During World War II and through much of the Cold War, uniformed members of the Armed Forces made up the vast majority of the U.S. force structure, with contractors playing a relatively minor role. Since the First Persian Gulf War, however, the U.S. has relied on private contractors to perform functions previously performed by uniformed personnel. In Iraq and Afghanistan, contractors provided more than 50% of the force structure. In fact, the number of contractors killed in Iraq and Afghanistan exceeds the number of U.S. military personnel killed in those countries.
Companies working for the Department of Defense (DOD) provide everything from construction of facilities and food service to training of foreign military forces and providing security to U.S. facilities. Sometimes, contractors find themselves in combat against an enemy force. On March 31, 2004, four contractors working for Blackwater USA, Jerry Zovko, Wesley Batalona, Michael Teague, and Scott Helvenston, were killed by insurgents in Fallujah, Iraq. The danger faced by these contractors cannot be overstated.
For every U.S. contractor killed in a far-off land, many more are injured, both physically and psychologically. Unlike military personnel, they are not entitled to pensions or death benefits from the U.S. government. Instead, the Defense Base Act (DBA), 42 U.S.C. 1651 et. seq., which makes the compensation scheme under the Longshore and Habor Workers’ Compensation Act, 33 U.S.C. 901 et. seq., applicable to employees of contractors working overseas for a DOD contractor. This Act is similar to a Worker’s Compensation Statute a civilian employee might file with a civilian employer in the U.S., but there are differences.
Who is Covered by the Defense Base Act?
In order for a DOD contractor employee to be covered by the DBA, there are a number of facts that must be present. These are:
- The claimant must be employed by a company that has a contract with the U.S. Department of Defense.
- The claimant must be working “overseas” at a military installation.
- The injury must be caused by the claimant’s employment at that overseas base.
- Medical evidence must show that the injury caused disability or death.
Benefits are not automatic, however. There are several pitfalls in the application process, and even when coverage would seem to be clear, insurance companies search for ways to deny coverage.
Nearly two-thirds of the employees of DOD contractors are not U.S. citizens. The DBA covers these employees just as it covers U.S. citizens and residents; however, DOD contractors do not always inform these employees of the DBA’s existence or what it covers. When these foreign employees are injured, they are often back to the country they came from, and it becomes even more difficult for them to learn about the benefits they are entitled to. The time limitations of the DBA still apply, and frequently, these employees will lose their rights before they even knew they had the right to compensation.
What is the Process for Obtaining Benefits?
Unfortunately, the process for obtaining benefits can be far from easy. Unlike uniformed service members who receive compensation for injuries or death from the U.S. Treasury, the DBA requires contractors to carry private DBA insurance companies (unless the company receives a waiver and is self-insured). Insurance companies make money by not approving claims. They therefore look for reasons not to pay what they owe. Although any individual can file a claim, in most cases, the insurance company will look for any colorable reason to deny the claim.
Prior to the claim’s filing, the DBA attorney must gather the information necessary to complete a successful claim. This includes work records, medical records, statements as to what happened, and any other reports that may be available to show that the injury is related to the claimant’s employment overseas. Incomplete or insufficient applications will be denied by the insurance company. In fact, many valid applications are denied by insurance companies in the first instance.
There are two timeframes to keep in mind when dealing with DBA claims. First, notice of the claim must be given to the employer within 30 days of the injury, although there are exceptions to this rule. Next, the claim must be filed within one year of the injury, although, again, there are exceptions to this rule as well. In a DBA case, time is of the essence.
For Post Traumatic Stress Disorder (PTSD) and other psychological injuries, the claimant will rarely know of the “injury” within 30 days of the traumatic event. It is not uncommon for psychological injuries to remain hidden for years. Insurance companies will often deny these claims for a variety of reasons, including lack of timely notification. This does not mean they are not real. It does not mean that the claimant is not entitled to compensation. It does mean, however, that once the injury and its connection to employment with a DOD contractor overseas has been identified, the claimant should act quickly to notify the employer and file a claim.
The claim should be filed at:
U.S. Department of Labor
Office of Workers’ Compensation Programs
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
The claim can also be filed electronically with the Department of Labor. It is better to file the claim electronically, if possible.
Can the claim be appealed if it is denied?
