Last month, Representative Stephen Lynch reintroduced a proposed amendment to the Defense Base Act (H.R. 312). This is a re-introduction of an amendment (H.R. 5721) he proposed in late 2014 to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.” Ultimately, Rep. Lynch’s amendment appears destined to fail. The Reason for H.R. 5721, and now H.R. 312: Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya. Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack. He was unmarried, with neither children nor other dependents. Yet, he had activated a mandatory Defense Base Act insurance policy before deploying toRead more
Insider Attacks Cause Compensable Defense Base Act Claims
News surfaced this past weekend about an insider attack at Kabul’s military airport that left three contractors dead. According to news sources, the three contractors—all American—worked as aircraft mechanics for Praetorian Standard, a company headquartered in Fayetteville, NC. News sources, and Praetorian, released the names of the contractors, Matthew E. Fineran, Walter D. Fisher, and Jason D. Landphair. Our thoughts and prayers are with their families and loved ones, as they are with Bradley James, who was injured in the small arms fire attack. Insider attacks, also referred to as “green-on-blue” attacks, are somewhat common occurrences in Afghanistan. In many situations, these events can lead to compensable Defense Base Act claims. The Defense Base Act Is Workers’ Compensation. The Defense Base Act is a system of federal workers’ compensation. Generally, the DBA covers defense contractors working outside of the United States under government contracts or on U.S. military bases. IfRead more
Is Sarbanes-Oxley Really This Fishy?
Next week the Supreme Court will hear arguments in Yates v. United States, a Sarbanes-Oxley anti-shredding case. The Sarbanes-Oxley Act was enacted after the Enron scandal. One of the provisions of the Act is commonly known as the “anti-shredding provision,” which criminalizes knowingly altering, destroying, mutilating, concealing, covering up, falsifying, or making a false entry in “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration” of any federal matter. Why am I mentioning Sarbanes-Oxley on a maritime blog? Because Yates v. United States involves the federal government’s application of the “anti-shredding provision” to a commercial fisherman who directed his crewmen to throw undersized fish back into the sea, after receiving a civil citation and being told to bring the fish to dock to be destroyed. That’s right…throwing fish back into the sea landed one fisherman in the Sarbanes-Oxley anti-shredding net. Read more
Is Erik Prince Right? Should We Fight ISIS with Defense Contractors?
Is Erik Prince, the ex-Blackwater CEO, right? Should the United States use Defense Base Act contractors to fight ISIS? On his blog for Frontier Services Group, Mr. Prince wrote a post entitled, “Chairman’s Column – Thoughts on Countering ISIS,” which I’ve reproduced in full below: As someone who spent many years operating in Iraq, Afghanistan, and other underdeveloped countries facing existential security threats, I was recently asked about my reaction to President Obama’s plan for fighting ISIS. My immediate response is that the President’s current plan seems half-hearted at best. American air power has significant reach and accuracy, but ultimately will be unable to finish the job of digging ISIS out of any urban centers where they may seek shelter amongst the populace. Clearing operations ultimately fall to the foot soldier. The Iraqi army is demonstrably inept after billions spent on training and equipping them. Providing them more gear isRead 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
The Supreme Court Refused to Review Lincoln v. Director, OWCP
On October 14, 2014, the Court issued its second Order List for the 2014 term. One of the cases that the Supreme Court denied was Lincoln v. Director, OWCP. Lincoln was an interesting case that involved the attorneys fee provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the meaning of the term “compensation.” The facts of Lincoln are fairly straight forward. The employee filed a hearing loss claim on May 24, 2011. Initially, the employer filed a notice of controversion stating that the hearing loss was noise-induced, but it needed additional information to determine the correct disability payment. On June 14, 2011, the district director served notice that the claim was filed. Then, on July 7, 2011, the employer voluntarily paid employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of permanent partial disability benefits under the maximum compensation rate.Read more
The Supreme Court Denied Review in Dize and Other Maritime Cases
The Supreme Court is back in session. On October 6, 2014, the Court issued its Orders list, wherein a large number of cases were denied certiorari. Accordingly, the Court will not review: Dize v. Association of Maryland Pilots. The question presented in Dize was whether, when applying the Chandris, Inc. v. Latsis thirty-percent rule–that, ordinarily, a qualifying “seaman” under the Jones Act must spend thirty percent or more of his time in service of a vessel in navigation–a court may consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or whether a court must categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held. Gonzalvez v. Celebrity Cruises, Inc. The petitioners asked the Court to consider whether seamen are statutorily exempt from the 3-month limitationsRead 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
Longshore Conferences and the Louisiana Comp Blog
First, there’s a new workers’ compensation blog in town. Louisiana Comp Blog (http://compblog.com/), which is published by LCI Workers’ Comp, looks great. I’m a fan of the design and the content, and I look forward to many insightful discussions in the future. I have already subscribed and I suggest you do the same. The following snippet explains Louisiana Comp Blog’s mission: Louisiana Comp Blog’s fresh and original content ranges from features and profiles of industry leaders to commentary/opinion articles and event coverage. We also publish a daily Comp News Bulletin every morning, which allows our readers to get a head start on their day with the top three to five stories affecting Louisiana’s workers’ comp industry on both the local and national scale. All of this makes us your one-stop source for the best workers’ comp reporting from across Louisiana. Second, we are one month away from the annual DOLRead more
Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ
Claimant was injured while working as a linguist in Iraq. His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute. Employer paid some of the medical bills in question after it received itemized statements. Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses. The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation. While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation. The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries. After the ALJ remanded the claim,Read more
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