Injuries to Civilian Contractors Working for the Military Overseas: The Defense Base Act

The Defense Base Act (DBA) provides workers' compensation benefits to civilian contractors performing work for the U.S. military outside the United States.

The DBA is an extension of the Longshore and Harbor Workers Compensation Act (LHWCA), which provides workers' compensation benefits to injured longshoremen and other maritime workers, as well as death benefits to their surviving family members.

History of the Defense Base Act

Civilian contractors perform many of the same military services as soldiers, and they are likely to be injured or killed due to working in the same dangerous conditions. In fact, more civilian military contractors than Armed Forces members were injured or killed overseas in recent years.

The U.S. government has long had programs that provide medical care and compensation to injured members of the Armed Forces. Prior to passage of the Defense Base Act, there was not a program in place to provide these benefits for civilian contractors who were injured or killed while performing work for the U.S. military.

In 1941, Congress passed the Defense Base Act to extend workers' compensation benefits to contractors in these situations. The Act also requires that employers obtain DBA insurance to provide coverage for their DBA-related workers' compensation claims.

Benefits available to DBA contractors

The benefits available to DBA contractors are largely the same as those available to LHWCA employees, including compensation for:

  • Medical treatment for the injury or illness, provided by a physician of the employee's choice.
  • Disability beefits, if a DBA contractor is unable to work due to illness or injury. The rate of compensation depends on the extent of the disability (partial or total) and the duration of the disability (whether the disability is temporary or permanent). The amount of disability compensation available to a DBA contractor is based on a national "average weekly wage" calculated by the Department of Labor.
  • Death benefits and funeral expenses, paid to a widow, widower or other eligible survivor.

These benefits are available regardless of whether the employer's negligence contributed to the injury, illness or death.

Who is eligible for benefits under the DBA?

According to the Department of Labor (which manages the Defense Base Act program), the DBA offers benefits to contractors who are:

  • Working for private employers on U.S. military bases or lands used by the U.S. for military purposes outside of the U.S.; or
  • Working on "public work" contracts with any U.S. government agency outside the U.S. "Public work" contracts include projects or operations related to national defense or war activities; or
  • Working on contracts approved and funded by the U.S. under the Foreign Assistance Act, including the sale of military equipment, materials and services to U.S. allies, if the work is performed outside the U.S.; or
  • Working for American employers providing "welfare or similar services" outside of the U.S. for the benefit of the military, such as the USO.

Injured employees that fit in one of the above categories are likely eligible for DBA benefits, regardless of their nationality or country of citizenship. U.S. citizens, U.S. residents, and citizens and residents of other countries are all eligible for DBA benefits.

DBA benefits are not available to:

Compensation for injuries that occur in a zone of special danger

The LHWCA provides benefits for injury, illness or death "arising out of and in the course of employment." Therefore, an LHWCA employee must be able to show that their injury was related to their employment in order to receive compensation through the LHWCA. For example, an LHWCA employee that was injured when he slipped and fell on a work site would likely be eligible for LHWCA benefits. If that same employee slipped and fell and was injured at a local bar after work, he likely wouldn't be eligible for LHWCA benefits.

For DBA claims, the relationship between injury and employment is more loosely defined. DBA contractors often work in isolated, dangerous locations. This is called a "zone of special danger," meaning that being employed in certain types of foreign locations exposes DBA contractors to greater danger than they would face in the U.S.

If a DBA contractor works in a "zone of special danger," there does not always need to be a direct relationship between their employment and the injury in order to receive DBA benefits. For example, DBA contractors working in a "zone of special danger" have been compensated for injuries or deaths that occurred:

  • On the way to a grocery store
  • At a bar or other recreational location
  • While off-duty and attempting to rescue a drowning swimmer
  • While fishing.

Because their work put them in an inherently more dangerous location, even injuries or death that occurred off-duty or during recreational activities were covered by the DBA.

Potential problems with receiving DBA benefits

The LHWCA and DBA are employees' "exclusive remedy" against their employers. This means that LHWCA and DBA employees cannot sue their employers for injuries that are covered by the LHWCA or DBA, even if the employer's negligence contributed to or caused the injury.

The idea is that employees working in dangerous situations receive prompt compensation for their injuries under the LHWCA and DBA. In return, employees give up the right to sue their employers for those injuries. This protects employers from expensive lawsuits.

In practice, this trade-off doesn't always work in the employees' favor. For example, even DBA contractors with straightforward injury claims may find it difficult to receive compensation from their employer's insurance company. Insurance companies frequently deny (or "controvert") claims under the DBA, particularly in more complex cases or cases involving post-traumatic stress disorder (PTSD) or other mental health issues.

If employers fail to meet their obligations under the DBA, they may be liable for penalties such as a $10,000 fine or attorney's fees. This doesn't necessarily stop many employers and insurers from making it very difficult to obtain compensation under the DBA.

Denying and delaying claims is so common that a group of DBA contractors filed a class action lawsuit on behalf of approximately 10,000 other DBA contractors in 2015. The suit alleged, among other things, that employers and insurance companies had not fulfilled their legal obligations under the DBA and had unlawfully cut off benefits, delayed benefits and failed to comply with orders to pay benefits. The lawsuit was ultimately dismissed because the DBA is an contractor's "exclusive remedy." However, it does highlight the fact that many DBA contractors struggle to get the compensation they are entitled to under the Act.

What to do if you are injured overseas while working as a contractor for the U.S. military

You should notify your employer of the injury as soon as possible. In most cases, you will need to provide written notice of injury to your employer and to the Office of Workers' Compensation Programs (OWCP) within 30 days of the injury.

Most claims for DBA benefits must be filed within one year, including claims for death benefits. There are specific forms that you and your employer must file at each stage in the process. Failure to follow the process can result in denial of DBA claims.

The process of applying for DBA benefits is complex. Even if you've followed every rule and met every deadline, an insurance companies could still deny or delay payment of your DBA claims. A knowledgeable Defense Base Act attorney can help insure you receive just and fair compensation.

Experienced Maritime Personal Injury Lawyers in Maryland

If you or a loved one have been injured overseas while working as a contractor for the U.S. military, contact Gilman & Bedigian to learn what your options are.

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If someone you are close to has been seriously injured or worse, you are naturally devastated not only by what has happened, but by the effect that the injury or loss has had on you and your family. At a time when you're vulnerable, traumatized and emotionally exhausted, you need a team that will support you through the often complex process that lies ahead.

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