In cooperation with the Department of Labor, Office of Workers' Compensation, the Loyola Law School of New Orleans held a two-day conference in Washington D.C. on October 23 and 24, 2008. The conference coincided with the publication of a unique guide, Defense Base Act and War Hazards Compensation Act Handbook from Lexis Nexis. Susie Dow reports from the conference for ePluribus Media.

Defense Base Act Conference
Washington DC
October 23 – 24, 2008

Today, most citizens are aware of the large number of Americans working as contractors in Iraq. Company names for private military contractors such as KBR, Bechtel, and Blackwater have entered the American lexicon. Much less known though is the Defense Base Act - a series of laws which provide benefits for their employees should they become injured, killed, or kidnapped.

In the first of seven presentations, Mark Reinhalter of the Department of Labor sketched out a brief history and scope of the Defense Base Act.

The Defense Base Act (DBA) provides the equivalent of worker's compensation coverage for Americans working overseas for U.S. agencies such as the Department of Defense, United States Agency for International Development (USAID) and the Department of State. Underlying the DBA is the Longshore and Harbor Workers Compensation Act (LHWCA) first approved in 1927 and since amended. Any amendment to the LHWCA impacts the DBA.

As the number of contractors working overseas has grown exponentially over the last decade - jumping in ten years from 10,000 in the Balkans to over 100,000 in Iraq - the numbers of claims for injuries and deaths have also soared. The Department of Labor (DOL) who administers the DBA is trying to keep pace. Until recently, the New York district office had sole jurisdiction over Iraq and Afghanistan. Due to the growing caseload, in 2007, DBA cases began to be transfered from New York to other district offices to be in closer proximity to claimants. Eventually, New York will be the center for all foreign DBA claims.

More than Just Numbers

According to Miranda Chiu of the U.S. Department of Labor, in 2004, the Department revised how it reported DBA cases and began including new data fields for country of origin. Prior to 2004, they were unable to process casualty statistics from the electronic database then in use which was set up strictly for claim management. By 2005, the DOL could for the first time more accurately respond to public interest and attempt to fulfill requests for statistics on injuries and deaths stemming from the conflicts in Iraq and Afghanistan.

Outreach to employers vastly improved reporting so that more incidents were provided with increased accuracy. Employers responded to outreach, reporting minor injuries (known as No Time Loss or NTL) even if the injury was unlikely to generate benefits. Over the next three years, numbers of reports of injuries and deaths statistically jumped, peaking in 2007. Also rising was the total monetary cost of combined claims. In 1997, total combined claims were approximately $6 million. By 2007, combined claims approached $170 million.

One weakness still remains: it is up to employers to report incidents to the DOL specifically by filing the standard form LS-202, Employer's First Report of Injury or Occupational Illness. Even though reporting is a legal requirement not all employers willingly comply. Failing to file LS-202 may result in an $11,000 fine. A fine that Richard Robilotti, the District Director in New York, gives fair warning to employers that he relishes collecting - an attempt to inspire employers just to file in a timely manner as the statute requires.

In 70% of overseas cases, an insurance carrier or self-insured employer often file an FS-207, Notice of Controversion of Right to Compensation delaying compensation. FS-207 lets both the DOL and employee know no benefits will be paid until an investigation into the reported incident is completed and any unknown factors resolved. An overseas employee should subsequently expect the delay as a matter of routine.

In addressing death benefits, Richard Robilotti revealed one of the harsher realities behind numbers. Just under 240 of reported deaths to date had no statutory dependent - in other words, no beneficiary. That is: no husband, no wife, no siblings, no children, no parents. No one for an insurance carrier to pay a death benefit to. When no beneficiary can be found, the law requires that the insurance carrier pay $5,000 to the Department of Labor after one year. Robbliotti revealed that just under $1.2 million has been paid to the Department of Labor to date.

Department of Labor - standard forms can be found at their website.

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Photo credits: TH

Contributors: Susie Dow, Cho, TH

About the author

Susie Dow is the author of several articles at ePluribus Media, Missing Contractor: US Military Mechanics may Hold the Keys in addition to One Missing, One Dead: An Iraq Contractor in the Fog of War, and Iraq, Contingency Contracting & the Defense Base Act: I-III. Dow is the Editor of the weblog, The Missing Man, which follows articles on Kirk von Ackermann and his colleague Ryan Manelick. She is a volunteer researcher and editor at ePluribus Media.