The Defense Base Act (DBA), 42 USC §1651, et seq., is an extension of the Longshore & Harbor Workers’ Compensation Act (LHWCA) which provides disability compensation and medical benefits to employees and death benefits to eligible survivors of employees of U.S. Government contractors who perform work overseas. This includes civilian contractors who are injured or killed while working in places such as Iraq, Afghanistan, Libya, Guantanamo Bay, Cuba, Pacific Island Atolls, and Southeast Asia, to name just a few. The DBA covers the following employment activities:
- Work for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside the United States, including those in the U.S. Territories and possessions;
- 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).
If any one of the above criteria is met, all employees engaged in such employment, regardless of nationality (including U.S. citizens and residents, host country nationals (local hires) and third country nationals (individuals hired from another country to work in a host country)), are covered under the Act.
If you are a civilian contractor and have been injured while working overseas, you are entitled to compensation, medical and other benefits under the Defense Base Act. The Defense Base Act is a federal law which differs significantly from ordinary state workers’ compensation laws. That is why you need a lawyer who specializes in handling Defense Base Act claims. The lawyers at O’Bryan Law have been specializing in these types of cases for years and are intimately familiar with the claims administration process before the U.S. Department of Labor and the formal hearing process before the Office of Administrative Law Judges. Don’t jeopardize your legal rights by letting someone with little or no experience in this area try to handle your case. Let the experienced Defense Base Act lawyers at O’Bryan Law help you get what you deserve.
Employees and Types of Injuries Covered
Employees eligible for DBA benefits include truck drivers, linguists, translators, security officers, clerical workers, mechanics, explosive experts, cooks, janitors, and virtually any other type of employee who happens to be injured while working overseas for a private employer pursuant to a military or United States Government construction contract.
The types of injuries sustained by civilian contractors overseas can encompass virtually anything, including: physical injuries, gunshot wounds, IED attacks, psychiatric injuries (eg., post-traumatic stress disorder, depression, etc.), hearing loss, occupational diseases (chemical/carcinogen exposure, heart attack, etc.), and cumulative trauma-type injuries. Moreover, the injury does not have to take place during normal working hours or be suffered on the base or authorized employer’s premises in order to be compensable. The United States Supreme Court has held that “all that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose.” O’Leary v Brown-Pacific-Maxson, 340 US 504, 507 (1951).
Aggravation of Pre-Existing Condition
The DBA also allows for recovery for aggravation of a previous condition. So long as the employment aggravates, accelerates, or combines with a disease or infirmity to produce death or disability for which compensation is sought, the employer will be responsible for the entire disability. In other words, there is no apportionment between the pre-existing condition and any aggravation thereof under the DBA.
Notice and Statute of Limitation
The DBA generally requires that an employee provide written notice of the injury to the employer within 30 days after the date of injury or death, or within 30 days after the employee or dependent becomes aware — or in the exercise of reasonable diligence or by reason of medical advice, should have been aware — that there is a relationship between the injury or death and the employment. For occupational diseases, this notice period is extended to one year. Failure to give notice does not bar a claim if the employer or insurance carrier had knowledge of the injury or death. Moreover, the District Director or Administrative Law Judge hearing the claim may excuse an untimely notice if he determines that the employer was not prejudiced by the alleged lack of notice.
Working overseas in a war zone can make it difficult to provide written notice to the employer, particularly if you are embedded with the U.S. military and rarely communicate with your civilian employer. At O’Bryan Law, we understand the peculiar nature of your working conditions and have successfully defeated employers’ notice defenses.
Statute of Limitations
A claim must be filed by an employee or dependent in the Office of the District Director within one year after the injury or death or one year from the date the employee or dependent became aware or should have become aware of the relationship between the injury or death and the employment. However, payment of compensation without a formal award extends the period of filing, and a claim may be filed within one year of the date of last payment. For victims of an occupational disease, the period for filing a claim is extended to two years and does not begin until the claimant is aware — or in the exercise of reasonable diligence or by reason of medical advice, should have been aware — of the relationship between the employment, disease, and death or disability.
When the employer or insurance carrier has knowledge of an injury and fails to file certain paperwork with the U.S. Department of Labor, the statute does not begin to run against the claim of the employee or dependents. This is a very important provision of the DBA as it often saves a claim that would otherwise be time-barred. Also, in most jurisdictions, the filing of a state workers’ compensation claim will also toll the statute of limitations.
Even if your injury happened more than a year ago, you owe it to yourself to contact the lawyers at O’Bryan Law to have your case reviewed. The lawyers at O’Bryan Law are well-versed in the technical provisions of the DBA and have successfully defeated employer/carrier statute of limitations defenses.
