By Karen Yotis, Esq.
(Editor's Note: The following is an excerpt of a LexisNexis Emerging Issues Analysis commentary. Information on purchasing the complete article is set forth below.)
When the matter at hand involves the Defense Base Act (DBA) or a reimbursement claim under the War Hazards Compensation Ac (WHCA), the go-to expert is Roger A. Levy, of counsel at the San Francisco firm of Laughlin Falbo Levy & Moresi. Levy was recently interviewed about a presentation on WHCA reimbursement claims, which he delivered at Loyola’s 2011 Annual Longshore Conference. Levy talked about the history and basic provisions of the WHCA, analyzed a set of somewhat surprising statistics, outlined interesting fact patterns and misconceptions involving WHCA claims, and shared practice pointers.
As explained by Levy, “it is no secret that much of the government's work that is being done in connection with the wars in Iraq and Afghanistan is being done by civilians…whose employers have contracts with government agencies approved by the United States government, or one of the other bases for coverage under the Defense Base Act (DBA).” Levy noted that many of these American and foreign national workers are being injured and killed while doing their jobs and that during the last 10 years the number of claims has increased under the WHCA given the shifting of much of the traditional military’s work to the private sector. Typical jobs being performed by the private sector are security, catering, translation, electrical, and motor pool work.
Background and Purpose of WHCA
According to Levy, Congress enacted the WHCA in 1942 based on its recognition that “it would be difficult to get civilian employers to take on the government's work without some assurance that the losses of life injuries caused by war-risk hazards would be borne by the government.” Likewise, “insurance companies like to insure a risk they understand and can ‘actuarialize’”. Another reason why the WHCA was enacted was the recognition that “there was an obligation by the government to care for civilian workers taken prisoner.”
WHCA Claims Statistics
According to Levy, there have been 1,140 cases submitted to DFEC under the WHCA through December 31, 2010, and based on the records in his office, they have made “463 submissions that had a value of $77,128,000, with claims of $45,292,989 that have been approved and paid to date.” Levy states that their “average submission is $166,585.08, and the average paid to date on those claims was $97,825.” Levy cautions this is very rough math, but it can be assumed that the total value of submissions for 1,140 cases submitted to DFEC “would have a value of $189,906,900, and accepted or paid using the same ratio would be $111,520,000.” Levy stated he wanted to “dispel a notion these people don't pay, because they do.”
Post-Traumatic Stress Disorder
Levy noted that “there have been more PTSD claims as a result of civilians being exposed to war-risk hazards in these wars”, making PTSD “one of the larger components of the liability, both admitted and disputed, in recent years.”
Challenges to Coverage
According to Levy, documentation has always been a challenge, but that carriers have become savvy now in what they need to document in a claim. Levy also noted the problems in getting investigation costs reimbursed when they are the only cost incurred.
Interesting WHCA Fact Patterns
The interview with Levy includes a discussion of interesting WHCA fact patterns, including airplane crashes, hostile forces, zone of hostility, conflicts in employer and medical documentation, friendly fire, mistaken identity, and accidental discharge. For example, with respect to airplane crashes, “There is a provision in the WHCA that covers injuries or deaths as a result of the operation of vessels or aircraft in a zone of hostilities. There is no requirement that the airplane crash be the result of a hostile act of an enemy force. In other words, the aircraft does not have to be shot down.”
What Are the Biggest Misconceptions About WHCA Reimbursement Claims?
According to Levy, there are quite a few misconceptions out there, with the biggest one being that you can’t settle a war hazard claim. As Levy put it, this is “just plain wrong”. To find out why, as well as the other big misconceptions about WHCA claims and relief, purchase the complete article by Karen Yotis here at the LexisNexis Bookstore. If you’re a lexis.com subscriber, you can access the complete article here (an additional fee might apply).
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