OVERSEAS EMPLOYMENT INJURIES: A ROLE FOR MAINE LAWYERS

By: Charles W. March, Esq. and Howard T. Reben, Esq.

Charles W. March and Howard T. Reben represent employees in wrongful termination, retaliation, sexual harassment and discrimination, workers' compensation, employee benefits, and personal injury matters.

Howard T. Reben has litigated employment, civil rights, and personal injury cases in Maine since 1970. His practice also includes arbitration and mediation of employment disputes.

The violence in Iraq and Afghanistan involves not only soldiers, "enemy combatants," and local civilians but also thousands of civilian contract employees or "subcontractors," as their employers would sometimes have it. Generally speaking, there are two types of contractors in war zones: (1) contractors supporting the deployed forces, and (2) contractors engaged in reconstruction or humanitarian aid projects. This article concerns the former, contract employees working alongside soldiers in the war zones. These men and women are subject to serious, violent injuries. Over the past decade the growth in private contractors performing private security, skilled weapons systems support, construction, food services, transportation services, and translation services has grown into what has been called a fourth branch of government. On February 4, 2007 the New York Times reported that last year's spending on federal contractors had soared to $400 billion from $207 billion in 2000. Skilled workers are hired for war zone assignments as contract employees by Maine based Worldwide Language Resources and large employers such as Halliburton, Bechtel, Blackwater USA and many other security companies. Hundreds of civilian contract workers have been killed in war-related deaths and thousands more seriously injured in both major theaters. In March 2004, four men working as security personnel for Blackwater Security, a private security company, were, as their lawsuit later asserted, "shot, beaten, burned, tortured and dismembered" near the center of Fallujah, Iraq, a hotbed of Sunni resistance. The incident led to the killing of over 1,000 persons in the U.S. troops' siege of Fallujah. Iraq is today's "wild west" -

not just in terms of violence but also as to under-regulated conduct by federal contractors. The Army Field Manual provides some flexible guidelines for contractors. The Defense Federal Acquisition Regulation Supplement ("DFARS") provides more comprehensive regulatory guidance. But private contractor war support is now under Congressional scrutiny for its lack of regulation and oversight. Contractors are sometimes derelict in providing safety to their own personnel, military personnel, or Iraqi civilians. Contracting companies may cut corners and costs on armor and equipment, deploy poorly trained personnel, and even allow their employees to engage in flagrantly unsafe practices that put fellow workers and active duty soldiers at risk. This article will discuss the workers' compensation coverage and civil liability theories for seeking larger damages for injuries in the war theaters.

Workers Compensation for the Injured Federal Contract Employee

The first and potentially quickest remedy for the traumatically injured contract worker overseas is a workers compensation action. Employees working for federal contractors on military bases outside the U.S. are covered by the Defense Base Act (DBA) for worker's compensation claims. The DBA amended the federal Longshore and Harbor Workers Compensation Act (LHWCA) to provide uniformity and "certainty in availability of compensation" for injured workers on military bases outside the United States. The DBA provides that the LHWCA controls the benefit scheme and administrative enforcement procedures for all such injured workers. Enforcement is through the U.S. Department of Labor, Office of Workers Compensation Programs (OWCP), just as it is for injured longshore or shipyard employees. Federal contractors working overseas are obligated to insure their employees and subcontractors for DBA coverage.

Counsel for federal employees and contract workers must become familiar with the LHWCA's complex procedures and the benefits due an injured worker. An employee injured in covered employment under the Defense Base Act/LHWCA must give notice, (and should file a written Notice of Injury), to the employer within thirty days. A written claim for compensation must be filed with a Department of Labor, OWCP office near the employee's home or the employer's offices, within one year from the date of injury or death, or the date of the last payment of compensation for the injury. In a Longshore claim, disability for wage loss compensation is defined as an inability to earn pre-injury wages. The benefit is based on 66⅔ percent of the employee's pre-injury average weekly wage. The weekly maximum and minimum benefit amounts are adjusted annually on October 1 based on the national average weekly wage. As of October 1 2006, the minimum weekly compensation benefit is $278.61 and the maximum weekly compensation benefit is $1,114.44. Permanent total disability benefits and death benefits may allow for annual inflation adjustments. Temporary permanent or partial benefits are paid while there is an earnings loss. A worker may eventually get an order from an ALJ that he she is entitled to permanent total or partial disability benefits. Total disability benefits have no durational time limit. For the partially disabled worker, LHWCA provides for "permanent partial disability payments" that are intended to compensate the injured employee for the permanent loss of a body part or bodily function. The compensation for such a loss is based on a schedule which assigns a certain number of weeks of compensation for the injured employee for the compensable loss. Thus, even severe injuries to a limb, resulting in a lifetime of lost earning capacity, may be time limited as to weekly wage loss benefits. Certain injuries, such as injuries to the spine or to the head, are not covered by this schedule, and benefits for either partial or total disability for serious injuries to these body parts may be paid for the entire duration of an employee's earning incapacity. A surviving spouse may receive benefits paid at 50 percent of the employee's average weekly wage, either for the lifetime of the spouse or until he or she remarries. If dependent children also survive the employee, additional compensation may be paid to the family to bring the death benefits up to a maximum of two-thirds of the employee's average weekly wage. Workers covered under the LHWCA are entitled to reasonable and necessary medical treatment, supplies and services related to the injury, and reimbursement of travel costs related to this treatment. A covered individual has a right to a physician of his or her choice. An injured employee who is covered under this Act may also be eligible for vocational rehabilitation services. Attorney fees and costs are the responsibility of the employer under the LHWCA compensation scheme. Fees and costs must be approved by the OWCP after benefits are collected for the covered employee.

