Top Workers’ Compensation Blog Honoree – 2014

We received a great Christmas present the other day.  LexisNexis included Navigable Waters as one of the Top Blogs for Workers’ Compensation and Workplace Issues.  This most certainly makes for happier holidays.  Thank you.

Here is what LexisNexis had to say about our blog:

Navigable Waters
http://navwaters.com
Published by Mouledoux, Bland, Legrand & Brackett

A consistent name on our Top Blogs list is Navigable Waters, a Maritime, Longshore and Defense Base Act Blog, published by New Orleans law firm, Mouledoux, Bland, Legrand & Brackett. Receiving an award for the fifth consecutive year, the firm continues to post informative content on a timely basis. Whether it’s a piece on punitive damage recovery under maritime law [see http://navwaters.com/2014/09/30/punitive-damages-not-recoverable/], a post discussing the ability to reach LHWCA benefits to pay spousal support [see http://navwaters.com/2014/11/10/pa-court-requires-use-of-longshore-benefits-to-pay-spousal-support/], or the fascinating discussion of Yates v. United States, argued before the U.S. Supreme Court, which may decide whether a commercial fisherman’s action of throwing undersized fish back into the ocean could be a potential violation of the “anti-shredding” provision of Sarbanes-Oxley Act (Comp folks might not be familiar with “Sarbox.” Enacted in 2002 (Pub.L. 107-204), the law deals primarily with accounting fraud and other practices made famous in the Enron debacle) [see http://navwaters.com/2014/10/30/is-sarbanes-oxley-really-this-fishy/], this blog continues to be a real winner.

Why Amending the Defense Base Act with H.R. 5721 Is a Bad Idea

3063021398_2f91ba9b21_z - CapitalOn November 17, 2014, Representative Stephen F. Lynch (MA) introduced H.R. 5721, the Overseas Security Personnel Fairness ActRep. Lynch’s news release states that the purpose of H.R. 5721 is to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.”  To achieve his its goal, H.R. 5721 proposes an amendment to the Defense Base Act (“DBA”).  Ultimately, H.R. 5721 appears destined to fail.

The Reason for H.R. 5721:

Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya.  Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack.  He was unmarried, with neither children nor other dependents.  Yet, he had activated a mandatory Defense Base Act insurance policy before deploying to Libya wherein he had designated a beneficiary.

The Text of H.R. 5721:

The Overseas Security Personnel Fairness Act is short.  It states, in full:

A BILL

To amend the Defense Base Act (42 U.S.C. 1651 et seq.) to require death benefits to be paid to a deceased employee’s designated beneficiary or next of kin in the case of death resulting from a war-risk hazard or act of terrorism occurring on or after September 11, 2001.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1.  SHORT TITLE.

This Act may be cited as the “Overseas Security Personnel Fairness Act”.

SECTION 2.  DEFENSE BASE ACT AMENDMENTS RELATING TO DEATH BENEFITS

The Defense Base Act (42 U.S.C. 1651 et seq.) is amended by adding at the end of the following new section:

“SEC. 6. DEATH BENEFITS.

“(a) In General.–In the case of a person covered by this Act who dies as a result of a war-risk hazard or act of terrorism, if there is no person eligible for a death benefit of the deceased under section 9 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 909), then the benefits provided under section 9(b) of such Act to a widow or widower of the deceased shall be paid–

“(1) to a beneficiary designated by the deceased; or

“(2) if there is no designated beneficiary, to the next of kin of the estate of the deceased under applicable State law.

“(b) Payment of Benefits.–Benefits found to be due under this section shall be paid from the compensation fund established pursuant to section 8147 of title 5, United States Code.

“(c) War-Risk Hazard Defined.–In this section, the term ‘war-risk hazard’ has the meaning provided in section 201(b) of the War Hazards Compensation Act (42 U.S.C. 1711(b)).

“(d) Effective Date.–The death benefit payable under this section shall apply with respect to deaths occurring on or after September 11, 2001.”.

Implicated Statutory Schemes:

Phew.  There is a lot going on in H.R. 5721.  It references the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, the War Hazards Compensation Act, and by reference to 5 U.S.C. 8147, the Federal Employees’ Compensation Act.

To understand what H.R. 5721 is doing, start at section 9 of the Longshore Act.  In the event of a work-related death of an employee covered by the Longshore Act, benefits are paid according to section 9.  Potential beneficiaries are defined by statute, with some classes of beneficiaries (e.g., widow and kids) preferred over other classes of beneficiaries (e.g., parents).  If a preferred class exists, then the preferred class takes benefits to the exclusion of the less preferred classes.

The Defense Base Act is an extension of the Longshore Act that applies to overseas federal contractors.   It has equal force for citizens of the United States and non-citizens, non-residents of the United States.  The DBA applies the Longshore Act exactly as the Longshore Act is written, except where the Defense Base Act says differently.

