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Defense Base Act and War Hazards Compensation Act Handbook, Roger A. Levy, Editor-in-Chief

This is the first practical guide published on the Defense Base Act and War Hazards Compensation Act. The handbook is written for attorneys, claims adjusters, judges, defense contractors, injured workers, and others. It provides the reader with a basic introduction to the Defense Base Act, its history and purpose, current events, and a list of common acronyms and terminology.

It also discusses coverage issues, underwriting, waivers, exclusivity rules, types of benefits, the claims process, discovery issues, average weekly wage calculations, zone of special danger doctrine, commutations, settlements, and death benefits.

There's also a chapter on the War Hazards Compensation Act and how benefits are obtained under that Act.

A detailed table of contents is included below. 

Contributing Authors:

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, LLP, San Francisco, CA. Roger A. Levy is presently of counsel and former partner with Laughlin, Falbo, Levy & Moresi, LLP. Mr. Levy has been a practicing attorney in the state of California since January of 1970. During that time he has devoted his practice almost entirely to work-place injuries. He first represented claimants, then joined the defense firm of Sedgwick, Detert, Moran and Arnold in 1973 and became a partner five years later. There he concentrated on defending California state matters until the 1972 amendments to the LHWCA took hold, at which time he changed his focus to federal cases. In 1985 he became a founding partner in Laughlin, Falbo, Levy & Moresi, the nation's largest firm whose practice is devoted exclusively to the defense of workers' compensation cases. There he has continued his emphasis on the LHWCA and related matters. He has presented at numerous conferences and seminars throughout the country on issues including LHWCA jurisdiction, third-party remedies, mediation, the Defense Base Act, and War Hazards Compensation Act, and has authored numerous articles and publications on these subjects.

David C. Barnett, Barnett and Lerner, PA, Fort Lauderdale, FL. David C. Barnett received two undergraduate bachelor degrees from the University of Maryland, and his juris doctorate from Nova Southeastern University Law School. He began practicing law in the State of Florida in 1991 and is a founding partner in the law firm of Barnett & Lerner, PA, located in Fort Lauderdale, Florida. His practice currently centers on representing injured workers covered under the Defense Base Act, Non-Appropriated Funds Act, Longshore and Harbor Workers' Compensation Act, Jones Act and various State Workers' Compensation matters. He further handles general maritime claims including the representation of passengers who have been injured while taking a cruise. He is admitted to practice in the State of Florida, as well as the Federal Courts for the Southern District of Florida and has an extensive litigation practice, wherein, he has tried both jury and non-jury trials in State and Federal Court. He has frequently lectured throughout the United States on various maritime and injured workers topics. 

Roger D. Ellickson, Consultant, Defense Base Act and International Insurance, Round Lake, IL. Roger D. Ellickson worked in the underwriting end of the insurance industry for over 40 years before retiring in January 2008. He attended the University of Buenos Aires in Buenos Aires, Argentina, where he received a degree in International Relations. Most of his career has been spent in the international underwriting area, and he has worked overseas in as well as having traveled for business purposes to over 40 countries. Prior to his retirement, he was the Director of Casualty Underwriting for CNA Insurance International, based out of Chicago. In this role, he was directly responsible for all Defense Base Act underwriting and was active in successful underwriting of government programs for the U.S. Agency for International Development, the U.S. Department of State, and the U.S. Army Corps of Engineers. Mr. Ellickson is currently active as an international insurance consultant and Defense Base Act consultant.

Keith L. Flicker, Flicker, Garelick & Associates, LLP, New York, NY; Saddlebrook, NJ. Keith L. Flicker is a graduate of the Columbia University School of Law (J.D. 1978) and received a degree in Economics from New York University, where he graduated summa cum laude and was the recipient of the NYU Founder's Day Award (B.A. 1974). He is a member of the New York and New Jersey bars, admitted to practice before the state and federal courts of those jurisdictions, as well as before the United States Courts of Appeal for the 1st, 2nd, 3rd, 4th, 6th, 9th and Federal Circuits and the United States Supreme Court. In 1985 he founded the firm of Flicker, Garelick & Associates practicing civil, commercial and administrative litigation and trial work focusing on the insurance, marine and intermodal transportation industries with a concentration on the defense of carriers and employers with exposures under the Defense Base Act and related statutes. As senior trial counsel and advisor to many of the federal compensation industry's leading corporations Mr. Flicker has tried hundreds of cases before the administrative bodies and courts that are charged with the judicial resolution of DBA and longshore claims. He has also tried dozens of maritime and commercial cases, jury and non-jury alike, before federal and state courts throughout the country. He regularly speaks at and presents seminars to employers, adjusters, attorneys, underwriters, brokers and managers involved in DBA and War Hazard Compensation Act matters. Mr. Flicker wishes to express his gratitude to Brendan McKeon, an associate at Flicker, Garelick & Associates, for his contributions to Ch. 10, Zone of Special Danger, for this handbook.

