The Defense Base Act Workmans Compensation Blog

Defense Base Act Workmans Compensation insurance coverage is required for all  Contractor Employees working overseas on  US Government contracts.  The Iraq and Afghanistan war zones are included.

This compensation is extremely inadequate and puts you, your health, and your finances at the mercy of insurance companies like AIG and CNA and their lawyers.

Here we tackle unjust system that the Modern Day DBA Casualty must endure,  promote enforcement of the current DBA, and work towards changing the inequities of the DBA.

All comments made here are soley the opinion of the person commenting and not necessarily the opinion of this blog.

Thanksgiving thoughts for AIG, CNA, their claims adjusters, their lawyers and all who enable them

This Thanksgiving if you happen to be giving thanks for your home and the food on your table,  we hope you take a minute to think about the injured contractors’ lives you’ve stomped all over to get them.

Do your families know the things you do to other families for financial gain?

Judge says Halliburton must stay in convoy death case

Houston Chronicle

A Houston judge ruled today that Halliburton must remain as a defendant in a lawsuit alleging it and its former subsidiary KBR knowingly sent civilian truck convoys into dangerous conditions the day six drivers were killed in 2004 in Iraq.

U.S. District Judge Gray Miller found that Halliburton should remain in the case because plaintiffs have “numerous evidentiary examples of Halliburton’s involvement in the allegations giving rise to this litigation.”

Miller is considering a series of motions raised by the defendants to end three cases brought by injured plaintiffs and family members of the dead. The plaintiffs allege that KBR and its former parent, Halliburton, put profit above life in April 2004 when they deployed a convoy knowing about the heightened danger.

Miller previously dismissed the case, ruling that a civilian court could not second-guess military decisions. But the 5th U.S. Circuit Court of Appeals sent the case back to Miller saying it may be possible to resolve the lawsuits without making a “constitutionally impermissible review of wartime decision-making.”

Halliburton spun off KBR in 2007. Last January it stated that it was paying off its final bill for KBR when it agreed to pay about $560 million to settle a Foreign Corrupt Practice Act case involving improper payments to Nigerian officials.

Halliburton has maintained the truck convoy lawsuits are based on KBR activity in Iraq, and Halliburton will be found to have no responsibility, legal or otherwise.

Miller did toss other corporate entities out of the lawsuit. KBR Inc. stays in the case. But KBR Holdings LLC and KBR International Inc. were let out. Also dropped from the suit were Halliburton Energy Services and DII Industries.

mary.flood@chron.com

MsSparky wrote:

Civilians contractors are not soldiers.Therefore they are still responsible for the safety of their employees. KBR/Halliburton bid on and accepted Task Order 43 knowing that in their Scope of Work (SOW) it stated:
1.2 Worksite Safety. The contractor shall be responsible for safety of employees and base camp residents during all operations in accordance with Army, OSHA, and the host nation safety regulations and guidance.
Personally, I think KBR had the option to stop their drivers from participating in this convoy based on the intelligence they received.
Ms Sparky
http://mssparky.com/

11/24/2009 9:57:59 PM

“COUNTING CONTRACTORS: WHERE ARE THEY AND WHAT ARE THEY DOING?”

THE COMMISSION ON WARTIME CONTRACTING IN IRAQ & AFGHANISTAN HOLDS A HEARING ON ACCOUNTABILITY ISSUES IN IRAQ AND AFGHANISTAN, PANEL 1
NOVEMBER 2, 2009

“Counting Contractors: Where Are They and What Are They Doing?” carries the theme of accountability into three important areas of the commission’s work.

I offer this opening on behalf of Co-chair Christopher Shays and myself.

The other commissioners at the dais are Clark Kent Ervin, Grant Green, Robert Henke, Charles Tiefer, and Dov Zakheim.

There is currently one vacancy on the eight-member commission awaiting a congressional appointment.

Read the transcript here

Obama to Announce Increase of Troops for Afghanistan on Dec 1

With the associated increases of one contractor to one soldier

What a windfall for AIG and CNA

From the Huffington Post

President Barack Obama is expected to announce a “sizable” increase in US troop levels in Afghanistan early next week, tentatively during a prime-time speech on Tuesday, December 1, according to media reports.

Obama met with his war council on Monday evening to decide how many troops to send in addition to the 68,000 already deployed. According to the Associated Press, “Military officials and others said they expect Obama to settle on a middle-ground option that would deploy an eventual 32,000 to 35,000 U.S. forces to the 8-year-old conflict.” McClatchy is reporting that Obama plans to send 34,000. General Stanley McChrystal, the top US commander in the region, had been pressing for 40,000.

After Obama’s announcement next Tuesday, General McChrystal, Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the joint chiefs of staff, are expected to testify on Capitol Hill.