H.R. 5721 proposes adding a section to the DBA that would create more potential death benefits beneficiaries.  But the new beneficiaries would only receive benefits if (1) there are no statutory beneficiaries as defined by the Longshore Act and (2) the death was caused by a “war-risk hazard.”

According to the War Hazards Compensation Act, a “war-risk hazard” includes:

(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 attach 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 [in the WHCA] (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.

So, if a death is caused by one of these things, and there are no other beneficiaries, then a beneficiary designated by the deceased could receive benefits.  But not from the employer or carrier.  And not from the Special Fund maintained by the Division of Longshore and Harbor Workers’ Compensation Act–the agency that administers the Defense Base Act.  Instead, the designated beneficiary would be paid by the Employees’ Compensation Fund, which is the fund managed by the Division of Federal Employees’ Compensation–the agency that administers the War Hazards Compensation Act.

Why H.R. 5721 Won’t Work:

Really, a law review essay could be written about the reasons why H.R. 5721 will not work.  For this blog post, I will pose just a few of the problems:

First, why is Representative Lynch trying to amend the Defense Base Act instead of amending the War Hazards Compensation Act–and only the WHCA?  If the Defense Base Act does not apply to a particular claimant, yet the injury was caused by a “war-risk hazard,” then that claimant may file a claim for benefits pursuant to Section 101(a) of the WHCA.  If H.R. 5721 requires payment out of the Employees Compensation Fund instead of payment from a Defense Base Act insurer pursuant to a DBA insurance policy, then the problem that Representative Lynch is trying to solve should be limited to the WHCA.  In my opinion, H.R. 5721 goes out of its way to amend the DBA when the DBA should not have been implicated in the first place.

Second, what about aliens and nonnationals?  Section 2(b) of the Defense Base Act, which addresses death benefits to foreign nationals, limits beneficiaries to the “surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother….”  Does H.R. 5721 have any affect on the rights of aliens and nonnationals who may also designate a beneficiary?

Third, why is H.R. 5721 limited only to “war-risk hazard” deaths?  Based on the language used, H.R. 5721 would not apply to the death of a DBA contractor unless the death was caused by a “war-risk hazard” or act of terrorism.

Fourth, retroactive to September 11, 2001?  This would involve reopening closed cases where the applicable statute of limitations–section 13 of the Longshore Act–has long expired.

The Better–and Simpler–Course of Action:

Instead of amending the Defense Base Act, Representative Lynch should have taken a closer look at the War Hazards Compensation Act.  Section 101(a) allows WHCA benefits when an employee specified in section 1(a)(5) of the DBA is injured or killed, yet no compensation is payable with respect to the injury or death.  Further, section 102(a) of the WHCA provides information for the payment of death benefits, stating that “the scale of compensation benefits and the provisions for determining the amount of compensation and the payment thereof as provided in sections 8 and 9 of the Longshoremen’s and Harbor workers’ Compensation act . . . can be applied under the terms and conditions set forth therein . . . .”

All things considered, Representative Lynch could achieve the same result by amending only section 102 of the WHCA.  Although the Division of Federal Employees’ Compensation may have a headache or two applying the amendment, at least Representative Lynch could avoid turning the Defense Base Act on its ear with respect to death benefits.

Conclusion:

I doubt that H.R. 5721 will pass, despite the sympathetic reasons that led to Representative Lynch’s introduction of the Bill.  Still, though, Representative Lynch could consider proposing new legislation in the future that amends section 102 of the WHCA, thus accomplishing the same results.

Finally, here is a hyperlink to the Glen Doherty Memorial Foundation.  With the holiday season upon us, it is a good time for donating to the foundation.

Image courtesy of Flickr by user Cliff1066.

Move Over Apple, Here Comes DLHWC: Introduction to SEAPortal

The Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) has decided to step up its technology game. In an Industry Notice dated October 31, 2014, The DLHWC introduced its new secure electronic access portal known as SEAPortal. The portal, which is optional for stakeholders, is an OWCP sponsored web-based application that purports to streamline submission of claim-related documents.

The SEAPortal can be accessed at the OWCP/DLHWC website, or at https://seaportal.dol-esa.gov. Once accessed, a user need only provide: 1) the claim’s OWCP number; 2) the claimant’s last name; 3) claimant’s date of birth; and 4) the date of alleged injury. The SEAPortal then provides step-by-step instructions for uploading a file onto the system. The portal does not accept case creation longshore forms, such as LS-201, LS-202, LS-203, or LS-262, but does accept a variety of other documents including informal conference requests, formal hearing requests, settlement applications, special fund applications, copy requests, longshore forms, medical reports, other correspondence, and DOL vocational rehabilitation documents.

Once a document is uploaded onto the system, it will be assigned a Document Control Number (DCN) and reflect a status of either “received,” or “processed.” The Industry Notice advises that the Upload Date will be used for purposes of calculating deadlines.

