Jumping from a Helicopter Can Be a War-Risk Hazard

A Defense Base Act claimant injured his ankle when he jumped a few inches from a helicopter to the ground below.  The injury occurred at Abu Ghraib prison when, in accordance with custom, the helicopter in which he was traveling “landed” at the prison by hovering a few inches above the ground.  As the helicopter hovered, the occupants exited the aircraft by jumping down to the gravel-covered ground below.  Once all occupants were removed, the helicopter took off again.  This “landing” procedure was commonplace at Abu Ghraib because of the threat of enemy fire.

The issue is whether Claimant’s ankle injury was caused by a ”war-risk hazard.”  The answer is, “Yes,” because the injured worker suffered injuries as a direct result of the operation of an aircraft engaged in war activities operating in a zone of hostility.

Under the War Hazards Compensation Act, a “war-risk hazard” includes “any hazard arising during a war in which the United States is engaged . . . from . . . (5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.”  See 42 U.S.C. § 1711(b).  The operation of an aircraft involves (at least) take off, flight, and landing procedures.  Whether the aircraft in the hypothetical presented above had landed or hovered above the ground is immaterial.  The engine of the helicopter was not turned off and the rotary wings were moving just enough to not create any lift on the helicopter, which remained in operation during this “landing” procedure.  Further, this “landing” procedure occurred at Abu Ghraib prison which was located in a zone of hostility.  Because all the criteria of 42 U.S.C. § 1711(b)(5) were satisfied, the employer and carrier were entitled to reimbursement of the benefits paid for the injured worker’s Defense Base Act claim.

DFEC Requiring Claimant Statements in War Hazards Claims

In the past few weeks, I received two information requests from the Division of Federal Employees’ Compensation (“DFEC”) in connection with two Applications for Reimbursement submitted pursuant to the War Hazards Compensation Act ["WHCA"].  Specifically, DFEC asked for written statements or a deposition from an injured worker.  DFEC sends these types of requests often, and mostly in connection with cumulative exposure psychological disability claims.

Two regulations serve as the backdrop for this post: 20 C.F.R. § 61.101 and 20 C.F.R. § 61.102.  The first regulation, 20 C.F.R. § 61.101, describes the documents that shall be submitted (if available) with a reimbursement request.  The specific language at issue here is: “When filing an initial request for reimbursement under the Act, the carrier shall submit copies of all available documents related to the workers’ compensation case, including– . . . (2) Statements of the employee or employer . . . .”  See 20 C.F.R. § 61.101(c).

The next regulation at issue is 20 C.F.R. § 61.102(a).  This regulation states: “If [DFEC] finds that insufficient or inadequate information has been submitted with the claim, the carrier shall be asked to submit further information.  Failure to supply the requested information may result in disallowance of items not adequately supported as properly reimbursable.”

The first request I received from DFEC stated that reimbursement could not be issued until DFEC received “statements or the deposition from [Claimant] in which he describes the incidents he witnessed that he feels caused his PTSD.  Simply providing reports of incidents in Afghanistan is not adequate to determine if his condition is acceptable under the war hazard act.”

It should be noted that the underlying DBA claim involved in the first request had to be resolved by using the procedures described in OWCP Bulletin No. 05-01 for informal conferences and uncooperative claimants.  The Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) properly noticed the informal conference and the claimant failed to appear.  Following the Bulletin faithfully, DLHWC issued a Memorandum of Informal Conference with the information available to it.  DFEC, however, felt that “the Longshore conference memo that is on file does not provide much information concerning this claim.”  Considering the fact that the claimant refused to appear at the informal conference, the lack of information is not surprising.  That is why an OWCP Bulletin No. 05-01 informal conference was used to resolve the claim.  The kicker to this request is that the “reports of incidents” mentioned in DFEC’s information request referred to reports from the employer, the military, and mental health professionals about the cause, nature, and extent of this specific injured worker’s psychiatric disability.

