DEFENSE BASE ACT INJURY CLAIMS
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DBA–Purpose of the Defense Base Act
Defense Base Act Injury Information. — Using the framework of the LHWCA, other acts have generally adopted substantive Longshore law, with some variation and modification for particular needs. In the case of the Defense Base Act or DBA, it specifically states that in respect to the injury or death of any employee engaged in any employment noted within the DBA,…where such contract is to be performed outside the continental United States…for the purpose of engaging in “public work, ” the LHWCA shall apply. 42 U.S.C. § 1651. The Second Circuit best summed up the purpose of the DBA in University of Rochester v. Hartman, 618 F.2d 170 (2d Cir. 1980): The DBA 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 allies, and was finally extended to protect employees fulfilling service contracts tied to such a construction project or to a national defense activity. As the Second Circuit noted, the sine qua non of the [DBA’s] applicability has always been a military or a United States government construction connection. However, this can leave “coverage” to have a very wide scope.
The purpose of the DBA “was to provide substantially the same relief to outlying territories…as the existing law affords employees in the United States….” Royal Indemnity Co. v. Puerto Rico Cement Corp., 142 F.2d 237, 239 (1st Cir.), cert. denied, 323 U.S. 756 (1944), citing H.R. Rep. No. 77-1070.
Adoption of Substantive LHWCA Law
While there are several distinctions between Defense Base Act claims and other LHWCA claims (discussed infra), DBA claims on the whole tract LHWCA claims procedurally. 42 U.S.C. § 1651. (“Except as herein modified, the provisions of the [LHWCA] approved March 4, 1927 (44 Stat. 1424), as amended, shall apply in respect to the injury or death of any employee [covered by the DBA]…); AFIA/CIGNA Worldwide v. Felkner, 24 BRBS 154(CRT)(5th Cir. 1991)(The compensation protocol provided by the LHWCA governs a claim under the DBA except to the extent the DBA specifically modifies a provision of the LHWCA). See Pearce v. Director, OWCP, 603 F.2d 763 (9th Cir. 1979). Thus, the DBA is a general reference statute that incorporates not only the version of the LHWCA in force at the time the DBA was enacted, but all subsequent LHWCA amendments as well. AFIA/CIGNA Worldwide, at 155(CRT) n. 3. See OWCP v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977)(“When a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption.”).
The DBA itself contains no substantive provisions; the entirety of the Act contains some procedural and definitional provisions specifically tailored to injured defense contractors and DBA claimants, but contains no provisions dealing with the substance of a claim under the DBA. All of the DBA’s “substantive” provisions are found in the LHWCA. AFIA/CIGNA Worldwideat 156(CRT) n. 3.
One significant difference between the filing procedure of the DBA and that of the LHWCA concerns where to file the DBA claim. The DBA specifically modifies Section 19(a) of the LHWCA by providing different compensation district for filing claims arising under the DBA. See 42 U.S.C. § 1653(a). Basically, a claim must be reported to one of five district offices of OWCP. Which office to report to is determined by where the injury happened. For the geographic breakdown, see 20 C.F.R. § 704.101. These district offices administer the claim while the worker is still overseas. Once he/she returns stateside the claim can be transferred to the district office for the geographic area in which the claimant resides.
Tracking the LHWCA
As with LHWCA claims, a injured defense contractor is entitled to a de novo hearing before an ALJ if the matter can not be resolved below at the district director level. Additionally, OALJ’s alternative dispute resolution procedures can be utilized by the parties to settle a DBA case.
An injured defense contractor, under the DBA must satisfy the same requirements as to proof of causation as any other claimant under the LHWCA. For example, in Piceynski v. Dyncorp, 31 BRBS 559 (ALJ) (1997), remanded at Piceynski v. Dyncorp, (Unpublished) (BRB No. 97-1451)(July 17, 1998), and reconsidered at 36 BRBS 134 (ALJ) (1999), the claimant was originally found to be unable to carry his burden of proof that his medical complications were the result of Gulf War Syndrome. In Wendler v. American Red Cross, (BRB No. 93-0423)(May 29, 1996)(unpublished), the claimant was unable to prove that she was exposed to agent orange during the period of time that she was stationed in Korea while working for the Red Cross as a “donut server.”
In Lee v. The Boeing Co., Inc., 123 F.3d 801 (4th Cir. 1997) transferred to U.S. District Court of Maryland, 7 F.Supp.2d 617 (D.Md. 1998), the issue arose as to whether the Defense Base Act incorporated Section 3(e) of the LHWCA. The defense contractor had suffered major injuries in a car crash while working for Boeing in Saudi Arabia. Boeing wanted a credit for payments that the claimant was receiving from the occupational Hazards Branch of the Social Insurance Laws of Saudi Arabia. The ALJ, had found that such a credit was appropriate.Lee v. The Boeing Co., 27 BRBS 597 (ALJ) (1994). The Board “affirmed by default (Public Law 104-314 Omnibus Appropriations for Fiscal Year 1996). The claimant then appealed the holding to the Fourth Circuit which found that it did not have jurisdiction to hear the case and transferred it to the District Court for the District of Maryland. [For more of the unique appeals process for DBA claims, see infra.] In upholding the ALJ, the district court specifically found that Saudi Social Insurance Law qualifies as a “workers compensation law” to which Section 3(e) of the LHWCA applies. While noting that after examining the “scant legislative history” indicating that, although Congress was specifically concerned with the interrelationship of state and federal compensation laws, and not with the interplay between federal law and that of foreign lands, the plain language of Section 3(e) stating that it applies to “any other workers’ compensation law,” would include the Saudi law.