While this system has so far proved to be efficient, there are some limitations to its use. For instance, the SEAPortal is only used to verify receipt of the document. The portal does not verify when, or if, the OWCP or another party have taken any action in the claim. The portal also does not act as service on other parties. Copies of documents will NOT be provided to other parties of record via SEAPortal; the parties must serve copies of the uploaded document on their own initiative. And lastly, the SEAPortal cannot be used to submit documents to the Office of Administrative Law Judges (OALJ) or the Benefits Review Board (BRB) as any documents must be sent directly to those entities per their respective instructions.

Based on our experiences thus far, we are encouraged by the technological advancements of the DLHWC. The SEAPortal is certainly a step, or an upload, in the right direction.

See http://www.dol.gov/owcp/dlhwc/lsindustrynotices/industrynotice148.htm for more information.

Is Erik Prince Right? Should We Fight ISIS with Defense Contractors?

Is Erik Prince, the ex-Blackwater CEO, right?  Should the United States use Defense Base Act contractors to fight ISIS?  On his blog for Frontier Services Group, Mr. Prince wrote a post entitled, “Chairman’s Column – Thoughts on Countering ISIS,” which I’ve reproduced in full below:

As someone who spent many years operating in Iraq, Afghanistan, and other underdeveloped countries facing existential security threats, I was recently asked about my reaction to President Obama’s plan for fighting ISIS.

My immediate response is that the President’s current plan seems half-hearted at best. American air power has significant reach and accuracy, but ultimately will be unable to finish the job of digging ISIS out of any urban centers where they may seek shelter amongst the populace. Clearing operations ultimately fall to the foot soldier. The Iraqi army is demonstrably inept after billions spent on training and equipping them. Providing them more gear is a high risk endeavor. When ISIS first attacked, the Iraqi army folded, quickly providing ISIS with five heavy divisions of US weaponry (tanks, howitzers, armored vehicles and even helicopters) and three logistic support units’ worth of equipment and munitions.  The Kurds, once a lean and strong fighting force that routinely rebuffed Saddam’s forces, now find themselves outgunned, under-equipped, and overwhelmed. But they do fight, and they fight bravely. The Kurds’ biggest problem is the US State Department blocking them from selling their oil and from buying serious weaponry to protect their stronghold and act as a stabilizing force in the region.

Unfortunately, the DOD has mastered the most expensive ways to wage war, adding only very expensive options to the president’s quiver. Flying off of an aircraft carrier in the north end of the Persian Gulf may be a great demonstration of carrier air power suitable for a high tempo war, but the costs will quickly become staggering, far higher than they need be for what will quickly become a counter-insurgency effort.

As I explain in my book, “Civilian Warriors: The Inside Story of Blackwater and the Unsung Heroes of the War on Terror,” the private sector has long provided nations around the world with innovative solutions to national defense problems in a variety of ways, from the kinetic to the background logistical support necessary to keep militaries humming. If the old Blackwater team were still together, I have high confidence that a multi-brigade-size unit of veteran American contractors or a multi-national force could be rapidly assembled and deployed to be that necessary ground combat team. The professionals would be hired for their combat skills in armor, artillery, small unit tactics, special operations, logistics, and whatever else may be needed. A competent professional force of volunteers would serve as the pointy end of the spear and would serve to strengthen friendly but skittish indigenous forces.

The American people are clearly war-fatigued. Defeat was already snatched from the jaws of victory by the rapid pullout of US forces in 2009. Afghanistan will likely go the same way after never truly defeating the Taliban. Now the danger of a half-baked solution in Iraq is that if ISIS isn’t rightly annihilated, they will portray their survival as a victory over the forces of civilization; thus, there is no room for half-measures. The longer ISIS festers, the more chances it has for recruitment and the danger of the eventual return of radical jihadists to their western homelands. If the Administration cannot rally the political nerve or funding to send adequate active duty ground forces to answer the call, let the private sector finish the job.

Mr. Prince’s message is simple: defense contractors are the cheaper option for combating terrorists, both financially and politically.  Not surprising, those comments have garnered media attention.  For instance, the Washington Post published at article entitled, “Let contractors fight the Islamic State, Blackwater founder Erik Prince says.”

But is Mr. Prince right?  In my opinion, yes.  And, more likely than not, the United States agrees.  Consider the May 2013 Congressional Research Service report, “Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress,” where the CRS did a good job of explaining the importance of defense contractors:

DOD has long relied on contractors to support overseas military operations.  Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.”  Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–both in terms of the number of contractors and the type of work being performed.  According to DOD data, contractors, on average, represented just over half of the force in the Balkans, Afghanistan, and Iraq.

As of March 2013, there were approximately 108,000 DOD contractor personnel in Afghanistan representing 62% of the total force.  Of this total, there were nearly 18,000 private security contractors, compared to 65,700 U.S. troops.  Over the last six fiscal years, DOD obligations for contracts performed in the Iraq and Afghanistan areas of operation were approximately $160 billion and exceeded total contract obligations of any other U.S. federal agency.