In the event a claim is denied, the claimant can appeal by filing a Notice of Appeal with the Office of Administrative Law Judges (OAL) at the Department of Labor (DOL). The appeal must be filed within 30 days of the denial. If the Administrative Law Judge denies that appeal, there is a further appeal to the Benefits Review Board (DRB). If the DRB denies the claim there is a further appeal in federal court.
Hearings before Administrative Law Judges are important and should not be attempted without an experienced DBA attorney. The insurance company will be represented by a team of attorneys and are likely to hire experts to undermine the claimant’s claim. The claimant should have his or her attorney as well. The claimant’s counsel will know how to conduct a hearing and present evidence. A claimant who tries to represent him or herself is unlikely to win.
What Benefits are authorized under the Defense Base Act?
The DBA provides financial compensation to DOD contractor employees who are partially or totally disabled from an injury related to their employment overseas. It also pays for all necessary and reasonable expenses related to the injury. The amount of compensation paid depends on several factors, including the employee’s age and the percentage of disability attributed to the injury. No matter how much a claimant receives, however, it will never compensate the employee for all of his or her economic loss. It also does not pay for pain and suffering or any other non-economic loss. It can be of great assistance to a family in need.
In the event of death, the DOD contractor employee’s beneficiary (spouse, children, parents) will receive a lump sum benefit based on the employee’s income at the time of the work related death overseas.
Are there Different Rules for Psychological Injury?
The short answer is “no”, but, as a practical matter, psychological injuries do seem to be treated differently by insurance companies. Work -related injuries—a crushed spine, a broken leg, asthma or other respiratory diseases from exposure to certain chemicals—all manifest physical signs that are easy to identify. Psychological conditions do not show up on x-rays or CAT Scans. Insurance companies are therefore more likely to deny claims of psychological impairment even though they can be, and frequently are, more severe than physical impairments.
However, psychological injuries are covered under the DBA. A psychological injury is defined as an emotional, cognitive, or psychological issue that affects a person’s thoughts, feelings, and behaviors. These injuries can lead to total disability or death, frequently death by suicide. There are a variety of psychological injuries covered by the DBA, including:
- Adjustment disorder
- Acute stress disorder
- Chronic fatigue syndrome
- Panic attacks
- Memory impairment
- Any other impairment caused by emotional trauma
DOD Contractor employees serve with U.S. military personnel (and frequently were military personnel), and they experience the same stress and emotional strain members of the military suffer. The Veterans Administration (VA) has found that suicide is a frequent result of psychological injuries caused by active-duty service overseas. The same is true for contactors serving in the same locations and under equally strenuous conditions.
Before filing a claim for psychological injury, it is best to talk to a DBA attorney. We offer a free consultation where we can discuss the specific details of each claim. It is important to understand that each and every case is different, and cookie-cutter approaches to filing claims are going to result in the denial of claims by the insurance companies. Understanding the facts and preparing ahead of time are the keys to obtaining the benefits the contractor deserves.
Here are some key things to consider:
- A licensed medical professional must diagnose a psychological condition and describe the disability and its impact on the claimant’s ability to work.
- The licensed medical professional must also link the condition to an incident or incidents that occurred while working for a DOD contractor overseas.
- The incident must be work-related.
- There must be evidence, including medical records, witness statements, and any other relevant documents.
- The claim must be filed within one year of the diagnosis with the U.S. Department of Labor.
Contact Us if you believe you may have a DBA Claim.
Employees of DOD contractors frequently work in conflict zones around the world supporting U.S. interests. They are often in the same locations as U.S. service members and face the same stresses and strains. When they suffer injuries—psychological as well as physical—they deserve to be compensated.
If you or a loved one has suffered an injury while working for a DOD contractor overseas, give us a call; we may be able to help. It can be difficult to talk about PTSD or other psychological disorders, but we understand. Psychological injuries can be, and frequently are, worse than physical injuries. Far too many people commit suicide because they can no longer handle the stress—if you or a loved one have contemplated suicide or are considering suicide now, seek help. Call the suicide Hotline at 988. Help is available.
We can help get treatment and compensation for these injuries. We do not charge for an initial consultation, and if we decide to take a case, there are no attorney’s fees unless we win.