Richard L. Garelick, Flicker, Garelick & Associates, LLP, New York, NY; Saddlebrook, NJ. Richard L. Garelick received his Bachelor of Arts degree from New York University in 1983, and his Juris Doctorate in 1986 from Brooklyn Law School. He was admitted to practice in New York in 1987 and in New Jersey in 1986. Mr. Garelick has been affiliated with Flicker, Garelick & Associates since its founding in 1985, and he became a principal of the firm in 1994. His national practice focuses on the defense of claims arising under the Longshore and Harbor Workers' Compensation Act and its statutory extensions (including the Defense Base Act), as well as the defense of workplace injury actions brought by seamen and rail workers. Mr. Garelick frequently lectures on these specialized areas of workers' compensation and personal injury law.

Joshua T. Gillelan II, Longshore Claimants' National Law Center, Washington, D.C. Joshua T. Gillelan II received his B.A. from St. John's College in Annapolis, and his J.D. from the University of Maryland in 1973. As a member of the Longshore staff of the Office of the Solicitor of Labor in Washington, DC, from 1973 until 2004, he represented the Director, OWCP, in more than 300 cases before the United States courts of appeals, including many of the most important precedent-setting cases decided since the 1972 Amendments to the Act, and hundreds of cases before the Benefits Review Board. He established the Longshore Claimants' National Law Center in July 2004 for the co-representation of LHWCA claimants and Jones Act plaintiffs, particularly on appeal.

David M. Linker, Freedman & Lorry, PC, Philadelphia, PA. David M. Linker received his Bachelor of Arts from Temple University in 1977, and his Juris Doctorate from Villanova University School of Law in 1980. Mr. Linker has extensive experience in state and federal courts in both Pennsylvania and New Jersey. He is responsible for all aspects of litigation from initial pleadings through verdict. He also currently serves as a lecturer in the area of Longshore and Harbor Workers' Compensation Act. Mr. Linker is licensed in Pennsylvania and New Jersey federal and state courts, and is a member of the bar of the U.S. Supreme Court.

William B. Newton, Ashcraft & Gerel, LLP, Washington, D.C. William B. Newton was born in DeKalb, IL . He attended the School of Foreign Service at Georgetown University, where in 1995 he earned his Bachelor of Science in Foreign Service, and completed the European Studies Certificate honors program. He went on to earn his Juris Doctorate from the University of Notre Dame in 1999, where he completed the Concannon Program in International and European Law, spending his 2L year studying in London, England. Mr. Newton returned to London to earn his M.A. in Art Business at Sotheby's Institute, where he completed a research dissertation on legal pitfalls and business opportunities in the Spanish international art market. Mr. Newton was admitted to the District of Columbia Bar in 2007.

Mark L. Schaffer, Ashcraft & Gerel, LLP, Washington, D.C. Mark L. Schaffer was born in Boston, Massachusetts. He attended Boston University as an undergraduate, where he received an A.B. degree, magna cum laude, in 1967. After attending Georgetown University Law School and receiving his Juris Doctorate degree in 1972, Mr. Schaffer was admitted to the Maryland and District of Columbia Bars in 1972 and the bar of the United States Supreme Court in 1978. Mr. Schaffer is a member of the Bar Association of the District of Columbia, the District of Columbia, Maryland State and American Bar Associations and the Association of Trial Lawyers of America (2nd Vice Chair, 1990 to 1992, Workers Compensation and Disability Section). Mr. Schaffer wishes to thank William B.D. Newton for his assistance with Ch. 7, Claims: Adjudication and Appeals Under Defense Base Act of this handbook.

Michael Thomas, Laughlin, Falbo, Levy & Moresi, LLP, San Francisco, CA. Michael Thomas received his Bachelor of Arts from SUNY at Buffalo in 1987, and his Juris Doctorate from the University of Houston in 1993. He is a Partner at Laughlin, Falbo, Levy & Moresi, where he has been in the practice of workers' compensation defense since 1997. He previously represented plaintiffs in personal injury claims. Since 2000, Mr. Thomas has primarily handled maritime issues with a particular focus on claims arising under the Longshore and Harbor Workers’ Compensation Act and its extensions. Mr. Thomas is admitted to practice before all courts in the State of California, several Federal District Courts nationally and the 5th and 9th Federal Circuit Courts of Appeal. Mr. Thomas has written a variety of articles and lectured on numerous occasions on topics related to the Longshore and Harbor Workers’ Compensation Act, as well as California workers’ compensation law. Mr. Thomas expresses his gratitude to Shana L. Prechtl, Esq., for her assistance with Ch. 6, Benefits Under Defense Base Act, of this handbook.

