Defense Base Act
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The Defense Base Act (DBA), , is an extension of the federal workers’ compensation program that covers longshoremen and harbor workers, the Longshore and Harbor Workers' Compensation Act . The DBA covers persons employed at United States defense bases overseas. The DBA is designed to provide medical treatment and compensation to employees of defense contractors injured in the scope and course of employment.
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[edit] Who is covered under the DBA
Generally, workers employed by American contractors performing public works for the U.S. government in U.S. territories, at U.S. military bases located outside the continental United States and in support of military aid programs within allied nations. [1] Also, persons who are employed overseas by welfare and morale projects such as the American Red Cross, the U.S.O. and The Salvation Army are generally covered. “Public Works” is defined in
[edit] Technical requirments and filings
The initial technical requirement of the Act is to report the injury immediately to one’s immediate supervisor. Notice of the injury should also be given in writing using form LS 201. Once that is done, medical treatment is generally offered. It is the employee’s responsibility to file a claim form LS 203 with the Office of Workers’ Compensation Programs (OWCP). This is required within one year of the date of injury or the last payment of compensation, whichever is later. Forms utilized in DBA claims may be accessed at at the Longshore and Harbor Workers' Compensation Forms Page.
[edit] Payment of compensation
There is a three day waiting period (the period of time one must wait before compensation is due) under the LHWCA. Thereafter, if an injury is serious enough to prevent the employee from returning to work, the employer (or its insurer) must pay compensation to the injured worker. The amount of compensation paid is generally calculated by taking an employee’s wages from the year prior to the injury and dividing by 52. This is known as the average weekly wage (AWW).
If the employee has worked in the same job for the entire period, the calculation is simple enough. If the employee has not worked “substantially the whole year” in the same type of employment, alternate methods may be used to determine AWW. A similar employee's wages can be used, or if Sections (a) or (b) cannot be fairly applied, there are several alternatives such as taking a daily wage and multiplying it by the number of days per week ordinarily worked. Courts are split on the issue of whether lower stateside earnings should be used to determine AWW and compensation rated.
Once the average weekly wage (AWW) is established, this is multiplied by two-thirds and this figure, the compensation rate (CR) is the amount of money the injured worker is to receive each week he or she is disabled. There is a maximum rate which changes periodically. [2] Generally, DBA insurers pay every two weeks. Once the compensation rate for “total disability” is established, it does not change and there are no increases for cost of living or inflation.
Benefits are generally paid until the injured worker returns to work or is capable of returning to work and suitable work is available. For example, if an injured worker fully recovers from his or her injury and can return to his or her regular job, total disability benefits end. Also, even if an injured worker cannot return to his regular job due to a physicians restrictions, compensation ends if the employer offers the employee suitable work. Short of offering a job, the employer/insurer may stop compensation for total disability if it can prove that there are suitable jobs which exist in the employees commuting area. If those jobs do not meet or exceed the injured worker’s previously established AWW, the employer/carrier may have to pay either partial disability benefits or a “scheduled award”, depending on the nature of the original injury.
There are certain injuries which are subject to a scheduled award. For example, if an injured worker has an arm injury, is at Maximum Medical Improvement (MMI), work is available and has a 10% permanent impairment rating, he or she would be entitled to a scheduled award but no further total disability benefits unless there is a change in condition. However, if a person has a back injury and is at MMI, he or she would still be entitled to total disability benefits if he can prove that he or she has made a diligent but unsuccessful attempt to find suitable work. This is normally a issue which is litigated and there are many scenarios which may come into play. For a list of “scheduled injuries’, see .
Maximum medical improvement is a medical term which signifies that the employee has recovered from his or her injuries as much as can be expected and the medical providers have done everything they can do medically. If the employee reached this point and still cannot work, he or she may be entitled to “permanent and total” (PTD) disability benefits. These benefits are generally reserved for those injured workers who will most likely be unable to work for the rest of their lives. This benefit carries with it an automatic cost of living allowance.
[edit] Medical treatment
While under the Longshore & Harbor Workers’ Compensation Act (LHWCA), the employee has the right to choose his or her physician to be seen at the employer/insurer’s expense. Because these cases generally originate overseas in military areas, this may not be practical at the time of the injury. An employee injured in Iraq may only have one source of treatment. Therefore, there is no choice. In that situation, an employee can accept the treatment without making his or her “choice of physician” at that time. If the injury is serious enough to require a return home, the employee can make his or her choice of physicians at that time. The choice is a one time election; if the election is made overseas, it cannot be made thereafter once the injured worker returns home.
The medical benefits under the DBA includes prescription medications, medical equipment or appliances, mileage, parking and other medical expenses that are prescribed by an authorized physician and are both reasonable and necessary. The medical expenses are paid under a fee schedule and the total bill is normally not paid. However, the injured worker is not responsible for the portion not paid.
[edit] Settlement and attorneys' fees
There is a mechanism under which cases under the DBA may be settled. Settlements are voluntary and no one side can force the other to settle. Like most other workers’ compensation systems, there are no damages such as pain and suffering. The amount of the settlement depends on what the employer/insurer could expect to pay if the case is not settled. Also, while there is a program where an Administrative Law Judge (ALJ) will mediate a case for the parties, there is no provision in the Act that allows an injured worker or employer/insurer to present the case before an ALJ to determine its value.
