|- Employment Law Guide A Companion to the FirstStep Employment Law Advisor|
Health Benefits, Retirement Standards, and Workers’ Compensation: Defense Base Compensation
Updated: September 2009
Who is Covered
The Defense Base Act (DBA) is a workers’ compensation program administered by the Office of Workers’ Compensation Programs (OWCP). The Act is an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) and provides for compensation and medical care to employees disabled from injuries that occur while working under federal contracts on military bases, occupied territories, and certain other overseas locations. The Act also provides benefits to specific survivors and dependents if the injury causes the employee's death. The term "injury" includes occupational disease arising out of employment.
The Act covers workers employed in most occupations and under most federal contracts, including any subcontractor or subordinate contract, except where waived by the U.S. Department of Labor. The Department agrees to waive the application of the DBA only where a local alternative workers’ compensation program applies.
Covered disabled employees receive compensation at the rate of 66 2/3 percent of the employee’s average weekly wage, subject to specified weekly maximum rates, for as long as the effects of the injury continue. Compensation is also available for certain permanent impairments. Benefits are paid to a surviving spouse at the rate of 50 percent of the average weekly wage, and if there are surviving children, an additional 16 2/3 percent is payable on their behalf.
If any installment of compensation payable without an award is not paid within 14 days after it becomes due, an additional 10 percent may be added to the unpaid installment. OWCP may excuse the employer’s failure to pay timely if the employer contacts OWCP and demonstrates that payment could not be made within the prescribed time period due to conditions beyond the employer’s control, especially in the case of foreign claims due to uncontrollable circumstances of communications, distance, access to remote locations, and war zone conditions. If any compensation payable under an award is not paid within 10 days after it becomes due, an additional 20 percent may be added to the unpaid installment.
Current benefit levels can be found at OWCP’s National Average Weekly Wages Web page(http://www.dol.gov/owcp/dlhwc/nawwinfo.htm).
Injured employees are also entitled to have their employer pay for all reasonable and related medical expenses.
Insurance and Self-Insurance
Employers of covered employees are required to secure the payment of compensation and medical benefits. Employers may do so in one of two ways. They must either purchase insurance from a commercial insurance carrier that the Department of Labor has authorized to provide DBA insurance or obtain the Department of Labor’s authorization to self-insure. Except for special circumstances in which a Special Fund administered by the Department of Labor pays benefits, authorized insurance carriers and self-insured employers pay all benefits to claimants under the DBA. When an employer obtains insurance through an insurance carrier, the employer’s obligation to pay monetary benefits and provide medical benefits is equally the obligation of the insurance carrier.
The employer or insurance carrier must pay compensation payments periodically, promptly and directly to the person entitled to benefits under the Act. Ongoing benefit payments to foreign workers may be subject to commutation at the insurer’s option.
An employer may not discharge or in any manner discriminate against an employee because he or she has claimed or attempted to claim compensation, or has participated in a proceeding under this Act. This prohibition does not prevent discharge of or refusal to employ a person who has been found to have filed a fraudulent claim for compensation or who has otherwise made a false statement or misrepresentation.
Any party to a claim has a right to challenge the status quo with respect to any matter. The OWCP provides mediation services in which it seeks to informally resolve disagreements. The OWCP makes every effort to provide such services to overseas claimants, subject to the restrictions imposed by communications, distance, and access to remote locations. After an informal conference, OWCP makes a recommendation to the parties. If an employee or his or her survivor(s), or an employer or insurance carrier, disagrees with OWCP’s recommendation, a formal hearing may be requested before an Administrative Law Judge. The Administrative Law Judge's decision may in turn be reviewed by the Benefits Review Board. An appeal of the Benefits Review Board's decision may be taken to the U.S. Court of Appeals and finally to the U.S. Supreme Court.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Poster. There is no federal DOL poster requirement.
Notices. The DBA, as an extension of the Longshore Act, imposes a notice requirement, although the nature of overseas employment, especially in war zones, makes this impractical in some circumstances. Workers are advised to talk with their employers about the workers’ compensation protections provided. An employer is required to post printed notices when practical, in a form prescribed by the Department, to advise employees what to do when they are injured at work. At a minimum, employees must be instructed who to notify in case of injury. Notices must be posted in a conspicuous place or places at each worksite. In the notice, the employer must: 1) designate by name (or title), location and phone number of the employer's official responsible for receiving all notices of injury or death from employees or survivors; and 2) state that the employer has secured its payment of compensation under the Defense Base Act. Self-insured employers use Form LS-242 and employers insured by an insurance carrier use Form LS-241. For insured employers, the notice must contain the name and address of the carrier and the date its policy expires. The Form LS-242 and LS-241 are sent to each self-insurer and carrier, when authorized. These are customized by them for each location. Contact the LHWCA national office(http://www.dol.gov/owcp/dlhwc/lscontac.htm) for additional information.
