If you or a loved one has suffered injuries while working in a foreign country supporting the military, you may be entitled to compensation under the Defense Base Act (DBA).
The law is an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA) and is designed to compensate any injured civilian deployed overseas under a US government contract.
This article takes an in-depth look into the Defense Base Act law to help you understand your rights and whether you qualify for compensation.
What Is the Defense Base Act
The Defense Base Act is a type of workers’ compensation that allows injured civilians working with the American defense forces to file claims for medical benefits and weekly compensation.
During World War II, Congress used the Longshore Act law as the framework for enacting the DBA. The LHWCA always applies to injury cases unless the DBA states otherwise.
The Zone of Special Danger
Before going any further, you need to be aware of a unique doctrine known as the Zone of Special Danger that applies to all DBA claims. The LHWCA and DBA are pretty similar to conventional workers’ compensation laws. They compensate workers for the costs associated with medical treatment and lost earning capacity for injuries they suffer in their line of work.
In all cases, the Acts typically address whether the victims were injured while working under an active contract. That’s where the doctrine comes into play.
Regular workers’ compensation laws don’t apply to employees who sustain injuries outside the scope of their employment. Those laws usually have a caveat that requires workers to have been engaged in employment-related activities at the time of the injury.
If they were injured while engaging in a recreational activity, they would not be entitled to any compensation. The same applies if they were involved in an activity that goes against company policy or horseplay. Workers’ compensation laws would not cover them in such scenarios.
The Zone of Special Danger has no such requirement. Under the doctrine, if an individual is contracted to work in a Zone of Special Danger, all potential and actual injuries fall in the realm of “work-related.” Even recreational activities would be considered part of the job.
The provisions of the doctrine are designed to protect workers when the circumstances surrounding their line of work increase the likelihood of physical injury. The Zone of Special Danger in Defense Base Act cases is so broad (especially those in war zones) that it would be difficult to dispute an injury as not work-related.
NR v. Halliburton
An employee contracted to work at a military base in Afghanistan was injured while traveling to his departure point. His decision to do this was in direct contravention of the orders of on-base Military Police, whose safety procedures required him to travel by military convoy.
The worker believed that doing this would pose a more significant threat to his well-being and decided to use other travel means instead. The Military Police were deployed to arrest him, and a scuffle ensued. He was injured while resisting arrest and filed a DBA claim once he returned home.
An Administrative Law Judge dismissed the claim on the grounds that the worker’s refusal to adhere to the safety procedures in place meant that his injuries fell outside the scope of employment. In the ruling, the judge stated that the worker was ineligible for Defense Base Act compensation because his injury had nothing to do with the inherent risks associated with his day-to-day work. As a result, the Zone of Special Danger was no longer applicable.
The US Department of Labor’s Benefits Review Board later reversed this ruling, citing the language used in the Longshore Act law – compensation is payable regardless of fault.
O’Leary v. Brown-Pacific-Maxon
This is another example of an injury that falls within the Zone of Special Danger. A worker ended up drowning while trying to save two of his colleagues who were swimming in dangerous waters near their employer’s recreational facility. The beneficiaries of the deceased worker received Defense Base Act compensation under the Zone of Special Danger.
The spirit of the doctrine is simple: Any type of contractual work performed in hazardous conditions overseas means that workers cannot escape the inherent risks in their working environment. Because of this higher-than-usual threat of harm, all activities that don’t fall within the scope of state workers’ compensation laws are covered under the Zone of Special Danger doctrine embedded in the Defense Base Act.
War Hazards Compensation Act
The 1942 War Hazards Compensation Act was enacted to supplement the DBA. The law embodies the national policy that the general public bears the losses from war risk deaths and injuries.
The Defense Based Act covers employees who suffer injuries resulting from war risk hazards. These claims are administered under the Department of Labor’s DLHWC (Division of Longshore and Harbor Workers’ Compensation).
The War Hazards Act provides for three main types of claims:
1. Injuries That Don’t Fall Under the NAFIA or DBA
Employees who may be covered under the NAFIA (Nonappropriated Fund Instrumentalities Act) or DBA but whose injuries cannot be compensated under the two statutes would be able to file claims under the War Hazards Act.
WHCA also covers individuals whom the US government engages for non-official services in foreign territories. Nonetheless, given how broad the DBA’s Zone of Special Danger is, these types of injury claims are pretty rare.
2. Detention Claims
The WHCA covers compensable employees under the NAFIA and DBA laws who are taken hostage or imprisoned by hostile forces. These individuals would also be able to file a direct claim under the provisions of the War Hazards law.
3. Self-Insured Employers
A self-insured employer or an insurance carrier is entitled to file for compensation for expenses and losses they incur from war risk hazards. A special fund set up under the Federal Employees Compensation Act is responsible for these reimbursements.