DFEC’s second information request didn’t ask for a deposition, but it did ask for a written statement.  According to the correspondence, DFEC ”requires” a “written statement from the employee as to what he experienced while at Camp [REDACTED] and Camp [REDACTED] that would qualify as a War Hazard exposure and his reaction to that exposure.”  DFEC recognized that while ”20 CFR Section 61.101(c) does indicate that the carrier must submit available documentation, section 20 CFR Section 61.102(a) also indicates if the office finds the information insufficient or inadequate the carrier shall be requested to submit further documentation.  The statement of exposure, which can be in a simple written statement, is part of the further documentation to support the claim.”  The underlying DBA claim in this instance was resolved with a Section 8(i) settlement agreement signed by the claimant.  Settlements that are read, edited, revised, and signed by a claimant who is in agreement with all statements and certifications made in the agreement are not regarded as ”written statements from the employee.”

So, based on the language used in the requests sent to me, DFEC can ask for a statement under either 20 C.F.R. § 61.101 or 20 C.F.R. § 61.102.  If the statement is not available under 20 C.F.R. § 61.101(c), DFEC takes the position that it can use 20 C.F.R. § 61.102  to delay–or even deny–the reimbursement because of the absence of the statement.  All that DFEC needs to delay or deny reimbursement is the feeling that “insufficient or inadequate documentation has been submitted,” no matter whether 20 C.F.R. § 61.101 has been satisfied.

DFEC also referenced the Benefits Review Board’s Armani decision, stating that “[a]n informal statement is not excluded” by Armani.  This is a peculiar position for DFEC to take considering the Director’s briefs in Armani.  In the “Director’s Response Brief Opposing Employer’s Motion for Reconsideration En Banc,” the Director had the following to say about claimant statements:

“[T]he regulation requires only that the employer ‘submit all available documents related to the workers’ compensation case, including . . . (2) Statements of the employee or employer.’  The regulation [20 C.F.R. § 61.101(c)] does not require a statement from the employee at all; it merely requires the employer to submit one if it is available.”

See Director’s Response Brief, at 7 (emphasis in original) (internal citation omitted).

It appears that there is a definite tension in regulatory interpretation.  DFEC wants written statements from the employee and delays or denies lawful reimbursements without them.  Yet, the Director says that the relevant WHCA regulation “does not require a statement from the employee at all.”   So, which position controls?  Should DFEC be given deference, or should the Director be given deference?  Should employers and carriers abide by the Director’s interpretation of the regulations or DFEC’s interpretation of the regulations?

Books for Longshore and DBA Practitioners

For all of the great information available online, I am still a fan of books.  These are some of the Longshore and DBA books that I keep on my shelves:

  1. My favorite DBA book is LexisNexis’s Defense Base Act and War Hazards Compensation Act Handbook.  Simply put, all DBA practitioners need this book.  Why?  Because it is the only one of its kind.  The DBA is a relatively new practice area when compared to the century-old history of the Longshore and Harbor Workers’ Compensation Act.  Having a specialized book that addresses DBA-specific concerns and the DBA’s interplay with the WHCA is important.  Best yet, the book includes articles from attorneys from both sides of the aisle.  The Defense Base Act and War Hazards Compensation Act Handbook is available here.
  2. Another great book is The Longshore Textbook from Lawyers & Judges Publishing Company, Inc.  Already in its Sixth Edition, this book addresses all things Longshore.  It is written in a way that makes it accessible for “attorneys, adjusters, physicians, vocational counselors, and insurance professionals.”  Moreover, Mouledoux Bland’s own Alan Brackett is a contributor.  The Longshore Textbook is available here.
  3. Although it is less Longshore-specific, Schoenbaum’s Admiralty & Maritime Law is a must-have.  The Longshore section is brief, but it is a good, quick, and helpful explanation of the Act.  Schoenbaum’s Admiralty & Maritime Law is available here.

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.