability may be covered by the DBA. If it is, then the injured worker is entitled to indemnity benefits, as well as reasonable and necessary medical benefits. The War Hazards Compensation Act: The War Hazards Compensation Act (or WHCA for short) is sort of a companion to the DBA. The only part of the WHCA that is important for thisRead more
Publications For the Longshore and DBA Community
It is time to take a look at what is happening around the Longshore and Defense Base Act world: The LexisNexis Workers’ Compensation Law Community has published quite a few articles about Longshore and DBA matters. Check out: Employee’s Death in Tax Accident While He Shopped for Groceries Found Compensable Under Defense Base Act by Thomas Robinson. D.C. Circuit Court Dismisses RICO Action for Alleged Tortious Conduct Related to Defense Base Act Claims, also by Thomas Robinson. 2015 Update from the Benefits Review Board by Karen Koenig, Associate General Counsel, Longshore Division, U.S. Department of Labor. In addition to discussing the new Benefits Review Board judicial appointees, the article touches on Section 49 discrimination. The Office of Administrative Law Judges’s website has been a hubbub of activity over the last two months because of the new Rules. If you haven’t done so yet, take the time to read: Final Rule, Rules ofRead more
Control the War Hazards Narrative
Before I started representing injured workers, I represented employers and insurance carriers. I handled a lot of claims arising under the Longshore Act, including Defense Base Act (DBA) claims. I also filed a lot of Applications for Reimbursement under the War Hazards Compensation Act (War Hazards). In DBA claims where I knew that I would eventually file for War Hazards reimbursement, I always gave the same piece of advice to the carrier: no matter what, control the War Hazards narrative. Controlling the narrative is all about positioning. Carriers should pay the injured worker, fulfilling their obligation under the DBA. And while they are doing so, carriers should collect the necessary information to submit a successful War Hazards Application for Reimbursement. A Disputed Last Responsible Carrier Claim: One of the last cases I tried for the defense involved a last responsible employer/carrier dispute. Under the Longshore Act and the DBA, “aRead more
Defense of Freedom Medals and the War Hazards Comp Act
Too few Defense of Freedom Medals are awarded to deserving contractors. Far too few. When a civilian or military contractor is killed or wounded by hostile action experienced in the line of duty, then the contractor may be awarded the Secretary of Defense Medal for the Defense of Freedom–commonly known as the Defense of Freedom Medal or DFM. Initially, the medal was created for certain victims of the September 11th attack. Since that time, the scope of the medal has been extended to additional employees, including defense contractors. The problem, in my opinion, is that the medal is not awarded frequently enough. I base my opinion on the number of War Hazards Compensation Act claims opened and processed by the Department of Labor over the last decade in comparison to the few Defense of Freedom medals awarded during the same period of time. What are the Medal’s Requirements? Department ofRead more
Flat Fees Are Not Reimbursed Under the War Hazards Compensation Act
Here’s a tip for carriers that plan to apply for reimbursement under the War Hazards Compensation Act: don’t let your vendors charge flat fees. Why? Because the Division of Federal Employees’ Compensation will not reimburse flat fee charges, no matter what. What are Flat Fees? A flat fee, or flat rate, is a pricing structure where a single fixed fee is charged for a service, regardless of usage. These fees could arise for any number of services in Defense Base Act case. For instance, vendors may change flat rates for medical repatriation to the United States following an injury in Afghanistan; for surveillance or overseas document retrieval services; or even for legal fees. Why are Flat Fees Denied Reimbursement? Flat fees are not addressed in the War Hazards Compensation Act statutes. See 42 U.S.C. § 1701 et. seq. The regulations, however, do address flat fees. Specifically, 20 C.F.R. § 61.403,Read more
Defense Base Act Resolution and the Direct Payment of Future Benefits
When a Defense Base Act injury is caused by a “war-risk hazard,” then both the Defense Base Act and the War Hazards Compensation Act applies. The application of both statutory schemes is important for all parties to a Defense Base Act claim because the War Hazards Compensation Act offers additional resolution options. Specifically, employers and carriers may seek the direct payment of future Defense Base Act benefits if the underlying injury and disability was caused by a “war-risk hazard.” The “War-Risk Hazard” Definition: Generally, a “war-risk hazard” includes any hazard arising from the use of weapons or explosives; an “action” of a hostile force or person; the discharge of munitions intended for use in war no matter whether a hostile force or person is involved; the collision of vessels or aircraft in a zone of hostilities; and any mishap arising during “the operation of vessels or aircraft in a zoneRead more
What is the Scope of a War Hazards Compensation Act Appeal?
When an insurance carrier believes that it was improperly denied reimbursement for a War Hazards Compensation Act (“WHCA”) claim or expense, what can it do? It can appeal…but not to a court. The appeal is “in-house” at the Division of Federal Employees Compensation (“DFEC”). Essentially, the higher-ups in the same agency that denied the initial request for reimbursement will review the evidence and determine whether the denial was appropriate. The regulatory authority for a WHCA appeal is at 20 C.F.R. § 61.102(d), which states: The Office shall advise the carrier of the amount approved for reimbursement. If the reimbursement request has been denied in whole or in part, the Office shall provide the carrier an explanation of the action taken and the reasons for the action. A carrier within the United States may file objections with the Associate Director for Federal Employees’ Compensation to the disallowance or reduction of aRead more
Jumping from a Helicopter Can Be a War-Risk Hazard
A Defense Base Act claimant injured his ankle when he jumped a few inches from a helicopter to the ground below. The injury occurred at Abu Ghraib prison when, in accordance with custom, the helicopter in which he was traveling “landed” at the prison by hovering a few inches above the ground. As the helicopter hovered, the occupants exited the aircraft by jumping down to the gravel-covered ground below. Once all occupants were removed, the helicopter took off again. This “landing” procedure was commonplace at Abu Ghraib because of the threat of enemy fire. The issue is whether Claimant’s ankle injury was caused by a “war-risk hazard.” The answer is, “Yes,” because the injured worker suffered injuries as a direct result of the operation of an aircraft engaged in war activities operating in a zone of hostility. Under the War Hazards Compensation Act, a “war-risk hazard” includes “any hazard arising during a warRead 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
Tragic Aircraft Crash in Afghanistan and the Scope of the War Hazards Compensation Act
This morning the Washington Post, and countless other news agencies, printed a sad story about a National Air Cargo plane crash in Afghanistan that claimed the lives of seven Americans. The article is available here. Shortly after takeoff from the Bagram Air Base in Afghanistan, the plane lost altitude, falling to the ground. Although the Taliban claimed responsibility for the downed aircraft, there is no indication that insurgents were involved in the crash. Our hearts go out to the surviving family and friends of these Americans. We do not know the facts behind the crash, and we cannot comment on the applicability of the Defense Base Act or the War Hazards Compensation Act to this particular event. Nonetheless, assuming that the DBA does apply, this tragic event demonstrates the interesting interplay between the DBA and WHCA, and the scope of the WHCA’s “airplane” inclusion. For our hypothetical, assume the following: 1. EachRead more