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Valreta Whitsett has been a Barnett & Lerner client for over 7 years. She was injured working on shipping docks in Florida. Fortunately, she was covered under the Longshore and Harbor Workers' Compensation Act (LHWCA). It has been a long road for Valreta in her recovery.. this is what she has to say about here experience and how she has been able to work through to closure with Barnett & Lerner.

For many years, civilian workers, regardless of their citizenship/nationality, have assisted the United States military and the United States government on many overseas construction projects.  Civilian participation in these overseas projects has skyrocketed with the invasions of Afghanistan and Iraq.  Also, the U.S. government has looked to private security contractors to supplement and assist the military.  Unfortunately, as more civilian workers live and work in war zones, many of them have been injured either physically or psychologically.  Regrettably, these injured civilian workers are all too often unaware of their rights and entitlements under U.S. law.  This discussion is intended to help civilian workers injured overseas understand their rights to medical and wage benefits, and to further prepare civilian workers getting ready to deploy overseas in support of the Global War on Terrorism.  In this first article, we will examine the development of the law protecting civilian contract workers overseas and its history.  In future articles we will address the specifics of the benefits and methods of obtaining them.

The Law Protecting Civilian Workers Overseas

During World War I, a longshoreman in New York City fell off a gangplank ten feet from the dock and into New York Harbor, injuring himself.  This dock worker attempted to get workers’ compensation benefits through New York’s laws, but was denied because he was not hurt on land.  In 1917, the Supreme Court of the United States ruled that, because the waters of the harbor were within the federal maritime jurisdiction established by the U.S. Constitution, the New York state workers’ compensation law in effect at the time could not be applied to this worker.  Not only could the dock worker not receive New York workers’ compensation benefits, because he was a longshoreman, he was not eligible for benefits normally available to seaman injured on the water.  This case exposed the failure of both the state and federal laws to protect workers injured in the murky waters where state law ended and federal law began.

In 1927, Congress enacted the Longshore and Harbor Workers’ Compensation Act in order to afford injured maritime workers, such as the injured longshoreman from 1917, benefits consistent with workers’ compensation laws in other states.  The Longshore and Harbor Workers’ Compensation Act was the U.S. government’s first comprehensive workers’ compensation system. This Act, modeled on New York’s workers’ compensation law, covered longshoremen and stevedores involved in maritime employment, such as the loading, unloading, building, repairing, and dismantling of ships.  As a workers’ compensation law, the Act provided a detailed list of benefits, including medical care, payment of lost wages, and survivor’s benefits.  Employers hiring longshoremen and stevedores had to have an insurance policy that would pay the benefits outlined in the law, or else the employers would be responsible for paying the benefits themselves.

Since the Longshore and Harbor Workers’ Compensation Act was the first law adopted by the U.S. government to protect an entire class of workers, it served as the back bone of other laws designed to extend workers’ compensation benefits to other classes of workers.  One of the extensions of the Longshore and Harbor Workers’ Compensation Act was the Defense Base Act.  As an extension of the Longshore and Harbor Workers’ Compensation Act, the Defense Base Act itself did not have any substantive benefits; rather it was a definitional statute defining what types of workers would be entitled to Longshore benefits.
During the years leading up to World War II, the United States acquired the rights to build military bases from foreign governments.  Much of the construction was done by American civilian contractors working for private construction companies.  Since these construction workers were neither seamen protected under the Jones Act or other such laws, nor were they longshoremen engaged in a maritime occupation, they formed a special class requiring their own protection in the event they were injured.

On August 16, 1941, just four months before America’s involvement in World War II, Congress passed the Defense Base Act.  Initially, the Defense Base Act provided benefits to civilian employees injured or killed while engaged in any employment on a military base acquired from a foreign country after January 1, 1940, or at American military bases outside of the continental United States.  As World War II engulfed the globe, many foreign governments contracted with the U.S. to build military bases in their territories.  Coverage under the Defense Base Act was extended to include the civilian workers at those foreign bases as well.  Again, to ensure their workers were protected, the private companies purchased insurance policies providing “DBA benefits”, which were simply Longshore benefits extended to these construction workers.

On December 7, 1941 the United States was attacked by Japan, and dragged into the World War.  One of the results was an exponential increase in overseas construction projects related to national defense, but not necessarily on military bases.  This created a gap in coverage for civilian workers who were injured or killed while involved in these off-base construction projects.
Recognizing this gap in protection, in December 1942 the U.S. Congress amended the Defense Base Act to include all employees engaged in public works outside the continental United States in order to encourage private companies and qualified civilian workers to assist the U.S. government with its construction projects overseas.  After World War II, and just as the Cold War was beginning, Congress again amended the Defense Base Act in 1953 to change the frame of reference from World War II to one of “national defense”.  This extended coverage to overseas government construction projects conducted during periods when there was no formally declared war.