TORT ACTIONS FOR COMBAT-RELATED INJURIES.

Severely injured workers and their advocates may find that the benefits of the DBA/LHWCA system do not adequately compensate the injured worker for a lifetime of wage loss, medical bills, and other damages available in a civil tort action. This raises several interesting issues, some of which are unique to the overseas combat situation. First the worker may have to overcome the exclusivity provision in the DBA/LHWCA. He then faces defenses that are somewhat unusual for lawyers unaccustomed to injuries suffered in combat theaters. The developing law is interesting.

Exclusivity of Defense Base Act.

A federal contractor who has paid for DBA coverage for all workers or subcontractors will resist civil suit for tort damages brought by the injured person asserting the familiar "exclusivity" defense posed by the workers compensation employer. Like most workers compensation statutes, the DBA/LHWCA statutes are meant to be the exclusive remedy for injured workers. As with the Maine Workers Compensation Act, if the employer fails to secure compensation for the employee, suit may be brought for the injuries. For federal contractors who have DBA coverage, an exception to DBA exclusivity applies where the employer acted with the specific intent to injure the employee. In Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D. Me. 1981), a case involving the LHWCA, Chief Judge Gignoux stated that only in a case of specific intent to injure the employee, there a victim of asbestos-related disease, would the employee be allowed to sue his employer civilly outside the exclusive remedy of the LHWCA. The case states the rule that even willful, wanton or reckless behavior by a federal contractor will not provide the injured worker any reprieve from filing with the OWCP for Longshore benefits for his injuries. The employee seeking a route around this broad exclusivity provision has two choices. He may either seek to establish a specific intent to injure on the part of the employer or establish that he is a subcontractor himself, not a DBA employee. The families of the Blackwater Security personnel, ambushed and killed in Fallujah, Iraq have filed a noteworthy and bold civil action using one of these principles.

Specifically, using Blackwater's contracts and "subcontractor agreements" between the company and the four men killed in Fallujah, the decedents' families, filed suit in a North Carolina Superior Court alleging that Blackwater breached its promises to the four subcontractors leading directly to their violent deaths. The complaint, filed in January 2005, refers to the decedent workers as "security contractors" and steers a course towards tort damages and punitive damages, a course that avoids the DBA entirely. The complaint alleges that the security mission into downtown Fallujah to which they were assigned violated Blackwater's own contractual promises to the men in that - their team had four not the promised six members, their vehicle was not armored, and they did not have the promised two armored vehicles each providing a driver, a navigator, and a rear gunner with a heavy automatic weapon such as a "SAW Mach 46" which can fire up to 850 rounds per minute allowing the gunner to fight off rear attacks. The complaint does not even allege that Blackwater intended the ambush and deaths in order to avoid DBA exclusivity. It simply adopts the subcontractor decedents' status as, well, as subcontractors, a status given them by the Blackwater contracts. Not surprisingly, Blackwater Security, in an effort to remove the case to federal court, cited the DBA and the exclusivity of the LHWCA remedy provided these security men as grounds for removal of the case. The district court rejected this and other grounds for removal and remanded the case back to the state court.

In a very interesting discussion, the Nordan district court found that the "exclusive comprehensive scheme set out by the DBA for compensation claims" does not mean that the DBA completely preempts state law claims. The sine qua non of complete preemption, sufficient to support removal of the case to federal court on preemption grounds, is a pre-existing federal cause of action that can be brought directly in the federal court, stated the court. A DBA case must be brought initially, not to the federal court, but to the OWCP where all questions of employee coverage under the DBA must be answered first. The federal courts may hear appeals on the issue of coverage and other DBA case appellate issues, but may not try those issues, the court reasoned. Similarly, the court disposed of Blackwater's argument that a suit for injury damages by federal contractor employees posed a "unique federal interest." The court rejected this basis for removal, by stating that the assertion assumed the very issue that the district court lacked jurisdiction to decide, namely whether the decedents were employees rather than contractors as plead in the well-pleaded complaint. Blackwater's appeal to the Fourth Circuit was denied and a petition for certiorari to the U.S., Supreme Court was denied on February 26, 2007. The decision implies that the N.C. state trial court cannot resolve the DBA coverage issue, whether the workers were employees or not, any more than the federal court could.