Under the DBA, the employer is obligated to furnish the employee with reasonable and necessary medical treatment inclusive of medical, surgical, nursing, hospitalization, drugs, diagnostic studies, faith healing, apparatus required for treatment, and reasonably necessary costs for travel required for the treatment. The employee also has the right to choose his own physician to treat his injuries. Insurance companies and employers rarely tell injured workers about their rights and frequently try to steer them to doctors who have the insurance company’s interests at heart. Let the lawyers at O’Bryan Law help protect your right to be treated by a doctor of your own choosing.
Compensation benefits under the DBA are based upon the employee’s average weekly wage at the time of the injury or death. This is usually calculated based upon the employee’s earnings for the 52 weeks prior to the injury. However, in the DBA context, most workers sign employment contracts with a specific duration — usually one year. The lawyers at O’Bryan Law have successfully argued that where an employee is injured shortly into his contract term, the average weekly wage (and corresponding compensation rate) should be based on the expected annual earnings as specified in the contract. This almost always results in a much higher compensation rate, particularly if the employee was earning far less in the U.S. before accepting the overseas employment.
Compensation for injury or occupational disease for total disability (whether it be permanent or temporary) is two-thirds of the average weekly wage. In cases where the disability is partial, the compensation is two-thirds of the difference between claimant’s pre-injury average weekly wage and his post-injury average weekly wage. In cases of death, the benefits are awarded to the worker’s beneficiaries in descending order and conditioned on their receiving no more than an aggregate of two-thirds of the employee’s average weekly wage.
Statutory Maximum and Minimum
The DBA provides a statutory maximum and minimum amount of compensation received for injury or death. The rates are based on the national average weekly wage computed on October 1 of each year. The statutory minimum compensation for total disability is 50% of a national average weekly wage. The statutory maximum compensation for death or disability is 200% of a national average weekly wage.
Classifications of Disability
There are four classifications of disability under the DBA: (1) permanent total disability; (2) permanent partial disability; (3) temporary total disability; and (4) temporary partial disability. A claimant establishes a case of permanent total disability when he demonstrates that the injuries or illness prevent him from returning to his prior job. At that point, the claimant has established a prima facie case, and the burden shifts to the employer to prove suitable alternate employment. Suitable alternate employment means any employment that the employee, given his age, education, background, restrictions and limitations could secure, if he diligently tried. The employer must point to actual, not theoretical, jobs to establish suitable alternate employment. If such suitable alternate employment is proved by the employer, the claimant’s disability is characterized as a permanent partial disability. Compensation is then calculated as two-thirds of the difference between the claimant’s pre-injury average weekly wage versus his post-accident average weekly wage in the suitable alternate employment.
An employee’s disability is classified as temporary total where, as a result of the injury or illness, the employee is temporarily unable to perform his actual job. This is how the disability is normally characterized following an employee’s injury while he is receiving medical treatment. The disability continues to be characterized as temporary total disability until the claimant’s doctors declare him to have reached maximum medical improvement. Thereafter, the disability is characterized as permanent in nature and either total or partial in character.
Certain maritime injuries under the DBA are paid pursuant to a compensation schedule where the worker loses the use of a specific body part, such as arms, legs, hands, feet, eyes, fingers, toes, and hearing. After the injury or loss of use to any scheduled member becomes permanent, the employee is entitled to a specified number of weeks of compensation based on the percentage loss or impairment to that member. For example, the complete loss of the employee’s first finger entitles him to 46 weeks of compensation. Likewise, the complete loss of a foot entitles the claimant to 205 weeks of compensation. If, however, the injury to the foot results in a 10% permanent impairment, the claimant would be entitled to 20.5 weeks of compensation.
Any claim under the DBA may be settled by the parties. If the settlement is for a claim involving a permanent disability (either total or partial), a calculation of the expected future compensation benefits, reduced to present value, is ordinarily made. Likewise, if future medical is expected, the parties negotiate an amount representing the present value of the anticipated future medical care required. All settlements must be approved by the U.S. Department of Labor or Administrative Law Judge assigned to the case.
If the employer/carrier refuses to furnish compensation or medical treatment on or before the thirtieth day after receiving written notice of the claim and the employee is forced to retain an attorney, the employer/carrier becomes liable for assessment of attorney fees. Thus, unlike most state workers’ compensation claims, the employer/insurance carrier is responsible for paying the employee’s attorney fees in contested cases where the employee settles his claim or is successful in obtaining any additional benefits. Similarly, if the employer/carrier voluntarily furnishes compensation and medical treatment but a controversy arises and a conference is held with the U.S. Department of Labor, the employer/carrier must accept the recommendation of the OWCP claims examiner within 14 days or it becomes liable for the assessment of attorney fees if the attorney is successful in prosecuting the claim.
All attorney fees must be approved by the U.S. Department of Labor or Office of Administrative Law Judges. Moreover, attorney fees must be based on an hourly rate, rather than a contingency fee contract. It is therefore illegal for an attorney representing a claimant under the Defense Base Act to charge a contingency fee.