Finally, in 1958 Congress converted the Defense Base Act from a temporary law, enacted during the national emergency of World War II, to permanent legislation after determining that America’s overseas commitments would not diminish substantially in the future.  In summary, the Defense Base Act was designed to extend the protection of the Longshore and Harbor Workers’ Compensation Act to civilian workers engaged in defense-related employment outside the continental United States, and was ultimately expanded to protect employees working under service contracts tied to any such construction projects or a national defense activity.  The result is that today’s civilian employees working in Afghanistan or Iraq are afforded the workers’ compensation benefits set out under the Longshore and Harbor Workers’ Compensation Act, due to the Defense Base Act’s extension of these benefits to them.

Summary of Benefits Available to Injured Civilian Workers
 
Since the Longshore and Harbor Workers’ Compensation Act is the federal government’s version of a state workers’ compensation program, the benefits available mirror those available under most states’ programs.  Employers performing services overseas for the U.S. government have to purchase an insurance policy providing these benefits for their workers, and these insurance policies are usually called “DBA policies” which provide “DBA benefits.”

The two primary classifications of benefits are medical benefits and wage loss benefits.  Briefly, a civilian employee is entitled to medical treatment for physical or psychological injuries sustained while working overseas.  This medical treatment is provided at no cost to the injured worker, and covers everything related to the injury: office visits, tests, x-rays, surgeries, prescriptions, and mileage reimbursement to and from the doctor’s office.  The injured worker even has the right to pick the treating doctor!  Medical care also includes treatment for any psychological injuries, which have become all too common in Iraq and Afghanistan.  Many civilian workers, regardless of their past military training or exposure, are returning home with sleep disorders, anxiety, depression, adjustment disorders, and other psychological symptoms not necessarily connected to a physical injury.  These conditions are also covered under the Defense Base Act, and workers suffering these symptoms are entitled to medical care for them, including treatment with a psychiatrist, psychologist, or other mental health counselor.

One interesting aspect of the Defense Base Act is that the work overseas does not have to cause a new injury in order for the civilian employee to be entitled to benefits.  If the injury was caused by the employment, or if working conditions existed which could have aggravated a pre-existing condition, then the entire injury is covered – even the pre-existing portion!  Further, if the working conditions existed which could have accelerated the need for medical care of a pre-existing condition, the entire pre-existing condition is covered, too!  

The phrase “working conditions” does not mean the 12 hours a day an employee is on the job.  Working conditions encompass the entire deployment setting.  Due to the nature of overseas employment, working conditions include the time an employee is not working – recreation, eating, sleeping – and the actual conditions and requirements of the location itself – sandstorms, heat, wearing personal protective equipment, rough or uneven terrain, and insurgent attacks, to name a few.

If an injured worker’s salary is reduced or stopped because of an injury, the worker is entitled to wage loss benefits.  These wage loss benefits cover the time the injured worker is out of work receiving medical care, and can possibly continue for the remainder of the worker’s life whether he returns to work or not.  Of course, the amount and duration of wage loss benefits will depend on many factors, including the injury itself and any work restrictions given by a doctor.  The specific amount of the benefit is based upon a calculation set forth in the Longshore and Harbor Workers’ Compensation Act, and is subject to a maximum amount established yearly by the Department of Labor.

The Reality of the Situation

Overseas communication is always a problem, whether it is trying to establish and maintain local voice communication between combat units, or simply getting a letter from home.  Civilian employers have the same logistical and communication problems with their overseas work sites.  Most of these employers have many offices around the world, with human resources, payroll, and corporate offices in different locations, and almost never in the actual foreign country where the work is being performed.  To complicate matters, many employers are themselves subcontracting to other, larger general contractors, which have the actual contract with the U.S. government.

Good communication is particularly important when a worker is injured.  Unfortunately, all too often injured civilian workers return home expecting their employers to provide medical care and wages.  The reality is, the employer does not provide these benefits themselves, as these benefits are paid and administered by the employer’s insurance company.  Frequently, when an injured worker returns home and contacts the insurance company seeking benefits, the insurance company is not aware of the accident or injuries, and the case may be denied.

This can be very frustrating to injured civilian workers who believe they were helping the U.S. government.  This, in turn, leads to a feeling of abandonment and distrust of both the private employer and the insurance company.  Unfortunately, the only way to remedy the misplaced denial of case is to pursue legal action before the U.S. Department of Labor.
 
About the Authors

David C. Barnett, Esq. is the managing partner of Barnett & Lerner, P.A., and his practice centers on representing civilian contractors covered under the DBA. Mr. Barnett has been handling these claims for over 20 years and additional information about Mr. Barnett, his firm, and his credentials can be found at www.injuredoverseas.com.

Samuel S. Frankel, Esq., is a partner in Barnett & Lerner, P. A. He has been practicing law for the past 14 years and he focuses his practice on representing injured civilian contractors. More information on Mr. Frankel can be found at www.injuredoverseas.com.