Injured in Iraq or Afghanistan? Welcome to Defense Base Act claims.

Many civilian workers injured while working in Iraq and Afghanistan are returning home with uncertainty as how to pursue their claims for workers’ compensation benefits.  While not including all civilian, non government, workers in those geographic regions, the bulk of injured workers returning from Iraq or Afghanistan will have claims under the federal Defense Base Act (“DBA”).  While a separate federal law, the DBA incorporates the procedures applicable to Longshore and Harbor Workers’ Compensation Act for processing and resolution of claims. 

 

The DBA provides coverage for those injured while working for a contractor engaged in “public work” overseas which generally includes fixed improvements in conjunction with the national defense or operations under service contracts in connection with national defense, war activities, harbor improvements, dams, roadways, housing and ancillary work in connection therewith.  To be “public work” covered under the DBA the claim must arise from a contract with the United States to perform public work overseas.  Also included are service contracts in conjunction with the performance of such overseas public work.    

 

Accordingly many of the civilian workers employed in Iraq and Afghanistan under contracts to aid the war effort or contracts for “public work” involving construction, alteration, removal or repair of the United States or its allies are covered by the DBA.  There is coverage in conjunction with activities arising out of the scope and course of the performance of the work (e.g. a truck driver carrying war supplies is injured in a collision with another truck) as well as the extended coverage available in the “zone of special danger” for injuries/deaths not necessarily arising out the scope and course of the work.    

 

Under the “zone of special danger” doctrine, coverage is extended to those whose injury did not occur in the normal space and time boundaries of work, but to those who are injured or killed while within an area where the obligations of the employment create a zone of special danger out of which the injury arose.  Included in the “zone of special danger” cases are injuries/deaths in employer sponsored recreational areas, or even further removed injuries/deaths such as an employee injured or killed while on a weekend outing (the employee had to work “under the exacting and dangerous conditions” of the area and thus was covered).  Also covered in the “zone of special danger” was a worker who suffered a heart attack while off duty in his barracks in Greenland. 

 

While handled similar to Longshore and Harbor Workers’ Compensation Act cases, there are differences in some details that make finding an experienced attorney important.  There can be slight differences in the calculation of the Average Weekly Wage, there are procedural differences (while the claims must occur outside the continental U.S. they must be initiated in very specific district offices of the Office of Workers Compensation Programs; they are adjudicated in that District office until the employee returns home in which case the case can be transferred to the District appropriate to the worker’s residence) and under certain circumstances the appeal procedures differ from Longshore and Harbor Workers Compensation Act cases. 

 

In my own practice, I have handled cases under the DBA to include, for example, a truck driver who suffered a herniated disc in his back when his tanker truck slipped into a two foot deep “rut” while delivering jet fuel to support the war effort in Iraq (a case where the injury occurred in the “scope and course of employment” much like any workers’ compensation claim) and a physician’s assistant employed to provide medical support to the activities of rebuilding the science research station at the South Pole who slipped on ice and fractured his leg on the way to the bathroom (“injured in the zone of special danger”). 

 

As such, whether injured in Iraq, Afghanistan, the South Pole, Saudi Arabia, Greenland, South Sea islands, or anywhere else work is being performed under a contract of the United States to complete public work for the U.S. or its allies and/or under a service contract for such operations, the Defense Base Act is likely the applicable Act to provide workers’ compensation coverage.  Care must be taken to assure your rights are protected as many employers will attempt to cover these types of claims under state workers’ compensation acts (where benefits are reduced) or otherwise to avoid financial responsibility.  Even if one is receiving benefits under a state workers’ compensation benefits for such an injury which occurred outside the continental U.S., consultation with an attorney experienced in the Defense Base Act is advisable to assure that one’s claim is being processed under the correct workers’ compensation act to maximize benefits received. 

 

War Hazards Compensation Act:  For those who are injured or killed by hostile actions under a declared war or “hostile action” there is coverage under the War Hazards Compensation Act (“WHCA”).  This covers all civilian workers injured or killed due to “hostile actions” even if they would have otherwise been covered by the DBA or other workers’ compensation acts if injured or killed due to injuries which occur in the scope or course of their employment (not arising out of hostile actions or which occur in the “special zone of danger” not arising out of hostile actions).  All WHCA claims are handled through the Washington, D.C. district of the OWCP, under the procedures applicable to the Longshore and Harbor Workers’ Compensation Act.  

2 thoughts on “Injured in Iraq or Afghanistan? Welcome to Defense Base Act claims.

  1. I am already receiving my benifits, last year I asked about a cost of living increase, they gave it to me ,but only one year back. How do I get them to give me all the money I should have been getting since 2001? I did the math and my checks should be double what they are, if you can help or point me in the right direction. Thank You for your time.

    • You are entitled to COLA once you have been determined to be at maximum medical improvement and are permanently and totally disabled. The rates are set each Fall and are effective in October each year. You are not entitled to adjustments while receiving temporary total or permanent partial benefits. There may be difference of opinion between the parties as to whether a claimant is PTD and if so, when. However, if your employer/carrier refuses to provide the COLA back to the date you believe you were found PTD I would suggest contacting an attorney.

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