In a new published Defense Base Act (“DBA”) claim, the Benefits Review Board further clarified the zone of special danger doctrine. A widow filed a claim for death benefits after her husband was killed in Tbilisi, Georgia, while working for the employer. The decedent’s job required that he work five days per week, and that he remain on-call for emergencies. In addition to wages, the decedent received a monthly allotment for housing and utilities, as well as vouchers for a taxi service. While riding in a taxi going to the grocery store, the decedent’s vehicle was struck head-on by another car, causing his death. Death benefits are owed under the Longshore and Harbor Workers’ Compensation Act, as extended by the DBA, when the decedent died in the “course of employment.” For Defense Base Act claims, the Supreme Court has held the “an employee may be within the course of employment,Read more
Defense Base Act Contractor Denied Vaccine Act Compensation
Petitioner worked for Fluor as a military contractor. On February 1, 2012, while employed by Fluor in Afghanistan, he received a flu vaccine and subsequently developed Guillain-Barre Syndrome. The flu vaccine was a Department of Defense requirement, and was distributed at a Fluor clinic at Bagram Airfield. A few weeks after receiving the shot, Petitioner began to feel weakness and numbness in his extremities. On March 5, 2012, he filed a claim for Defense Base Act (“DBA”) benefits. A month and a half later, Petitioner filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”). The United States Court of Federal Claims was tasked with determine whether Petitioner qualified for Vaccine Act compensation. Petitioner argued that as a government contract worker stationed in Afghanistan, he was either a member of the Armed Forces or a federal employee. Even though he filed a DBA claim,Read more
Military Contractors Are a Way of Life, Now and in the Future
How important are contractors to the Department of Defense? Very. Contractors are indispensable. According to the Congressional Research Service (“CRS”), “the military is unable to effectively execute many operations, particularly those that are large-scale and long-term in nature, without extensive operational contract support.” The May 2013 CRS report entitled Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress is an enlightening report. Although there are some portions of the report that I disagree with, the CRS did a good job explaining the importance of defense contractors: DOD has long relied on contractors to support overseas military operations. Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.” Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–bothRead more
BRB: ALJs are Not Required to Use K.S. to Calculate Average Weekly Wage
The Benefits Review Board (“BRB”) recently discussed average weekly wage calculations in an unpublished Defense Base Act decision. In Hamidzada v. Mission Essential Personnel, the Employer and Carrier appealed an administrative law judge’s (“ALJ”) average weekly wage decision. The ALJ calculated Claimant’s average weekly wage using only the wages Claimant earned overseas during his employment for Employer in Afghanistan. Employer appealed, arguing that the ALJ erred in relying on the BRB’s K.S. decision–which used to be the seminal average weekly wage decision for DBA claims–because a federal court vacated K.S. Why was K.S. so important? For years, K.S. was used in connection with Proffitt v. Serv. Employers Int’l to more or less bar ALJs from blending together overseas and stateside earnings to determine an injured worker’s average weekly wage. Instead, K.S. wanted average weekly wage calculations to be based on only overseas wages when the employee was paid “higher wagesRead more
BRB Questions Whether Work or Adultery and Drugs Led to Suicide
Decedent worked as a pest control specialist in Iraq for one and a half years. Upon returning to the United States in June 2006, he learned that his wife had committed adultery while he was away, and that his daughter developed a drug problem. A few weeks later, Decedent checked himself into a hotel room where he shot and killed himself. Claimant, Decedent’s widow, filed a claim for death benefits contending that Decedent’s suicide was related to his employment. An administrative law judge (“ALJ”) agreed, noting that “the zone of special danger could have been a cause of [Decedent’s] suicide.” The ALJ noted Decedent’s exposure to mortars, a hazardous waste spill, a colleague’s injury or death, and even the Decedent’s physical separation from his family as all falling under the zone of special danger. After the ALJ awarded benefits, the Employer and Carrier appealed to the Benefits Review Board (“BRB”)Read more
Plaintiff’s Assault Lawsuit Dismissed Because the DBA Was His Exclusive Remedy
Plaintiff filed a lawsuit in the Eastern District of Virginia alleging that his supervisor assaulted him while they were both working for a Defense Contractor at Camp Speicher in Iraq. Plaintiff attempted to hold his employer liable for intentional infliction of emotional distress and for failing to provide timely medical care after the assault. The district court dismissed Plaintiff’s claims for lack of subject matter jurisdiction, determining that Plaintiff’s remedy was found in the Defense Base Act “DBA,” and not in a tort suit. As stated by the court (with internal citations omitted): The assault at issue in this case occurred while Mason was working at Camp Speicher, a U.S. military base that was captured during the Iraq war. Thus, the DBA applies and provides Mason’s exclusive remedy against Sallyport as long as the assault at issue falls within the DBA’s definition of “injury.” Mason contends that it does not,Read more
Defense Base Act Contractor On the Daily Show with Jon Stewart
Two nights ago, Jon Stewart aired an interview with Blackwater founder Erik Prince, who was promoting his book Civilian Warriors. Take a moment to watch the interview. It’s pretty interesting–and entertaining. Why is this applicable to Navigable Waters? Because many of Blackwater’s employees qualify as Defense Base Act (“DBA”) contractors. Jon Stewart’s interview touches on a number of topics that are often debated in the DBA community. First, in Part 1 he asks whether Blackwater contractors were mercenaries. Mr. Prince disputed the label, but there is no disputing that Mr. Stewart’s question is legitimate. DBA personal security contractors are paid sums that far exceed the pay earned by soldiers to work in the same environment and face the same threats. But is a contractor’s service the same as a soldier’s service? Should contractors who earn $150,000 to $200,000 be likened to soldiers, who perform the same tasks in the sameRead 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
The DBA Applies if Claimant Worked Under a Contract “Approved and Financed” by the U.S.
Claimant, an airplane mechanic in Abeche, Chad, alleged work-related injuries to his hip, lower back and legs. Employer successfully argued to the administrative law judge (“ALJ”) that the Defense Base Act did not cover Claimant’s injuries because Claimant was not working under a contract with the United States. Instead, Employer’s “humanitarian air transport services in Chad [were] funded through a cooperative agreement with the United States Department of State (DOS) and a grant from the United States Agency for International Development (USAID) . . . .” Because the term “contract” was not defined by the Defense Base Act, the ALJ interpreted “contract” in accordance with the Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. § 6301, et seq. The ALJ determined that Claimant was not working under a “contract” within the meaning of Section 1(a)(5) of the Defense Base Act. Consequently, the ALJ granted Employer’s Motion for Summary Decision. SectionRead more
Can DFEC Force Employers and Carriers to Re-Litigate a Defense Base Act Claim?
Generally speaking, when a defense contractor is injured by a “war-risk hazard,” the carrier that pays benefits is entitled to reimbursement under the War Hazards Compensation Act (“WHCA”). See 42 U.S.C. § 1704. When the injured worker resides in the United States or Canada, carriers often seek reimbursement and the direct payment of future benefits. See id.; see also 20 C.F.R. § 61.105. When the Division of Federal Employees’ Compensation (“DFEC”) agrees to directly pay future benefits, it will notify the carrier and the claimant that, on a particular date, DFEC will assume all future indemnity and medical payments. Even after DFEC takes over the administration of a claim, the modification provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) remains a viable option for reducing—or increasing—future benefits. See 33 U.S.C. § 922. Section 22 of the LHWCA allows modification of a compensation award on the ground of aRead more
