INTRODUCTION

In recent years, it has become commonplace to learn of the number of “boots on the ground” in Iraq and Afghanistan. Along with these mere statistics, we also learn of the grim details of injury and death to our military men and women while serving the United States overseas. Many times, alongside these “wounded warriors” are civilian casualties. As of December 31, 2008, U.S. Central Command reported approximately 259,400 contractor personnel working for the Department of Defense in Iraq, Afghanistan, and the U.S. Central Command area of responsibility. While most of us hope and believe that the injured soldiers receive the best medical care and rehabilitation to move forward post-injury, a relatively untold and possibly unknown story is the remedy provided for injured civilian contractors abroad.

What becomes of the construction worker injured while rebuilding a school in Iraq? Or the communication technician electrocuted while installing tactical video surveillance at military training sites abroad? Or the canine trainer killed by a blast alongside his bomb sniffing dog? Or the USO performer who literally breaks a leg? In each of these cases, their “claims” would likely fall within an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. Section 901 et. seq.

The Defense Based Act (DBA) affords the same rights and remedies as the LHWCA, however, its coverage is well beyond the docks and shorelines of our coasts. It is the DBA that reaches out to the furthest corners of our United States’ involvement overseas to ensure some measure of protection and remedy to that injured construction worker in Iraq, the communication technician, and thousands of other civilian contractor personnel deployed overseas. While by no means comprehensive, this article will shed some light on their remedies and the coverage provided under the DBA.

WHO IS COVERED UNDER THE DEFENSE BASE ACT?

In general terms, the DBA applies to employees of contractors who contract with the United States to provide services on or off military bases overseas. This includes public works contracts, service jobs, rebuilding contracts, and defense contracts. Specifically, employees engaged in any one of the following are covered under the DBA:

· Work for private employers on United States’ military bases or on any lands used by the U.S. for military purposes outside of the United States;

· Work on public work contracts with any U.S. government agency, including construction and service contracts in connection with national defense or with war activities outside the United States;

· Work on contracts approved and funded by the U.S. under the Foreign Assistance Act, which among other things provides for cash sale of military equipment, materials, and services to its allies, if the contract is performed outside of the United States;

· Work for American employers providing welfare or similar services outside the United States for the benefit of the Armed Services, e.g. the United Service Organizations (USO).

WHO IS RESPONSIBLE FOR PROVIDING DBA COVERAGE?

To the extent the DBA is an extension of the LHWCA, the insurance requirements under the DBA are identical to those found in the LHWCA. Under the LHWCA, every employer must either secure insurance for the payment of worker’s compensation benefits provided under the DBA or be permissibly self-insured.

The failure of an employer to secure the required insurance or self-insurance may subject that employer to liability for civil damages arising out of any injury or death. In addition, an employer who fails to secure the payment of compensation when required shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than one year, or both. If the employer is a corporation, the president, secretary, and treasurer shall also be severally liable for such fine and imprisonment. These three corporate officers shall also be personally liable, jointly and severally with the corporation, for any compensation or other benefit payable under the DBA with respect to the injury or death of any of its employees.

WHAT BENEFITS ARE AVAILABLE UNDER THE DEFENSE BASE ACT?

The DBA provides disability and medical benefits to covered employees injured in the course of employment and death benefits to eligible survivors of employees killed in the course of employment. Benefits are due regardless of fault.

Temporary total disability is paid up to a maximum rate of $1,200.62 per week. Depending upon the nature of the injury, employees may be entitled to either a scheduled award of benefits paid over a finite number of weeks or partial disability based on lost earnings. Permanent total disability and death benefits may be payable for life. Funeral expenses up to $3,000.00 are also paid.

HOW IS THE DEFENSE BASE ACT ADMINISTERED?

The U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP), Division of Longshore and Harbor Workers' Compensation (DLHWC), administers the DBA through eleven district offices located throughout the United States. Employees have one year after the date of injury or last payment of compensation, whichever is later, to file a written claim for compensation with the OWCP district office. In the event of certain occupational disease cases, the time for filing may be extended to two years.

The OWCP district office monitors payment of compensation and the timely conveyance of medical benefits. In the event of a dispute, informal conferences will be conducted and recommendations made to the parties. Should an informal resolution not be achieved, the parties may request a formal hearing before the Office of Administrative Law Judges (OALJ). From March 9, 2005 until July 16, 2008, the OALJ procedure was to conduct such hearings on an expedited basis (within 45-60 days) for those injuries occurring in the war zones of Iraq and Afghanistan. As of July 16, 2008, this policy was modified and expedited hearings are held only upon written request and under specified circumstances. An appeal process is available to the Benefits Review Board and the Circuit Court of Appeals.

WHERE CAN I FIND MORE INFORMATION ABOUT THE DEFENSE BASE ACT?

This article is intended as a basic primer to an area of the law which few practitioners, adjusters, and employers may even be aware of. In light of the extent of the United States’ involvement overseas and the specific involvement by many California employers and contractors in these overseas works, more information may be desired. Please refer to the following:
http://www.dol.gov/esa/owcp/dlhwc/DBAFaqs.htm.