An insurance carrier would be most interested in the provisions of Section 104(a). According to the Reimbursement Claims law:
- Any compensation fund, insurance carrier, or employer obligated to pay out benefits to any individual on account of their death or injury within the scope of the Federal Employees Compensation Act, or the DBA can apply for reimbursement.
- If the death or injury for which the benefits were paid resulted from a war risk hazard, the compensation fund, insurance carrier, or employer can apply for reimbursement.
- The compensation fund, insurance carrier, or employer can apply for reimbursement for medical expenses, funeral and burial expenses, death and disability payouts, and claims-processing expenses.
Defense Base Act Insurance
Any federal contractor that employs workers on a military base outside American borders or on foreign public work contracts is subject to the Defense Base Act. The provisions of this federal law require certain contractors to provide insurance coverage against job-related injuries that meet the requirements stipulated by the Act.
This type of workers’ compensation is known as Defense Base Act insurance. Contractors can purchase it through approved insurance carriers, although they have the option to self-insure if they get approval from the US Department of Labor.
The penalties for non-compliant contractors working with the US government abroad are severe. Not only would they be required to pay the benefits the injured worker is entitled to, but they would also be barred from using any of the following arguments in court if the victim sues them for failing to pay up:
- Assumption of risk: The contractor cannot argue that the worker was aware of the risks involved when they took the job.
- Contributory negligence: The contractor cannot argue that the worker’s negligence contributed to their injury.
- Fellow-servant rule: The law bars the contractor from arguing that a fellow employee’s negligence resulted in the injury.
If an employer fails to compensate the worker as provided for by the DBA insurance requirements, it constitutes a gross misdemeanor. If found guilty, they could be looking at imprisonment for a period not exceeding one year, a fine of up to $10,000, or both.
What Does DBA Insurance Cover
DBA insurance coverage offers the benefits generally provided by workers’ compensation insurance. It includes death benefits, disability benefits, and medical expenses. Insured workers are covered for the entire duration the contract is in force, whether or not the injury occurred during working hours.
If an injury results in permanent disability, a worker is entitled to a weekly payment amounting to two-thirds of the average weekly wages they received before the disability. The total amount payable is capped at a maximum of $1,030.78 per week. An injured employee is also entitled to compensation if they suffer a partial disability.
Additionally, if the injury results in the worker’s death, the surviving beneficiary will receive 50 percent of the deceased’s average weekly wages. If there are two or more beneficiaries, that number goes up to 66.7 percent. The law defines a “survivor” as a spouse and children.
DBA insurance also covers foreign employees, the only difference being that benefits are paid out in a single lump sum instead of weekly disbursements.
How to File a DBA Claim
The Defense Base Act covers several different types of injuries, such as those to the eyes, ears, feet, legs, toes, arms, hands, fingers, and any other kind of bodily harm. It also covers pulmonary injuries, PTSD, depression, anxiety, and other mental health injuries. Aggravation injuries and cancer are also compensable.
The DBA claims process requires an injured worker to fill an Employee’s Claim for Compensation form (LS-203) available on the Department of Labor’s website. They can do this themselves or through a Defense Base Act lawyer who can file it on their behalf. The same form can be used to file a claim under the LHWCA and NAFIA laws as well. Injured workers must see to it that they provide all the relevant documentation associated with their injury.
Keep in mind that all claims must be filed within a year from the date the injury or death occurred. Each claim is fax-filed with the DLHWC, which then assigns a case number to it before issuing a notice to the insurance carrier or employer, letting them know that a claim has been filed.
If the worker retains an attorney, their lawyer will need to file Form LS-203 along with a retainer notice to let the DLHWC know that they are authorized to litigate on their behalf.
Before the DLHWC can make a recommendation, it will want to hear from the employer. All parties will need to take part in an informal conference before the DLHWC can issue a memorandum. If any of the parties disagrees with the memo, they’re required to file a Form LS-207 citing their reason for objection.
From that point on, either party may choose to go the traditional adjudication route by referring their case to the Office of Administrative Law Judges.
Defense Base Act Settlements
Formal adjudication does not offer any alternatives. Nonetheless, both parties may discuss settlement in the course of the proceedings. An Administrative Law Judge or the DLHWC can only approve a settlement if it is considered “reasonable.”
To determine whether or not this is the case, they typically consider three critical factors:
- Medical files: Has the worker achieved the maximum possible medical improvement?
- Loss of earning potential: Has the worker returned to work, or can they find another form of employment?
- Disputed issues: What are the factual or legal issues being disputed, and what bearing do they have on the claim?
The DLHWC has 30 days to review a settlement. If it deems it reasonable, it will go ahead and issue a Compensation Order to the employer, who then has 10 days to wire the settlement money.
Given the complexity of such claims, it’s always advisable to retain the best Defense Base Act attorney to represent your interests in such matters. That way, you know your rights are protected every step of the way.
Do you have any legal questions for us? Chat online with a Laws101 attorney who can answer your questions regarding DBA claims.