Detailed Table of Contents:

Chapter 1  Introduction to Defense Base Act
§ 1.01 History and Purpose of Defense Base Act
§ 1.02 Adoption of Substantive LHWCA Law
§ 1.03 Increase of Defense Base Act Claims
§ 1.04 Topics Covered in This Handbook
§ 1.05 Common Terms and Acronyms
§ 1.06 Helpful Websites and Blogs
§ 1.07 Resources for Defense Base Act Cases
§ 1.08 LexisNexis Related Publications

Chapter 2  Coverage: Categories of Work Within Defense Base Act
§ 2.01 Overview and Applicable General Principles of Statutory Construction
§ 2.02 Section 1(a)(1)-(2): Employment "At" or "Upon" Bases
§ 2.03 Section 1(a)(3)-(4): Employment "Upon" or "Under a Contract With the United States" for "Public Work"
§ 2.04 Section 1(a)(5): Contracts "Approved and Financed by the United States" Under the Foreign Assistance Act
§ 2.05 Section 1(a)(6): USO, Red Cross, Etc.
§ 2.06 Final Clause of § 1(a): Situs of Work, Nature of Contract, or Both, Are Determinative, Not Situs of Injury
§ 2.07 Exclusions

Chapter 3  Underwriting the Defense Base Act
§ 3.01 Challenges and Issues for Underwriting DBA
§ 3.02 Centralized Control of DBA Underwriting
§ 3.03 Relationship Between Claims and Underwriting Units
§ 3.04 Areas of Concern for Underwriters
§ 3.05 Security Contractors
§ 3.06 Pricing Issues
§ 3.07 Waivers
§ 3.08 Adding On "If Any" Basis to Domestic Policy
§ 3.09 Premium Payments
§ 3.10 Audits
§ 3.11 Program Business
§ 3.12 Case Histories

Chapter 4 Waivers Under Defense Base Act
§ 4.01 Statutory Authorization of Waivers
§ 4.02 Application of Statutory Authorization of Waivers
§ 4.03 Steps to Obtain a Waiver
§ 4.04 Termination of Waivers
§ 4.05 Request for Waiver (Form BEC 565)

Chapter 5  The Defense Base Act Exclusivity:  Employee's Sole Remedy and Employer's Limitation on Liability
§ 5.01 Congressional Intent in Enacting DBA Exclusivity
§ 5.02 Statutory Mandate of DBA Exclusivity
§ 5.03 LHWCA's Exclusivity Provision
§ 5.04 Judicial Application of DBA Exclusivity Provision

Chapter 6  Benefits Under Defense Base Act
§ 6.01 Overview
§ 6.02 Medical Benefits
§ 6.03 Disability Benefits
§ 6.04 Vocational Rehabilitation
§ 6.05 Death Benefits

Chapter 7  Claims: Adjudication and Appeals Under Defense Base Act
§ 7.01 Relevant Statutory Provisions
§ 7.02 Venue
§ 7.03  Proceeding Before District Office and Director
§ 7.04  Proceeding Before Office of Administrative Law Judges
§ 7.05  Proceeding Before Benefits Review Board
§ 7.06 Appealing to Federal Courts

Chapter 8  The Discovery Quagmire: Foreign Worker Claims Under Defense Base Act
§ 8.01 Workers Covered Under Defense Base Act
§ 8.02 Employer's Duty to Report Upon Notice of Injury
§ 8.03 Filing of Claim
§ 8.04 Investigation of Claim
§ 8.05 Compensation Payments
§ 8.06 Medical Benefits
§ 8.08 Death Benefits
§ 8.09 Litigation of Claim
§ 8.10 Pursuing Claims Against Foreign Corporations Without Coverage

Chapter 9  Average Weekly Wage in Defense Base Act Cases
§ 9.01 Traditional Notions of Calculating Average Weekly Wage
§ 9.02 Unique Circumstances in Defense Base Act Cases
§ 9.03 Calculation of Average Weekly Wage Under Defense Base Act

Chapter 10  The Zone of Special Danger: Judicial Doctrine Expands Scope of Compensability Under Defense Base Act
§ 10.01 Compensable and Covered Claims Under Defense Base Act
§ 10.02 Creation of Zone of Special Danger Doctrine
§ 10.03 Expansion of Zone of Special Danger Doctrine: Reasonable Recreation
§ 10.04 Unreasonable Activities: Kirkland and Gillespie
§ 10.05 Identifiable Special Dangers Presented by Work Locale

Chapter 11  Commutations, Death Benefits, and Settlements Under Defense Base Act: "Vive La Difference" for Foreign Workers
§ 11.01  Commutation of Benefits
§ 11.02 Death Benefits
§ 11.03 Settlement of Claim

Chapter 12  The War Hazards Compensation Act: "Kissing Cousin" to Defense Base Act
§ 12.01 Background and Purpose of WHCA
§ 12.02 Coverage Under WHCA
§ 12.03 What Is a War Risk Hazard?
§ 12.04 Benefits and Administration of WHCA
§ 12.05 Process for Reimbursement and Future Payments
§ 12.06 Detention Claims
§ 12.07 Necessary Elements for "Detention"
§ 12.08 Time for Filing for Detention Benefits
§ 12.09 Duration of Detention Benefits
§ 12.10 Consequences of Receiving Detention Benefits
§ 12.11 Process for Detention or Death Benefits

Appendix--DBA and WHCA Statutes

Index