Defense Base Act and War Hazards Compensation Act

94 Pages·2010·0.73 MB·English

by  Roger A. Levy

Defense Base Act and War
Hazards Compensation Act
Roger A. Levy
Laughlin Falbo Levy & Moresi LLP
255 California Street, Suite 600
San Francisco, CA 94111-4912
[phone]
[phone] [fax]
[email protected]
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Roger A. Levy joined Laughlin, Falbo, Levy & Moresi, LLP as partner in 1985,
and became Of Counsel in 1999. His practice focuses on the defense of work-
ers’ compensation matters before both state and federal administrative agen-
cies. Mr. Levy’s primary area of specialization is the defense of cases brought
under the United States Longshore and Harbor Workers’ Compensation Act,
including its extensions, the Defense Base Act, the Non-Appropriated Fund
Instrumentalities Act, and the Outer Continental Shelf Lands Act, as well as
related maritime civil cases such as those brought under the Jones Act and Suits
in Admiralty Act. Since 2004, Mr. Levy has served as Mediator in cases related
to these areas of practice. Mr. Levy has presented at numerous conferences,
seminars and conventions locally and nationally for agency, industry and pro-
fessional groups including the American Bar Association. His memberships
include: the California State Bar Association, American Bar Association, Indus-
trial Claims Association, Longshore Claims Association, and Northwest Claims
Association.
This material was excerpted from Defense Base Act and War Hazards Compen-
sation Act Handbook 2010 Edition (LexisNexis). Copyright 2010 by LexisNexis.
All rights reserved. Reprinted with permission.
Defense Base Act and War
Hazards Compensation Act
Table of Contents
Presentation .............................................................................................................................................................835
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Presentation
Chapter 1
Introduction to Defense Base Act
INTRODUCTION TO DEFENSE BASE ACT
DBA&WHCAHANDBOOK
Introduction
By David M. LinkerFreedman & Lorry, PC
Synopsis
§ 1.01 History and Purpose of Defense Base Act
§ 1.02 Adoption of Substantive LHWCA Law
§ 1.03 Increase of Defense Base Act Claims
§ 1.04 Topics Covered in This Handbook
§ 1.05 Common Terms and Acronyms
§ 1.06 Helpful Websites and Blogs
§ 1.07 Resources for Defense Base Act Cases
§ 1.08 LexisNexis Related Publications
§ 1.01
History and Purpose of Defense Base Act
The Defense Bases Act of August 16, 1941, which is set forth in 42 U.S.C.S. §§ 1651–
1654, provides that except as modified by the Act, the provisions of the Longshoreman and
Harbor Workers Compensation Act, approved March 4, 1927, shall apply in respect to an injury
or death of any employee engaged in any employment at any military, air, or naval base acquired
after January 1, 1940 by the United States from any foreign government or any lands occupied or
used by the United States for military or naval purposes in any territory or possession outside the
continental United States, irrespective of the place where the injury or death occurs. By January
1, 1940, the Second World War had started and the United States had contracted with foreign
governments to build military bases in foreign lands. The employees of many American
contractors were engaged in work at these bases, and the Defense Base Act extended the coverage
of the Longshoreman and Harbor Workers’ Compensation Act to include them [see S. Rep. No.
540, 77th Congress, 1st Session (1941)].
The overseas work noted above dramatically increased after the United States entered the
war following the Japanese government’s attack on Pearl Harbor on December 7, 1941. As World
War II escalated, the contractors’ employees working on projects related to national defense but
not located at military bases were not covered under the Defense Base Act, with the result that the
persons employed did not have a single workers’ compensation remedy [seeUniversity of
Rochester v. Hartman, 618 F.2d 170, 172 (2nd Cir. 1980)].
Congress responded by amending the DBA in December of 1942 to include all employees
engaged in public works outside the continental United States so as to remedy a patchwork of
uneconomic and discriminatory compensation schemes and to assist contractors in attracting
qualified workers by providing a uniform compensation system at reasonable rates [see generally
S. Rep. No.1886, 85th Congress, 2nd Session, reprinted in (1958) U.S. Code Cong. & Admin.
News, pp. 3321, 3324].
Defense Base Act and War Hazards Compensation Act v Levy v 835
In 1953, Congress amended the Defense Base Act to change the frame of reference from
World War II to one of national defense in order to extend coverage to overseas government
construction projects conducted during periods when there was no declared state of war [HR.
Rep. No. 490, 83rd Congress, 1st Sess., reprinted in (1953) U.S. Code & Admin.News, pp. 1783-
1784].
In 1958, Congress converted the Defense Base Act from temporary to permanent
legislation after determining that the United States’ overseas commitments would not diminish
substantially in the foreseeable future [see S. Rep. No. 1886, 85th Congress, 2nd Session,
reprinted in (1958) U.S. Code & Admin.News pp. 3321, 3324].
As stated in Rochester, the Defense Base Act “was intended and designed for the
protection of the civilian work force engaged in defense related employments outside the
continental United States” [University of Rochester v. Hartman, 618 F.2d 170, 173 (2nd Cir.