There are recordkeeping requirements for employers, self-insured employers and insurance carriers, medical providers, representative payees, and claimants under the Defense Base Act as an extension of the Longshore Act.
Employers. The Longshore Act imposes recordkeeping requirements on employers. Employers must maintain records of injuries sustained by employees for the past three years; this record includes both lost-time and no-lost-time injuries.
Self-insured employers. There are additional recordkeeping requirements for self-insured employers. Any employer authorized to self-insure its liabilities under the Act may be required to submit reports to OWCP concerning its self-insurance status. These reports may include:
OWCP may also require a self-insurer to provide information relevant to the self-insured's special fund responsibilities. The self-insurer is expected to maintain accounting books, records or other papers that would verify financial statements or other required reports. At the request of OWCP, the self-insurer must produce such material for inspection or examination. The failure to permit inspection may result in revocation of the employer’s authority to self-insure.
Insurance Carriers. The Longshore Act imposes some recordkeeping requirements on insurance carriers authorized to issue policies covering Defense Base Act liabilities. These requirements are similar to those imposed upon self-insured employers. Required reports may include:
OWCP may also require a carrier to provide information relevant to the carrier's special fund responsibilities. The carrier is expected to maintain accounting books, records, or other papers that would verify financial statement or other information contained in these reports. At the request of OWCP, the carrier must produce such material for inspection or examination. The failure to permit inspection may result in revocation of the carrier’s authorization to write Defense Base Act insurance.
There are reporting requirements for employers, self-insured employers, insurance carriers, claimants, and medical providers.
Employers. The Longshore Act imposes numerous reporting obligations on employers. The carrier may make these reports on behalf of the insured employer.
Employers must file, with the OWCP district director, an original and one copy of an Employer’s First Report of Injury or Occupational Illness within 10 days of an employee’s work-related injury or death, or within 10 days of when the employer had knowledge of the injury or death. Injuries include occupational diseases or infections arising naturally from employment or as a result of an accidental injury. This reporting requirement applies to any injury that causes loss of one or more shifts of work, or death. Employers use Form LS-202(http://www.dol.gov/owcp/dlhwc/ls-202.pdf) to report this information.
The employer need not file a first report of injury unless the injury causes the employee to lose one or more shifts from work. However, the employer must keep records containing the following information:
Every employer shall maintain adequate records of injuries sustained by employees, including information on the disease, other impairments or disabilities, or death relating to the injury. Employers must make such records available for inspection by OWCP or by any state authority, and they should retain records for three years after the date of injury.
The employer must also file with OWCP an Employer’s Supplementary Report of Accident or Occupational Illness where its first report did not include the date the injured employee returned to work, or the injured employee returned to work but later became disabled for work. Employers use Form LS-210(http://www.dol.gov/owcp/dlhwc/ls-210.pdf) to report this additional information.
In addition to reporting injuries, the Longshore Act requires employers to report payments of compensation to the district director, OWCP. These reports must be made when the employer makes its first voluntary compensation payment and when the employer suspends compensation payments for any reason. Employers use Form LS-206(http://www.dol.gov/owcp/dlhwc/ls-206.pdf) and Form LS-208(http://www.dol.gov/owcp/dlhwc/ls-208.pdf) to report this payment information. In addition, within 16 days after making the final compensation payment to an employee or other claimant, the employer must report the final payment to OWCP, the total amount of compensation paid, and other information about the claim. Employers use Form LS-208(http://www.dol.gov/owcp/dlhwc/ls-208.pdf) to report this information.
If an employer declines to voluntarily pay compensation or otherwise disputes compensation claimed, it must file with the district director, OWCP, a Notice of Controversion of Right to Compensation within 14 days of when the employer learned of the injury or death. Employers use Form LS-207(http://www.dol.gov/owcp/dlhwc/ls-207.pdf) for this purpose. Failure to file a timely controversion may lead to additional compensation liability.
Self-insured employers. There are additional reporting requirements for self-insured employers.
An employer authorized to self-insure must annually file with OWCP two separate reports summarizing its aggregate Defense Base Act liabilities. The first, called a Report of Payments, details the total amount of benefits the self-insurer paid during the preceding year. Self-insurers use Form LS-513, which is mailed by OWCP to each self-insurer each year, to report this information. The second, called a Report of Injury Experience, provides details about all open claims against the self-insurer and the self-insurer’s estimated future payment liability on those claims. Self-insurers use Form LS-274(http://www.dol.gov/owcp/dlhwc/ls-274.pdf) to report this information. In addition, a self-insurer must submit any report that OWCP might request, such as, for example, a report addressing the self-insurer's financial condition. The failure to submit any requested report could result in revocation of the employer’s authority to self-insure.
Insurance Carriers. The Longshore Act imposes numerous reporting obligations on insurers.
