Tragic Aircraft Crash in Afghanistan and the Scope of the War Hazards Compensation Act

This morning the Washington Post, and countless other news agencies, printed a sad story about a National Air Cargo plane crash in Afghanistan that claimed the lives of seven Americans.  The article is available here.  Shortly after takeoff from the Bagram Air Base in Afghanistan, the plane lost altitude, falling to the ground.  Although the Taliban claimed responsibility for the downed aircraft, there is no indication that insurgents were involved in the crash.

Our hearts go out to the surviving family and friends of these Americans.

We do not know the facts behind the crash, and we cannot comment on the applicability of the Defense Base Act or the War Hazards Compensation Act to this particular event.  Nonetheless, assuming that the DBA does apply, this tragic event demonstrates the interesting interplay between the DBA and WHCA, and the scope of the WHCA’s “airplane” inclusion.

For our hypothetical, assume the following:

1. Each of the decedents have statutory beneficiaries entitled to Section 9 death benefits;

2. The DBA applies to the claims;

3. The decedents were killed in an airplane crash in Afghanistan;

4. The airplane crash was not caused by the actions of hostile forces or persons (i.e. terrorists).

Once DBA coverage is established, the beneficiaries receive death benefits.  But does the WHCA also apply such that an employer or carrier could seek reimbursement of the benefits paid?  The answer is, “Yes.”

The same facts that entitle a claimant to DBA benefits will also entitle an employer or carrier to WHCA reimbursement.  Every injury has only one set of facts.  Thus, two things happened simultaneously when our hypothetical plane crashed: the statutory beneficiaries became entitled to DBA benefits, and the employer and carrier became entitled to WHCA reimbursement.

If an employer, carrier, or compensation fund must pay DBA benefits for an injury or death caused by a “war-risk hazard,” then that employer, carrier, or compensation fund shall be entitled for reimbursement of the benefits paid.  See 42 U.S.C. § 1704.  In every case, it is crucial to determine whether the injury was caused by a “war-risk hazard,” which is defined by the United States Code and the Code of Federal Regulations.  The United States Code says:

The term “war-risk hazard” means any hazard arising during a war in which the United States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a person covered by this Act is serving; from–

1. the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attack by a hostile force or person; or

2. action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies; or

3.the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or person as defined herein (except with respect to employees of a manufacturer, processor, or transporter of munitions during the manufacture, processing, or transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter); or

4. the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or

5. the operation of vessels or aircraft in a zone of hostilities or engaged in war activities

See 42 U.S.C. § 1711.

If the DBA benefits are paid because of an occurrence enumerated in the “war-risk hazard” definition, reimbursement is appropriate.  Whether the Taliban or any other terrorist had a hand in the aircraft crash is irrelevant.  Whereas a “hostile force or person” is identified in the first three categories of “war-risk hazard” occurrences, that term does not appear in connection with vessels or aircraft.  A “hostile force or person” is not a requirement for reimbursement.  All that is needed to secure WHCA reimbursement for an aircraft crash is a DBA injury caused by a mishap in “the operation of…aircraft in a zone of hostilities.”

But what about more minor injuries?  Those injuries may be entitled to reimbursement as well.  The key is whether the aircraft is in “operation.”  Reimbursement has been made available for a DBA back injury caused by a hard helicopter landing, where the landing was caused by a blade strike.  Likewise, reimbursement was granted for a DBA ankle injury sustained by a contractor when he jumped out of a helicopter hovering two inches off the ground.  Why?  Because landing an aircraft is a part of the operation of an aircraft.  One can only imagine that injuries occurring during other operation events, like fast-roping, would also result in reimbursement.

Jon Robinson
As a Member at Mouledoux, Bland, Legrand & Brackett, Jon Robinson focuses his practice on the representation of employers and carriers in matters arising under the Longshore and Harbor Workers' Compensation Act, the Defense Base Act, and the War Hazards Compensation Act. He can be contacted at (504) 595-3000 or by e-mail at jrobinson@mblb.com.
Jon Robinson