American employers working oversee as contractors to the United States Government must purchase a special kind of workers compensation insurance coverage known as the Defense Base Act (DBA). The DBA is a part of the Longshore and Harbor Workers Compensation Act administered by the U. S. Department of Labor. The DBA is designed to protect civilian employees working outside of the United States.
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It is required for all:
1. Contractors on military bases or reservations
2. Americans working on non-military projects such as roads, schools, harbors and dams if they are doing so for any agency of the United States government
3. Any employee engaged in public works or a military contract with a foreign government which has been deemed necessary to the U.S. National Security.
4. Anyone providing services funded by the U.S. Government outside of the realm of regular military issue or channels
5. Any subcontractor involved in a contract with any of the above (WCxKit)
The wars in Afghanistan and Iraq have resulted in numerous contractors both multinational companies and small employers obtaining government contracts to provide services to the military. One of the services the United States government has contracted out is the disposable of waste. Neither Afghanistan nor Iraq has ready available incinerators. The solution to this by the contractors in both countries has been to dig huge pits and burn the waste. These open burn pits have created a bonanza for plaintiff attorneys in the United States because of the health problems the burn pits create.
The reason the open burn pits have created a serious health problem is the type of waste that was being burned including:
1. Plastics
2. Pesticides
3. Asbestos insulation
4. Tires
5. Hydraulic fluids
6. Biohazard materials
7. Chemicals
8. Paints
9. Solvents
10. Petroleum based products
11. Polyvinyl chloride pipes
12. Styrofoam
13. Medical waste
The smoke, air borne ash, dust and fumes from the open burn pits contain harmful toxins which result in a litany of medical conditions including, but not limited to:
1. Cancer of the lungs, skin, bone, brain
2. Leukemia
3. Pulmonary injuries
4. Heart conditions
5. Skin infections
6. Chronic bronchitis
7. Asthma
8. Chronic cough
9. Breathing restrictions
10. Nose bleeds
11. Throat infections
12. Lesions
13. Vomiting
The burn pits released many toxins including both sodium dichromate and hexavalent chromium which can have devastating results when humans are exposed to them.
The burn pits have created two types of claims that are being aggressively pursued by the attorneys. The employees of the contractors are pursuing workers compensation claims. The active duty members of the military and veterans of the wars in Afghanistan and Iraq can not pursue workers’ compensation claims, but they can pursue third party liability claims against the contractors who operated the burn pits.
The major contractors who are on the receiving end of the workers compensation claims and third party liability claims include Halliburton; KBR Inc., Kellogg, Brown & Root Services, Inc., and Kellogg, Brown & Root, LLC. There are numerous other small contractors who have also received DBA work comp claims, but the multinational large employers are the target defendants being pursued by the plaintiff attorneys. Many of the plaintiff attorneys are running television commercials in Houston (where Halliburton and KBR are located) and other cities near military bases that have deployed troops to Afghanistan and Iraq soliciting both work comp claims from the employees of the civilian contractors and liability claims from the members of the military. AIG is the workers compensation insurer for most employers with DBA coverage.
Per one congressional study, there were at one time at least 84 burn pits in Afghanistan and Iraq. Due to the potential health issues from the burn pits, the American Lung Association got involved and issued a strong recommendation to discontinue the use of burn pits in Afghanistan and Iraq. As a result of the health issues the burn pits were creating, the National Defense Authorization Act of 2009 requires the military to look for alternative means of waste disposal. The National Defense Authorization Act also requires the Department of Defense to determine the effects of the burn pits on the troops. The plaintiff attorneys and their clients got a boost on October 15, 2010, when the U.S. Government Accountability Office reported on four burn pits it surveyed in Iraq that they were not being operated per the standards outlined in the National Defense Authorization Act of 2009.
As all of the medical conditions noted above can be the result of many causes beside burn pits, it is expected that most, if not all of the work comp claims and liability claims from the burn pits will be disputed. That does not stop the plaintiff lawyers from pursuing more clients with the suggestions that contractor employees, military members and veterans of Afghanistan and Iraq should pursue damages for “fear of future disease”, “emotional distress”, “medical monitoring” and actual physical injuries.
It should be noted that the insurers of employers of civilian contractors who were not among the companies operating the burn pits, but who have received workers’ compensation claims from employees who were exposed to the smoke and fumes of the burn pits, can pursue subrogation claims against the burn pit operators. (WCxKit)
It will be interesting to see how the burn pit claims play out over the next few years. At this point it is too early to tell if the burn pits will turn into gold mines for the plaintiff attorneys or if the burn pits claims will be limited to a few hundred claims that do not pay for all the advertising the plaintiff attorneys have done.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. RShafer@ReduceYourWorkersComp.com
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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