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Department of Labor preparing for Defense Base Act to be replaced by new system April 11, 2013

Posted by Aaron Walter in Uncategorized.
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Buried deep within the Department of Labor’s 2014 Budget request lies the first information publicly available on the proposed “reforms” to the Defense Base Act.

The document indicates that the DOL has requested $2 million to implement the new system called the Overseas Contractors Compensation Act (OCCA). This is the first we have heard of this name and it is a piece of legislation that apparently be proposed in the near future.

It is described as a “DOL-administered” program where injured claimant’s would be paid from a collective fund. The thought is obviously to streamline the program and make it cheaper to administer.

Under the current set up, Defense Base Act claimants are entitled to benefits under the Longshore and Harbor Workers’ Compensation Act. It appears this proposal will pull Defense Base Act claims away from the Longshore Act and into a new set of rules and procedures.

This could be a great thing for claimants. Perhaps the new system will more thoroughly compensate claimant’s for their injuries. However, there are reasons to be concerned. First, the Longshore Act has many claimant friendly elements that could be thrown away in this new legislation. Under the Longshore Act claimants have these advantages:

- an initial legal presumption that their injury entitles them to treatment and compensation that must be rebutted by the defense
- the right to an attorney who is paid by the insurance company if they win benefits
- the right to a trial before an impartial judge who does not work for either side
- the ability to settle then claim with the insurer to “move on” with their lives

The Defense Base Act adds one huge advantage as well:
- Cases covered by the Defense Base Act involve injuries in the “Zone of Special Danger.” This is a legal concept that them simplified says strange things happen in strange places and helps claimants prove “unusual” injuries like PTSD, diseases like Hepititis, and injuries or deaths that would not have happened but for the remoteness of a work location (like the middle of a desert).

If the new laws throw out these advantages then the DOL will be doing thousands of claimant’s a disservice, just to streamline the system and make it cost less. Two examples of streamlined systems where a government agency decides whether you get benefits or not are the Federal Employees Compensation Act (FECA) and Social Security Disability (SSD). Talk to someone who has filed for SSD benefits and see whether they tell you that system was a fair “streamlined” experience.

We will be keeping our eyes and ears peeled for more on the OCCA as details become public.

Are you receiving the proper amount in Workers’ Compensation benefits? March 12, 2008

Posted by Herb Chestnut in Uncategorized.
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I had an Informal Conference today.  For those of you who have not gotten to this stage yet, an Informal Conference is your opportunity to discuss a problem you are having with your claim with the District Office of the Office of Workers’ Compensation Programs (OWCP).  The conference is normally held by telephone and involves the claimant (you) or your attorney, the insurance carrier (or its attorney) and a claims examiner from the OWCP.  There is no special method required to request the conference.  A letter from one of the parties  identifying an issue to the District Office where you claim is pending is all that is required.  Even though the conference sounds, like its name, informal, it is a very important part of the process.

Getting back to my conference, one of the issues was average weekly wage (AWW).  Generally, AWW is calculated by first determining if the claimant worked substantially the whole year prior to the injury.  If so, was this work with the same employer or, at least, similar employment?  If so, the wages are simply calculated, divided by 52 and an AWW is determined.  There are several problems which rear their ugly heads, such as: what constitutes “substantially the whole year” and what type of job qualifies as “similar employment”.  According to cases decided under the Longshore and Harbor Workers’ Act (LHWCA), 37 weeks is the benchmark for the term “substantially the whole year”.  Therefore, if you have worked 37 out of the last 52 weeks, you may qualify. 

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Iraq Contractor KBR Has Dodged $500 Million in U.S. taxes March 10, 2008

Posted by Aaron Walter in Uncategorized.
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Kellogg Brown & Root (KBR) sure is a piece of work.  Lets recap a week or so of posts concerning KBR.

 1. KBR has been passing along to the American taxpayer, AIG’s inflated premiums for Defense Base Act coverage, so that KBR (and other contractors in Iraq and Afghanistan) could be insulated from liability for injuries to its employees.

2. KBR is presently being sued in Federal Court for allegedly intentionally causing the deaths of six KBR truck drivers in 2004.

3. Now we discover that the 10,000+ Americans working for KBR, were really working for a Caribean company, not an American one, saving KBR as much as $100 million a year in U.S. Medicare and Social Security Taxes. By claiming its own employees, many of which were hired in Texas and shipped directly to Iraq from there, to be employees of the Cayman Islands corporation Service Employers International Inc, KBR also avoids having to pay for unemployment insurance. That means KBR employees coming home from Iraq are ineligible to recieve unemployment. I bet that wasn’t part of the orientation movie. I also bet it wasn’t part of the pitch to the Department of Defense before they were granted a no-bid contract for work in Iraq.

Fisher v. KBR – Fifth Circuit to Consider Jurisdiction Over Contractors in Iraq March 7, 2008

Posted by Aaron Walter in Uncategorized.
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The sad back story of this court case has come to be known as the “Good Friday Massacre.” Friday, April 9, 2004, hundreds of insurgents attacked a KBR convoy, killing 6 civilian drivers, injuring 14, and leaving another driver still missing to this day.

To make a long story short, KBR a former subsidiary of Halliburton has been accused of knowing that this particular convoy would be attacked, but sent these civilians into the firefight in a risky attempt to pad its bill to the Department of Defense. However, the factual arguments are on hold while a bitter fight ensues concerning jurisdictional questions.

The case, titled Fisher v. Halliburton, 454 F. Supp. 2d 637 (S.D. Tex. 2005), brings up a rarer situation than most Defense Base Act cases. The plaintiff(s) here allege that the Defense Base Act does not bar a traditional tort suit in federal court because the defendant, KBR, intentially harmed the injured and deceased drivers. The plaintiff is right, and though difficult to prove, this is a common exception in most workers’ compensation schemes, including the Defense Base Act and even the state laws here in Georgia.

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