While the Nordan case demonstrates the plaintiffs' use of the "subcontractor" status to their advantage in order to secure jury damages and punitive damages for wrongful death, other claimants have an incentive to overcome a defense to their claims based on their subcontractor status. An interesting Maine case provides an example of this and an analysis of the applicable law. Tanja Gavrilovic, a linguist with experience in management, was hired by Worldwide Translation of Rumford, Maine in 2002 to manage linguists supporting U.S. forces in Afghanistan. She was hired under an "Independent Subcontractor Agreement" at some $5,375 per month. While in Afghanistan, Gavrilovic was subjected to unlawful sexual harassment and unlawful retaliation for bringing a charge of discrimination against her employer, was defamed by her employer, Worldwide, and suffered contractual damages related to health care. She alleged, inter alia , violations of the Maine Human Rights Act, 5 M.R.S.A. Section 4572, and filed the case in the state Superior Court. Had Gavrilovic been deemed an independent contractor, she would not have been protected under the Maine Human Rights Act or Title VII of the federal Civil Rights Act. The case was removed to the U.S. District Court and tried without a jury. In July, 2006, in a lengthy opinion in Gavrilovic v. Worldwide Language Services , Judge Hornby held that Gavrilovic had indeed been subject to unlawful sexual harassment and retaliation by her termination of employment, under Maine and federal law, was defamed, and that she suffered a breach of contract. The court noted, in a detailed analysis, the Agreement proffered by Worldwide was not determinative of her employment status but rather the court must look to the substance of the relationship between Gavrilovic and Worldwide. This common law test of who "controls the manner and means by which the worker completes her tasks" is very similar in both the federal law articulated in Albderty-Velez v. Corporacion de Puerto Rico , and Maine law found in Lagassie v. Bangor Publishing Co.

Using this control test, the court found that Gavrilovic was indeed an employee rather than a contractor and thereby protected by the Maine Human Rights Act and Title VII of the Civil Rights Act.

An Employer's Specific Intent to Injure?

Attempts by workers to avoid the DBA's exclusivity provision have had minimal success because of both the difficulty in establishing the employer's specific intent to injure as well as the defenses asserted by federal defense contractors in combat theaters. Plaintiffs have reasoned that based on the inherent violence of combat, and given the predictable ferocity of insurgents in some neighborhoods, certain combat related missions might give rise to a finding of employer specific intent to injure. These facts were pled in a case against Halliburton and two wholly owned subsidiaries, Kellogg Brown & Root and Service Employees Int'l. The injured or decedent workers in the Fisher v. Halliburton case were truck drivers hired by the federal contractor for "logistical support" to the U.S. Army. The plaintiffs alleged that the dangers they would face were concealed from the workers in recruiting literature. Their complaint states that on April 9, 2004 the defendants assembled two separate truck convoys to deliver fuel to Baghdad International Airport. The plaintiff drivers' were in military-style camouflage tanker trucks with no armored plating and were told to drive their convoy in a different route from that taken by the other convoy. The complaint alleged that the defendants "expected and intended" that their convoy would be viewed as, and attacked as, a military operation rather than a civilian fuel delivery. The plaintiff drivers were attacked by anti-American forces, six of the drivers were killed, one was missing and presumed killed, and eleven others were seriously injured. They alleged that the defendants intentionally used their convoy as a decoy convoy for the purpose of allowing the other convoy to reach its destination safely. They stated in the complaint the defendants knew and intended that their convoy would be attacked by the enemy and so the defendants intentionally placed their employees in harm's way and at substantially certain risk of serious physical injury or death. On a motion to dismiss, the court accepted the plaintiffs' allegations as true and rejected the employer's first defense of DBA exclusivity. The court also reminded the plaintiffs' of their Rule 11 obligations and that they would have to show that the defendants specifically intended for the plaintiff truck drivers to be attacked by anti American forces. This court also rejected the defense contractors' attempted use of the federal Tort Claims Act's protection as the action did not involve design defects in military equipment. The court did, however, order discovery on another defense, the "political question doctrine" defense which seeks to remove from judicial review controversies that revolve around policy choices and value determinations made by Congress and the Executive Branch.

The victory for the Fisher plaintiffs in their tort action was short lived. In 2006, the district court granted a defendant motion to dismiss the case based on the political question doctrine. The court found that the U.S. Army rather than the defendant contractors had substantial control over the deployment and protection of convoys in Iraq. Since the federal contractor's decisions were largely interwoven with Army decisions this removed the court's jurisdiction over the case under the political question doctrine. This defense has led to dismissal of several similar lawsuits against defense contractors in war zones where the workers were themselves embedded with military units and courts concluded the government was at least involved in making the decisions leading to the injuries.

CONCLUSION

Private contractors injured during combat support work deserve good legal representation and remedies in the proper forum. Defense Base Act claims provide the quickest and most likely remedy for injuries. Suits that attempt to avoid DBA exclusivity for contractor injuries have many hurdles in getting to a jury verdict. Contract workers who control their own work may avoid DBA exclusivity and seek damages against the federal contractor in civil litigation. To date, however, few have been able to avoid a motion to dismiss. Ironically, the more closely combat-related the injuries are, the more likely that defenses that protect government policymakers from judicial review will prevail leading to dismissal of actions against private federal defense contractors.