Since the tragedy of 9/11 and the subsequent U.S. military action in Afghanistan and Iraq, the government has increasingly relied on U.S. based military contractors to perform many of the necessary support jobs. At this time the number of U.S. contractors working overseas is not known, but at one time contractors outnumbered military personnel. Of course, by the very nature of the business, any numbers would be “fluid” at best.
Some of the contractors working overseas are truly just in support roles. There have been contracts awarded to such companies as Lockheed, Dyncorp, ITT, Northrup Grumman and the successor to the infamous Blackwater Security, now known as Academi. Many of these jobs are training functions, teaching people how to maintain and operate aircraft or computer systems or business practices.
Other jobs, however, are more military in nature. While contractors are not supposed to be engaged in military action, many times if they are drivers of convoys , or security personnel assigned to protect embassies they are in the same danger as military personnel.
Same Injuries, Different Results
For those contractors working in more dangerous jobs, they run the risk of not being compensated fairly if they are hurt on the job. The Defense Base Act, an extension of the Longshore & Harbor Workers Compensation Act is supposed to protect them. The act states that if one is injured while working overseas for a U.S. military contractor they are entitled to medical care and lost wage compensation paid for by their employer’s insurance company. This should be fairly straightforward, but this is not always the case.
Private security forces face the same types of potential injuries as do regular troops. Injuries from insurgent activity, roadside bombs, attacks by suicide bombers and firefights are common. Many military members and private contractors are experiencing lung issues from Iraqi dust or burn pits. Additionally, many contractors suffer from PTSD, brought on by being in the same circumstances as the troops stationed in these dangerous zones.
The military has a health care system in place to treat and rehabilitate injured soldiers. For those no longer in the military, there is the VA health system. Although recent news has pointed out the VA’s many flaws, there is at least some support in place to which the veteran can turn. Many contractors who have similar injuries must fight tooth and nail to get basic medical care for their injuries and compensation for their lost wages. The insurance companies who have written these very lucrative (for them) policies seem to deny coverage, balk at paying and delay as long as possible. In some cases it seems they “wait out” the claimant until it is too late to treat.
Private contractors have to rely on the kindness of the insurance company that wrote their employer’s Defense Base Act policy. We probably don’t have to mention that insurance companies are not in business to distribute kindness. What was designed to ensure that medical treatment and compensation for lost wages would be paid for has evolved into a fight for coverage.
Horror Stories Abound
Here is an example of one horror story. In 2011 a former Navy Seal and CIA paramilitary contractor experienced excruciating chest pains while conducting operations. After completing the mission, he went to a local hospital because the medical personnel at the US Embassy refused to treat him because of his contractor status. At the local hospital, where the doctor could not speak English, he was misdiagnosed with heartburn and sent back to his station. After the terrible chest pains continued more than a week later, he was taken off duty and flew back to the U.S. to get medical treatment.
He was rushed to emergency surgery after a cardiologist diagnosed him with pericarditis. They removed over a liter and a half of fluid from around his heart and he was in the hospital over a week. This situation could have had disastrous results. Today he is 100% disabled and the insurance company (who shall remain nameless) has refused to provide him a copy of the insurance policy under which he should have been covered. In fact, after he was admitted to the hospital a second time for the same issue, he notified the claims adjustor who replied that they still had determined whether he was going to be covered under the policy or not.
So, he was denied treatment from the U.S. Embassy personnel. He is still fighting for coverage from the insurance company that is supposed to be protecting him under the “Zone of Special Danger” rules imposed on insurance companies that write these policies. This “Zone of Special Danger” rule states that if you are working in one of these areas, you are covered for injuries or conditions that arise as a result of being in that location. It would seem to be clear cut, but it is not.
“Not fair!” you are saying – and you would be correct. It is also not fair that the family of one of the CIA contractors who died protecting CIA personnel and State Department diplomats in Benghazi in 2012 has not seen any reimbursement for burial expenses.
Winds of Change
Since 2009 there has been discussion about replacing the Defense Base Act with something called the OCCA or Overseas Contractor Compensation Act. In the fiscal 2014 budget for the Office of Workers Compensation Programs there is a request for funding this act, but it has not been passed just yet. It is a program that would be administered by the Department of Labor, and claims would be paid out of a collective fund. This would take these claims out of the purview of the Longshore & Harbor Workers Compensation Act. The purpose is to take the process out of the hands of the insurance companies and expedite the payment of claims.
These changes could benefit claimants, streamlining the process and ensuring the proper payment of claims. Some analysts are apprehensive about changes that might eliminate the claimant-friendly aspects of the Longshore & Harbor Workers Compensation Act. Under the LHWCA there is a legal presumption that injury on the job entitles one to medical treatment and wage loss compensation. This presumption has to be rebutted by the insurance company or employer. If this presumption is removed, it will make claims much more difficult to win.
The other advantage that the LHWCA provides is the “Zone of Special Danger” concept, which helps those injured or who become ill in dangerous or remote locations make a claim. If this is eliminated, it will certainly be a disservice to those who work around the world in very dangerous areas.
If you have been injured or a loved one killed while working overseas for a U.S. contractor, you should contact an attorney experienced in Defense Base claims. There are many technical aspects to making these claims, and you should obtain professional help to ensure you get everything to which you are entitled.