When the Benefits Review Board issued Cathey v. Service Employees International in December 2012, we published a blog post calling into question some of the Board’s language. As it turns out, the Director took issue with some of the language too. Specifically, the Director averred that the Board incorrectly included language indicating that an employer is permanently relieved of liability once a Defense Base Act claim is accepted for reimbursement. The Board reconsidered its language and issued an amended Cathey decision, which states in pertinent part: In her motion, the Director requests that the Board delete language in the decision that indicates that the federal government’s acceptance of employer’s claim for reimbursement under Section 104 of the War Hazards Compensation Act (WHCA), 42 U.S.C. § 1704, permanently relieves employer of its liability under the Defense Base Act, 42 U.S.C. § 1651 et seq. (DBA). The Director asks the Board to clarify itsRead more
FECA Bulletin No. 13-01…and the Pending Decline in Lump Sum Settlements for DBA/WHCA Claims
On January 29, 2013, the Division of Federal Employees’ Compensation (“DFEC”) published FECA Bulletin No. 13-01. This Bulletin will change how we all administer or adjudicate Defense Base Act (“DBA”) claims with a War Hazards Compensation Act (“WHCA”) component (which I refer to as DBA/WHCA claims). The Bulletin states: Subject: Reimbursement of Unallocated Claims Expenses for Defense Base Act (DBA) settlements under the War Hazards Compensation Act (WHCA), and Allocating Payments in a DBA Settlement of Multiple Injuries for Purposes of Reimbursing only WHCA-Covered Injuries Background: The DBA provides a workers’ compensation system for workers injured or killed while performing work for government contractors outside the United States. 42 U.S.C. 1651(a). Employers and carriers (E/Cs) are liable to pay periodic compensation and medical benefits to an injured employee or death benefits to his/her survivors. The DBA, by incorporating most provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901-950 (LHWCA), also permitsRead more
Should I Seek War Hazards Reimbursement or File an Appeal?
One question I am often asked is whether an employer and carrier should seek reimbursement pursuant to the War Hazards Compensation Act (“WHCA”), see 42 U.S.C. § 1704, or file an appeal with the Benefits Review Board, see 33 U.S.C. § 921. This question arises after an Administrative Law Judge (“ALJ”) finds the employer and carrier liable for benefits in a contested claim that involved alleged “war-risk hazards.” My answer to this question is, “It depends.” In my opinion, when an ALJ issues a Decision and Order that concretely links a claimant’s injuries to “war-risk hazards,” reimbursement should be sought instead of an appeal. The Code of Federal Regulations (“CFR”) requires employers and carriers to litigate a Defense Base Act (“DBA”) claim as if the WHCA did not apply. See 20 C.F.R. § 61.102. They are required to (1) take advantage of any assignment or subrogation rights due to the liability of a third party;Read more
What is Reimbursable Under the War Hazards Compensation Act? And When is it Reimbursable?
The Defense Base Act (“DBA”) is a system of federal workers’ compensation applied to United States contractors working abroad on U.S. bases or pursuant to a U.S. contract. When these contractors sustain a work-related injury, they are entitled to benefits. In some instances, the event that caused the contractor’s injury qualifies as a “war-risk hazard.” See 42 U.S.C. 1711 and 20 C.F.R. 61.4. Generally, “war-risk hazards” include the discharge of weapons; any action by a hostile force or person, including insurrection or rebellion; the discharge of munitions intended for use in war; the collision of vessels and aircraft operating without customary navigation aids; and the operation of a vessel or aircraft in a zone of hostility or engaged in war activities. The benefits paid to a DBA claimant because of injuries caused by a “war-risk hazard” qualifies the employer, insurance carrier, or compensation fund that paid benefits to reimbursement under 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
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
New FECA Regulations Go Into Effect Today
Pursuant to the Department of Labor’s website, new regulations for the Federal Employees’ Compensation Act (“FECA”) go into effect today. A copy of the regulations can be found here. These regulations also effect the War Hazards Compensation Act (“WHCA”), including the direct payment regulation, 20 C.F.R. § 61.105. When a case is accepted for direct payment, the Division of Federal Employees’ Compensation furnishes medical care in accordance with FECA. Although no changes were made to the WHCA’s regulations, any changes to FECA’s medical care regulations will have a ripple effect on the WHCA’s direct payment regulation. The good news is that the regulations were amended to bring them up to speed with organizational changes at the Office of Workers’ Compensation programs, and to account for advancing medical billing technologies. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
No Statute of Limitations for War Hazards Reimbursement Requests
Is there a statute of limitations for an insurance carrier’s claim for reimbursement under the War Hazards Compensation Act? Without any statutory or regulatory language to the contrary, the answer is, “No.” If a Defense Base Act (“DBA”) claimant was injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711, then a carrier may seek reimbursement for the benefits it was required to pay on account of that injury. 42 U.S.C. § 1704. The carrier is “entitled to be reimbursed for all benefits so paid or payable, including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” Id. There is no statement in Section 104 that would limit the time when an initial request for reimbursement can be filed. There is, however, a time limit for appealing a denial, so long as theRead more
Justice Scalia Questions Validity of Deference to Agency Interpretations
Yesterday, the Supreme Court of the United States issued its opinion in Talk America, Inc. v. Michigan Bell Telephone Co. While the opinion, which dealt in part with the Federal Communications Commission’s interpretation of its regulations, is not particularly relevant for Longshore and Harbor Workers’ Compensation Act claims, Justice Scalia’s concurrence is nonetheless interesting. Justice Scalia discusses whether the present rule regarding deference to an agency’s interpretation of a statute is valid. In doing so, the concurring Justice questions the validity of Auer v. Robbins, 519 U.S. 452 (1997), an agency deference case, which is an unanimous decision that Judge Scalia authored. The following is taken directly from the concurrence: “It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary–indeed, an aRead more