1980);see alsoRoyal Indemnity Co. v. Puerto Rico Cement Corp., 142 F.2d 237, 239 (1st Cir.),
cert. denied,323 U.S. 756 (1944) (purpose of DBA was to provide substantially the same relief to
outlying territories as existing law afforded employees in United States)]. The Rochester court
further explained [University of Rochester v. Hartman, 618 F.2d 170, 173–174 (2nd Cir. 1980)]:
The legislative history of the DBA reveals it has grown from a
limited response to the overseas military demands of World War
II to an Act covering all overseas United States government-
related construction projects, national defense activities, and
service contracts thereto. The Act was originally intended to
cover civilians employed at overseas military bases, was later
extended to cover civilians working on overseas construction
projects for the United States government or its allied, and was
finally extended to protect employees fulfilling service contracts
tied to such a construction project or to a national defense
activity. The sine qua non of the Act’s applicability has always
been a military or a United States government construction
connection.
§ 1.02
Adoption of Substantive LHWCA Law
The Defense Base is an extension of the Longshoreman and Harbor Workers’
Compensation Act, 33 U.S.C.S. § 901 et seq. Congress’ power to extend the substantive
provisions of the Longshoreman and Harbor Workers’ Compensation Act to the Defense Base
Act was affirmed by the United States Court of Appeals for the First Circuit in Royal Indemnity
Co. v. Puerto Rico Cement Corporation [142 F.2d 237 (1st Cir.),cert. denied,323 U.S. 756
(1944) ( noting that Congress had the power and intended to provide injured workers with
substantially the same relief in outlying territories as the existing law afforded employees in
United States)].
The Defense Base Act itself contains no substantive provisions; the entirety of the Act
contains some procedural and definitional provisions specifically tailored to Defense Base Act
claims. All of the Defense Base Act’s “substantive” provisions are found in the Longshore Act
[seeAFIA/CIGNA Worldwide v. Felkner, 24 BRBS 154 (CRT) (5th Cir. 1991)]. The Defense
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Base Act is a general reference statute that incorporates not only the version of the Longshoreman
and Harbor Worker’s Compensation Act in force at the time the Defense Base Act was enacted,
but all subsequent Longshoreman and Harbor Workers Compensation Act amendments as well
[seeOWCP v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977);see also “The Defense Base
Act—A Growth Industry?” by Kerry J. Anzalone, reprinted with permission from the Benefits
Review Board Service—Longshore Reporter (LexisNexis Matthew Bender) at
http://www.oalj.dol.gov/public/longshore/references/reference_works/the_defense_base_act(2004
).htm].
§ 1.03
Increase of Defense Base Act Claims
Defense Base Act cases (and to an even lesser extent, War Hazards Compensation Act
cases) have historically made up a small minority of “longshore claims” [“The Defense Base
Act—A Growth Industry?” by Kerry J. Anzalone, reprinted with permission from the Benefits
Review Board Service—Longshore Reporter (LexisNexis Matthew Bender) at
http://www.oalj.dol.gov/public/longshore/references/reference_works/the_defense_base_act(2004
).htm]. However, as the number of Defense Base Act employees has increased exponentially, so
have the number of Defense Base Act claims. According to the Department of Labor, from 2001
to March 31, 2008, nearly 1,300 deaths and over 9,600 time loss injuries from Iraq and
Afghanistan have been reported under the Defense Base Act.
As reported by the Los Angeles Times in July 2007, the number of U.S.-paid private
contractors in Iraq exceeds that of American combat troops. More than 180,000 civilians (21,000
Americans, 43,000 foreigners and 118,000 Iraqis) are working in Iraq under U.S. contracts
compared to 160,000 soldiers and a few thousand civilian government employees currently
stationed in Iraq [“Private Contractors Outnumber U.S. Troops in Iraq”, by T. Christian Miller,
Los Angeles Times, July 4, 2007].
• For further information on Iraq contractors and data from CENTCOM (Central
Command) see
http://www.epluribusmedia.org/features/2007/20070708_contracting_numbers.html
• For a list of top contractors in Iraq and Afghanistan covering the period 2002 to 2004,
see http://www.publicintegrity.org/wow/resources.aspx?act=total
• To view the Congressional Research Service “Report for Congress on Private Security
Contractors in Iraq: Background, Legal Status, and Other Issues” (Updated July 11,
2007) see http://fas.org/sgp/crs/natsec/RL32419.pdf
• To view the United States House of Representatives report on “Private Military
Contractors in Iraq: An Examination of Blackwater’s Actions in Fallujah” (September
2007), see http://fas.org/sgp/crs/natsec/RL32419.pdf
• For Committee on Oversight and Government Reform hearings on DBA insurance, see
http://oversight.house.gov/story.asp?ID=1944
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These non-Americans may have been employed by foreign companies who themselves
have contracts with agencies of the U.S. government or may be subcontractors or sub-
subcontractors of such companies. Many have even been directly employed by U.S. companies
for one reason or another. In many cases they are simply willing to work for lower wages than
Americans, and in others they may possess a skill that cannot be readily found in Americans. In
the case of the Iraq War what most obviously comes to mind for the latter are Arabic to English
translators. However, these workers are not entitled to all that American workers or their
dependents might be entitled to for the same injuries or deaths.