As to attorneys’ fees, in these cases, there are no contingency fees allowed (i.e. 25% of benefits collected) and attorneys are paid based on an hourly rate. These fees are generally paid after litigation or at settlement and by the employer/insurer. After a hearing, if the injured worker prevails, his or her attorney submits a Fee Petition to the judge for approval. The employer/insurer is given the opportunity to respond to the petition. The approved fee is paid by the insurer. Similarly, if a case is settled, the fee is generally paid by the insurer and may be subject to negotiation with the insurer as part of the settlement package. These fees are also subject to approval of either the judge or the District Director of the Office of Workers’ Compensation Programs (OWCP).
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[edit] History
Established in 1941, the Defense Base Act (DBA) provides the equivalent of workers' compensation for civilian contractors working in contingency operations in overseas countries such as Iraq and Afghanistan. "As designated by the Secretary of Defense, Operation Enduring Freedom (OEF) in Afghanistan and Operation Iraqi Freedom (OIF) in Iraq are both contingency operations.” [1] The Federal Acquisitions Regulations (FAR) 2.101 defines a Contingency Operation (10 U.S.C. 101(a) (13)) to be a military operation that:
"(1) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of 10 U.S.C., Chapter 15 of 10 U.S.C, or any other provision of law during a war or during a national emergency declared by the President or Congress." [2]
DBA provides benefits in the event that civilian contractors are injured, killed, or kidnapped in the course of their work for US government agencies such as the various branches of the Department of Defense (DOD), U.S. Agency for International Development, (USAID), or the State Department.
According to government documents, the DBA "program was created to provide workers' compensation protections for categories of workers who were outside the jurisdiction of other state or federal workers' compensation systems. The extensions to the Longshore and Harbor Workers' Compensation Act (LHWCA) were enacted to provide coverage to classes of workers who are not covered under any other statutes."[3]
[edit] Contingency contracting
According to the US Army Standard Procurement System website: "Contingency contracting is direct contracting support to tactical and operational forces engaged in the full spectrum of armed conflict and military operations (both domestic and overseas), including war, other military operations, and disaster or emergency relief." [4]
Contingency contracting, by its very nature of working in close proximity to the battlefield, brings high risks. Civilian contractors deliver much needed supplies and services and, in doing so, often find themselves situated closer and closer to hostilities as competitive outsourcing through the US government's A-76 program increasingly determines the most cost-effective way to fulfill government operations is through the private sector. [5]
Susie Dow explains in her three part series on Iraq, Contingency Contracting and the Defense Base Act [6] that not all contingency contractors are actually covered by DBA insurance. And so in the event of kidnapping, beheading, injury or murder, there is not support for the contractor or his/her family. At best, the implementation of the DBA requiring civilian contractors to be insured has been less than uniform and often inconsistent. [7]: “Four basic laws and their amendments define or influence the coverage required under the Defense Base Act as administered by the US Department of Labor.
- Longshore and Harbor Workers' Compensation Act of 1927
- Defense Base Act of 1941
- Mutual Security Act of 1954
- Dayton Peace Accords of 1995' [8]
And, according to the Department of Labor, by July 2006, just three major carriers provide most of the DBA insurance coverage: ACE USA Companies, American International Group (AIG) Companies, and CNA. The Department of Labor has no authority to regulate insurance premium rates. All authorized carriers are regulated by the states in which they operate. [9]
[edit] References
- ^ http://www.dol.gov/esa/owcp/dlhwc/dba.htm DEFENSE BASE ACT -- Public--No. 208--77th Congress Passed August 16, 1941, as Amended S. 1642. An Act to provide compensation for disability or death to persons employed at military, air, and naval bases outside the United States.
- ^ http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_227.htm#P598_135985 FAR 52.228-3 Workers Compensation Insurance (Defense Base Act)
- ^ http://www.dol.gov/esa/owcp/dlhwc/whca.htm WAR HAZARDS COMPENSATION ACT [Public—No. 784—77th Congress, Passed December 2, 1942, As Amended S. 2412 An Act To provide compensation for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes.
- ^ http://www.whitehouse.gov/omb/expectmore/detail.10003904.2005.html
- ^ FAR - Part 2Definitions of Words and Terms
- ^ http://www.epluribusmedia.org/features/2007/20070304_contingency_contracting.html Iraq, Contingency Contracting, and the Defense Base Act] Susie Dow, for ePluribus Media
- ^ http://www.whitehouse.gov/omb/circulars/a076/a076.html “…the Government shall not start or carry on any activity to provide a commercial product or service if the product or service can be procured more economically from a commercial source.”
- ^ DLA Competitive Sourcing (A-76) Contracting Office
- ^ http://www.spscoe.sps.eis.army.mil/contingencycontracting.htm Standard Procurement System, SPS & Contingency Contracting
[edit] External links
- Global Underwriters website provides a general overview of the basic laws and their amendments that define or influence the coverage required under the Defense Base Act as administered by the US Department of Labor.
