This past Friday, June 6th marked the 70th anniversary of the D-Day landings. Justifiably, the focus of attention was on the hundreds of thousands of service personnel who participated. What is rarely discussed are the hundreds of thousands of civilian employees participating in or near the combat areas and sustaining many casualties resulting in death or injury.
Civilian Casualties Were Not Considered Compensable Prior to Defense Based Act
Prior to, and in the early days of, WWII, civilian casualties during war, or by terrorists were not considered compensable as workplace injuries because of the exclusion from insurance contracts for acts of the “common enemy”. That was, in the US, largely rectified by the Defense Base Act, enacted on 8/16/41, which gave broad federal workers comp coverage to workers, overseas and otherwise, who were working under a defense contract. That would also include Red Cross workers and USO entertainers (think Bob Hope and his troupe).
Higher Percentage of Civilian Merchant Marines Killed Than Marine Corps
The Merchant Marine, however, fell through the cracks. Although a greater percentage of mariners were killed than those in the Marine Corps (3.9% and 2.94%, respectively) the merchant mariners were not given veteran status until 1988. Since they were paid civilian wages, far higher than the military, and had the right to refuse a voyage that they considered too dangerous, they were considered “civilians”. But the Jones Act, under which they were covered, was only for negligence on the part of the ship owners and the Defense Base Act did not cover them.
Civilians could also be found serving in unlikely places. One of the aircraft carriers in the Battle of Midway had to be sent while its repairs were not yet completed from the Battle of the Coral Sea. As a result, civilian workers were kept aboard and were still completing repairs as the ship sailed into battle.
Red Cross workers do not appear to have been disembarked during D-Day but they were surely aboard the ships already at sea for the follow up landings.
Reading work comp court decisions during and after WWII, one is struck by the nearly complete silence on the war, almost as if it hadn’t happened. That can be due to the fact that injuries in the combat zone had few ways in which they could NOT be compensable and therefore didn’t make it into court decisions. In addition, there was a war-time culture that simply would not deny a trivial compensation claim in an environment of extreme sacrifice being the common experience.
Courts Should Not Be Blind To What Is Obvious To All
For this author, the Defense Base Act was his first comp appeal victory, while still a law student. The plaintiff was driven into extreme stress reactions, physical and mental, while serving as the construction foreman in the desert in the Horn of Africa in 1970. Every night, bandits raided his base, stealing the supplies. The work was supervised by the US Army Corps of Engineers but the contract was issued as a foreign aid agricultural assistance program. The base was a listening post for oil tankers entering and leaving the Red Sea.
The court agreed with the law student and quoted Justice Oliver Wendell Holmes that “Courts should not be blind to what is obvious to all.”
To all those in the landings of June 6, 1944…………THANKS!!
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. firstname.lastname@example.org
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