COMMENTARY:
Due to recent world events, the number of Defense Base Act cases has sharply increased.
It is important to note that the Defense Base Act, with or without the continuation of the Iraq war,
is here to stay for the foreseeable future. The United States will maintain its involvement in
“extraterritorial activity” for many years. War is not a necessary “ingredient” for the Defense
Base Act to apply to a workforce.
§ 1.04
Topics Covered in This Handbook
This handbook is organized as follows:
• Ch. 1 provides the reader with a basic introduction to the Defense Base Act, its history
and purpose, current events, and a list of common acronyms and terminology
• Ch. 2 discusses coverage, i.e., the categories of work within the Defense Base Act
• Ch. 3 addresses challenges and issues for Defense Base Act underwriting
• Ch. 4 explains waivers under the Defense Base Act
• Ch. 5 covers exclusivity under the Defense Base Act
• Ch. 6 discusses the types of benefits under the Defense Base Act
• Ch. 7 explains the claims process, i.e., adjudication and appeals under the Defense Base
Act
• Ch. 8 covers the discovery quagmire related to foreign workers under the Defense Base
Act
• Ch. 9 discusses the calculation of average weekly wage under the Defense Base Act
• Ch. 10 explains the zone of special danger doctrine, which was created by the U.S.
Supreme Court, and how the circuit courts and administrative bodies have expanded the
doctrine
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• Ch. 11 covers commutations, settlements and death benefits
• Ch. 12 discusses the War Hazards Compensation Act, its history and purpose, the
meaning of war risk hazard, and the process for detention claims, among other things
• Ch. 13 discusses post-traumatic stress disorder and stress-related psychiatric injuries
• Appendix—DBA and WHCA Statutes
• Index
§ 1.05
Common Terms and Acronyms
The following list contains acronyms and terminology commonly involved in Defense
Base Act cases. For more acronyms related to the military, see the Department of Defense
dictionary at http://www.dtic.mil/doctrine/jel/doddict/acronym_index.html.
AIF—Anti Iraqi Forces
“Aisle or window, chicken or pasta”—Supervisors often tell contractors to pack up their bags
and leave if they can’t stand the harsh conditions overseas (aka “Get on the next plane out of
here”)
ALJ—Administrative Law Judge
Allies—Any nation with which the U.S. is engaged in a common military effort or with which the
U.S. has entered into a common defensive military alliance
AMAGuides—Guides to the Evaluation of Permanent Impairment (American Medical
Association)
AMCIT—American citizen
ASR—Alternate supply route
AWW—Average Weekly Wage
Blanket waivers—Blanket waivers are those issued to a government agency (U. S. Agency for
International Development, Department of State, etc) and apply to all Insureds working for those
agencies. They are usually issued based on the location of the contract. Cf. “Specific waivers”,
below.
BOLO—Be on the look-out
BRB—Benefits Review Board
BRBS—Benefits Review Board Service—Longshore Reporter (LexisNexis Matthew Bender)
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BSC—Blackwater Security Consulting
BW—Biological weapons
CAS—Close air support
CASEVAC—Casualty evacuation
CCOs—Contingency Contracting Officers
CENTCOM—United States Central Command
C.F.R.—Code of Federal Regulations
CNB—Chemical, nuclear, biological weapons of mass destruction
CNBR—Chemical, nuclear, biological, and radiation weapons of mass destruction
COE—U S. Army Corps of Engineers
Commutation—A method of reducing money to present value when there are no entitlement
issues and benefits are payable based upon the maximum allowed by statute. In comparison,
settlements may be structured, i.e. paid out over time, whereas a commuted award must be paid in
one lump sum. Medical benefits may be settled, but they may not be commuted. In the case of
commutations, compensation entitlement is reduced by 50% under Section 2(b) [see42 U.S.C.S.
§ 1652(b)].
Continental United States—The States and District of Columbia
Contingency—An emergency involving military forces caused by natural disasters, terrorists,
subversions, or by required military operations. See MTW, SSC, MOOTW, and DD/ER, below.
Contingency contracting—Direct contracting support to tactical and operational forces engaged
in the full spectrum of armed conflict and military operations, both domestic and overseas,
including the four types of contingencies. See Contingency, above.
Contingency operations—A military operation designated by the Secretary of Defense as an
operation in which members of the armed forces are or may become involved in military actions,
operations or hostilities against an enemy of the U.S. or against an opposing military force, or
results in the call or order to, or retention on, active duty of members of the uniformed services,
or any other provision of law during a war or during a national emergency declared by the
President or Congress
Contractor—Any individual, partnership, corporation, or association, and any trustee, receiver,
assignee, successor, or personal representative thereof. The rights, obligations, liability, and
duties of the employer under the Longshore Act apply to such contractors.
CONUS—Continental United States
Coverage—The statutory “coverage” of the DBA is defined generally by § 1(a) of the Act [42
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