In Smith v. Director, OWCP, 17 BRBS 89 (1985), the Board determined that the substantive provisions of the LHWCA were controlling in reference to a lump sum commutation. Here the claimant was awarded benefits under the DBA. The employer was reimbursed for these benefits, however, from the Federal Employees’ Compensation Act (FECA) Fund pursuant to the War Hazards Compensation Act (WHCA) because the injury resulted from a war risk hazard. The claimant later filed a claim for a lump sum payment of his future benefits. The judge awarded a lump sum commutation of the benefits under the WHCA and FECA. The Board determined that the substantive provisions of the LHWCA, not FECA, were controlling and that entitlement to commutation should have been considered under pre-1984 amended Section 14(j) of the LHWCA. The WHCA provided only the source of benefits. [For more of the WHCA, see infra.]
Carrying the rationale of the LHWCA concept of “wages” one step further, the Board has held that in a DBA claim, overseas allowances and wage additives are properly included in the determination of an employee’s wages because these amounts were (1) easily ascertainable, similar to board, rent or lodging, and (2) were included for purposes of tax withholding and could not be considered fringe benefits. Denton v. Northrop Corp., 21 BRBS 37, 46-47 (1988). See generally Cretan v. Bethlehem Steel Corp., 24 BRBS 35, 43-44 (1990): Lopez v. Southern Stevedores, 23 BRBS 295, 301 (1990); Thompson v. McDonnell Douglas Corp., 17 BRBS 6, 8 (1985).
Similar to the LHWCA, but spelled out in the Defense Base Act itself, the act does not apply to a “master or member of a crew of any vessel.” 42 U.S.C. § 1654(3); Sosenik v. Lockheed California Co., 14 BRBS 191 (1981) (claimant, employer’s filed service representative aboard a U.S. Navy ship, was a crew member and was not entitled to benefits under the DBA). Presumably, in close cases LHWCA caselaw would provide the substantive analysis for determining seaman status. Also excluded from coverage under the DBA are employees subject to the Federal Employees’ Compensation Act (FECA) and employees engaged in agriculture, domestic service, or any employment that is casual and not in the usual course of the trade, business, or profession of the employer. See Section 4.
A Defense Base Act claim must stem from a “contract” for “public work” overseas. The DBA defines several pertinent terms, such as “public works,” “allies,” “war activities,” and “contractor.” As normally in the case of legislation, while these terms are “defined,” the researcher would do well to ascertain their judicial interpretations.
The Defense Base Act defines “public work” to mean any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project. Common work for current Defense Contractors.
In analyzing a claim it may be necessary to examine both the funding source as well as the working agreement. In University of Rochester v. Hartman, supra, the Second Circuit held that a university professor who was killed while doing research in Antarctica under grants from NASA and the National Science Foundation was not covered under the Defense Base Act. The claimant was not engaged in “public work” and his research grant did not constitute a “contract” within the meaning of the DBA. “To be compensable under the DBA, a benefit claim must stem from a contract with the United States to perform public work overseas, public work constituting government-related construction projects, work connected with the national defense, or employment under a service contract supporting either activity.” 618 F.2d at 176. Similarly, in Airey v. Birdair, Division of Bird & Sons, Inc., 12 BRBS 405 (1980), the Board found that a defense contractor had not established that any of his work for the employer was related to a service contract with the government.
However, “public work” is at times construed liberally. In Alan-Howard v. Todd Logistics, Inc., 21 BRBS 70 (1988), the defense contractor was working in Saudi Arabia as an administrative assistant for a corporation which had contracted to provide logistical support to the U.S. Army Corps of Engineers. The Corps was involved in managing military construction for the Saudi government. The Board held that the administrative assistant’s claim for injury was cognizable under the Defense Base Act since the undertaking to aid in the construction of a military facility for Saudi Arabia, an “ally” of the United States, constituted a “common defensive military alliance” and therefore qualified as the “public work” required for coverage under Section 1651(a)(4) of the DBA.
Furthermore, the Defense Base Act exclusion from coverage of “any employee of…(a) contractor…who is engaged exclusively in furnishing materials or supplies under his contract” was held not to apply since the claimant’s work as a facilitator under his employer’s contract to provide “logistics management and support services” constituted a “service.” Specifically, the Board viewed the pertinent exclusionary language as excluding manufacturers of goods used overseas from DBA coverage, rather than individuals who work on-site to facilitate the utilization of such goods.
In Casey v. Chapman College, PACE Program, 23 BRBS 7 (1989), the Board held that a professor of Asian Studies who was injured on a U.S. Naval Base in Japan was covered under the DBA. The Board found that his employment teaching Asian Studies in the Pacific to Navy personnel was related to national defense and therefore constituted the “public work” required for coverage.
Sometimes the issue isn’t how the contract read, but rather, where the claimant was. For example, in Rosenthal v. Statistica, 31 BRBS 215 (1998), the Board held that a program manager injured while returning to the United States was not covered by the DBA. The employee was not performing activities related to the employer’s contract with the State Department at the time of the injury and the employee’s travel was not directly from Brussels (his duty station) back to the United States. Direct travel between home and job locations is covered. Employers’ Mutual Liability Ins. Of Wisconsin v. McLellan, 304 F. Supp. 321 (S.D.N.Y. 1969)(Pilot killed in crash covered since he was in route between Air Force base in California and Air Force base in Okinawa where he was to perform government contract); Pillsbury v. Liberty Mutual Ins. Co., 143 F.2d 807 (9th Cir. 1944)(Claimant who had signed up in Denver to work overseas was covered when he was injured during a layover in California). The employee had taken a non-DBA contract related trip through Spain for which he and/or his company was covering his expenses when he was injured. Thus, one must ask more than whether the claimant was “in transit” between home and his job location; one must also ask the reason for the trip. Had the employee taken a short weekend holiday while solely working on DBA contract work, an argument could have been made that he was still within coverage.