Like a self-insured employer, an authorized insurance carrier must submit any report that OWCP might request, such as, for example, a report addressing the carrier’s financial condition or listing information pertaining to the carrier's special fund liabilities. The failure to submit any requested report could result in revocation of the carrier’s authority to write insurance under the Defense Base Act.
An insurance carrier must report to OWCP each contract of insurance it issues (or renews) to cover an employer’s liabilities under the Longshore Act or its extensions. The reports must be sent by the carrier's home office, except that the carrier may authorize its agency or agencies to make such reports. Separate reports are required for each employer covered by a particular policy that is issued or renewed. Notice of cancellation must be given 30 days prior to the date the cancellation is to take effect. Carriers use Form LS-570 (called a Card Report of Insurance) to report this information. Contact the OWCP national office(http://www.dol.gov/owcp/dlhwc/lscontac.htm) for additional information.
In addition, a carrier must annually file with OWCP two separate reports summarizing its aggregate Defense Base Act liabilities. The first, called a Report of Payments, details the total amount of benefits the carrier paid during the preceding year. Carriers use Form LS-513, which is mailed by OWCP to each carrier each year, to report this information. The second report, called a Report of Injury Experience, provides details about all open claims against the carrier and the carrier’s estimated future payment liability on those claims. Carriers use Form LS-274(http://www.dol.gov/owcp/dlhwc/ls-274.pdf) to report this information. Contact the OWCP national office(http://www.dol.gov/owcp/dlhwc/lscontac.htm) for any additional information.
Claimants. The Longshore Act and its extensions impose several reporting obligations on benefits claimants. A claimant must file with the employer (and may also file with the district director, OWCP) a written Notice of Employee’s Injury or Death describing the causes and effects of the injury. The time frame for filing this notice varies depending on the nature of the injury. Claimants use Form LS-201(http://www.dol.gov/owcp/dlhwc/ls-201.pdf) to report this information. A claimant must file with the District Director a written notice of a claim. Claimants use Form LS-203(http://www.dol.gov/owcp/dlhwc/ls-203.pdf) to report this information. The time frame for filing this notice varies depending on the nature of the claim. The nature of injuries arising overseas under conditions found in war zones may make these reporting requirements impractical, in which case verbal notification to the employer, followed up as soon as possible by written confirmation, is sufficient to file a claim.
Upon the request of the employer, insurance carrier, or the Department of Labor, employees receiving compensation must file a Report of Earnings. This report lists any employment earnings the employee has received during the period specified in the request and must be filed within thirty days of when the employee receives the request. Employees use Form LS-200(http://www.dol.gov/owcp/dlhwc/ls-200.pdf) to report this information. An employee who does not complete and file this report could forfeit compensation payments.
Medical Providers. Physicians who provide care for an injured employee are required, within 10 days of the first medical or surgical treatment, to provide a report of the injury or treatment to the employer and the district director. Physicians use Form LS-1(http://www.dol.gov/owcp/dlhwc/ls-1.pdf) to report this information. In addition, a medical provider may be required to submit additional reports concerning the necessity, character, and sufficiency of medical care provided to the employee. Physicians use Form LS-204(http://www.dol.gov/owcp/dlhwc/ls-204.pdf) to report this information. The failure to provide any requested report may result in revocation of authorization to treat the employee and the denial of payment for medical services rendered. The timeline obligations for medical reporting may be negated by the practicality of treatments provided overseas in foreign medical care facilities. The insurer or self-insured employer will pursue the needed medical reports.
OWCP may suspend or revoke the authorization of any insurer or self-insurer. Failure by an insurer or a self-insurer to comply with any provision or requirement of law or regulations, failure or insolvency of the surety on his or her indemnity bond, or impairment of financial responsibility are deemed good causes for suspension or revocation.
Any employer who fails to secure coverage by authorized insurance carriers or by becoming an authorized self-insurer is subject, upon conviction, to a fine of not more than $10,000, or by imprisonment for not more than one year, or both.
Failure to file an Employer’s Supplementary Report of Accident or Occupational Illness to provide additional information not contained in the employer’s first report, can result in imposition of a civil penalty up to $11,000 and loss of legal defenses. In addition to reporting injuries, failure to file a final report regarding payments of compensation can lead to monetary penalties.
Any employer who discriminates against an employee may be subject to a penalty of not less than $1,000 or more than $5,000, and may be required to restore that employee to his or her employment along with all wages lost due to the discrimination unless that employee is no longer qualified to perform the duties of the employment.
Relation to State, Local, Foreign and Other Federal Laws
Benefits may be received concurrently under state, foreign and federal workers’ compensation systems but any amounts paid for the same injury, disability or death are offset against benefits paid under the Defense Base Act.
Compliance Assistance Available
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Longshore and Harbor Workers’ Compensation Act. Among the many resources are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-lhwca.htm) Web page.
Office of Workers' Compensation Programs (OWCP),
Division of Longshore
and Harbor Workers' Compensation (DLHWC)(http://www.dol.gov/owcp/dlhwc/index.htm)