Merrigan Legal

Defense Base Act (“DBA”)

42 U.S.C. §§ 1651–54

The Defense Base Act (also known as the “DBA”) is an extension of the Longshore and Harbor Workers’ Compensation Act (the “LHWCA” or the “Longshore Act”). During World War II, the United States increased the number of civilian contractors working abroad. Congress recognized a need to cover any such injured workers through workers’ compensation. Rather than develop an entirely new act, Congress chose to expand the already-existing Longshore Act. This means that the Longshore Act—through the Defense Base Act—may cover a truck driver in Iraq, a translator in Afghanistan, a researcher at the McMurdo Station in Antarctica, a USAID worker in Somalia, or an electrician working on the American embassy in Bangkok.

Broadly speaking, the Defense Base Act applies to civilians who are injured on a contract to perform public works or national defense services outside of the United States (often even if that injury is during or before deployment, such as while training stateside or on a flight). With some exceptions, it includes injuries during embassy construction projects. It also generally covers civilian employees who are injured on U.S. military bases abroad. The DBA is not limited to American citizens. If a company hires local nationals or third-country nationals, they are usually also covered.

The DBA covers more than just visible physical injuries. Like the Longshore Act, the DBA applies to both traumatic injuries and to occupational diseases that have the requisite causal link to employment. This includes, for example, psychiatric injuries such as posttraumatic stress disorder (“PTSD”), generalized anxiety disorder, and major depressive disorder. It also includes many respiratory and pulmonary conditions, such as chronic obstructive pulmonary disease (“COPD”) and reactive airway dysfunction syndrome (“RADS”). An unfortunately common, but often covered, DBA condition is traumatic brain injury (“TBI”). Hearing loss is also often covered.

A significant distinction between Longshore Act claims and DBA claims is that DBA claims benefit from a doctrine called the Zone of Special Danger. This doctrine expands coverage beyond the obvious boundaries of work, even covering many injuries during off-hours or rest and relaxation. This has included injuries suffered during recreation, such as golf, fishing, swimming, and boating. It even covered an injury caused by intoxicated horseplay at a bar in the Marshall Islands. Despite the Zone of Special Danger’s reference to “danger,” courts have also held that it includes mundane situations such as a car accident while heading out to go grocery shopping, slipping while stepping out of a shower, and being hit by lightning while walking to the DEFAC for a meal. See Fleishman, Lewis and Lara Merrigan, “The Zone of Special Danger: When a Claim Arises in the Course and Scope of Employment Under the Longshore Act and Its Extensions,” The Longshore Textbook (Steven M. Birnbaum & Ralph R. Lorberbaum eds., 7th Ed., 2017).

Although the Defense Base Act has been around since World War II, claims have spiked in recent years due to our increased reliance on contractors to support our country in Afghanistan and Iraq. Thus, from 2001 through the end of 2019, the Department of Labor saw 60,186 DBA claims filed for injuries or deaths in Iraq, 45,585 claims in Afghanistan, and 9,762 claims in Kuwait. Despite the overall reduction of our military’s operations in these countries, USCENTCOM’s October 2019 census report shows that there are still 24,202 contractors in Iraq, 7,155 in Iraq and Syria, and 18,295 in other locations within its area of responsibility.

DBA claims have dramatically increased since 2001, which means that it is a rapidly developing area of law.  As new scenarios surface, courts must re-interpret the statute, and these new interpretations can affect coverage and benefits. Defense attorneys and employers are also continually developing new strategies for reducing or denying benefits. In selecting an attorney, it is important to find one who stays up to date on new court decisions, and who has the experience to confidently guide your case through not just a mediation or a trial, but also through any necessary appeals. Ms. Merrigan has gained this experience through more than fourteen years of practice in this area of law during which she has handled hundreds of Defense Base Act cases.

If you think there is a chance you have suffered an injury covered by the Defense Base Act, please contact Merrigan Legal for a free consultation.

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