The president had been reluctant to make a decision without an exit strategy, a theme echoed today by Robert Gibbs. The White House press secretary told reporters that it’s “not just how we get people there, but what’s the strategy for getting them out.”

Below, an official White House photo by Pete Souza of President Obama meeting last night with his national security team to discuss Afghanistan in the Situation Room.

 

TOO BIG TO FAIL: The KBR-AIG Dream Team

Thanks to DC Bureau and Adam Lichtenheld

In late August 2003, medical testing of KBR employees at Qarmat Ali found elevated levels of total chromium in their blood. Total chromium is comprised of trivalent chromium—an essential and naturally occurring nutrient—and hexavalent chromium, the cancer-causing industrial component of sodium dichromate. In order to adequately determine if its workers were poisoned by sodium dichromate, KBR needed to separate out hexavalent chromium from the blood tests—a difficult and time-consuming process that usually requires a special laboratory.

But no such effort was even attempted. The reason, according to KBR Medical Director Robert Conte, lies in an archaic legal precedent, one that has forbidden sick KBR workers, such as Mr. Blacke and Mr. Langford, from seeking legal redress.

Under the Defense Base Act of 1941, private contractors working for the military are protected from legal liability for injuries suffered by their employees. Under the DBA, contractors transfer a work-related claim to a government insurer, which handles the claim and determines compensation. For KBR workers who became too sick to work at Qarmat Ali, this meant that their appeals for unemployment and disability benefits were turned over to American International Group, Inc, the world’s largest insurance company and the government’s handler of 90 percent of all DBA cases.

Since AIG retained full responsibility for KBR’s claims, it was at their discretion—not KBR’s—whether to follow up by ordering further blood tests. Determining the amount of hexavalent chromium in workers’ blood would have been critical to link their illnesses to the exposure at Qarmat Ali, thus making them eligible for worker’s compensation. AIG decided against it.

“When AIG picked it up, we figured they’d just follow up and do what they thought necessary at that point,” said Dr. Conte in a sworn deposition videotaped last year.

The Defense Base Act is a lucrative and low-cost deal for companies like AIG. Since the insurance giant works for the government in DBA cases, both premiums and payout claims are paid for by public funds. As a result, when AIG overcharged KBR tens of millions of dollars for DBA insurance in the first several years of the Iraq war—as the Army Audit Agency eventually discovered—U.S. taxpayers footed the bill. The findings of the audit investigation surfaced last fall, around the time that AIG was rescued from financial ruin by an $85 billion taxpayer bailout.

KBR, meanwhile, continues to use the DBA to shield it from accountability.

“KBR took the attitude…that there was nothing anyone was going to be able to do about [Qarmat Ali] because they were immune from lawsuit and/or any other accountability,” Langford said.

Original Story here

Army Suicides Hit Record and Will Likely Continue to Rise

Thursday 19 November 2009

by: Yana Kunichoff, t r u t h o u t | Report

Suicides among veterans and soldiers have reached a record high this year and are set to continue rising, Pentagon officials said.

The announcement, coming on the day that the suicide rate for 2009 reached the record number of 2008, leaves advocates worrying about the possible troop escalation President Obama is considering for Afghanistan and the measures the Army has in place to deal with the combat scars which leave no physical trace.

Gen. Peter Chiarelli, vice chief of staff of the Army, called the news “horrible,” and said during a news conference Tuesday “we are almost certainly going to end the year higher than last year.”

As of November 16, 2009, 140 soldiers on active duty have taken their own lives, with 71 soldiers not on active duty whose death has also been identified as a suicide. The suicide rate for 2008 was the worst in three decades, and in January 2009, 24 soldiers killed themselves – more than died in combat in Iraq and Afghanistan combined.

Full report here

PTSD Claim Tidal Wave at the VA

PTSD Claim Tidal Wave

A VA healthcare use report obtained by VCS using the Freedom of Information Act (FOIA) shows that of 1.1 million Iraq and Afghanistan War veterans eligible for VA medical care, approximately 134,000 were already diagnosed by VA mental health professionals with PTSD (“VA Facility Specific OIF/OEF Veterans Coded with Potential PTSD Through 2nd Qt FY 2009”).

A VA claims activity report also obtained by VCS using FOIA reveals only 58,000 of those veterans were granted service-connected disability compensation benefits by VA (“VA Benefits Activity: Veterans Deployed to the Global War on Terror, July 2009).

This means less than half (43 percent) of the veterans diagnosed by VA with PTSD receive disability benefits for PTSD.  VCS finds VA’s PTSD claim adjudication outcome absolutely unacceptable, and this salient fact is cause for immediate action by VA.

Read this in full at VCS

The DBA’s Exclusive Remedy-A License to Kill? KBR defends it’s actions

KBR is claiming that the DBA’s Exclusive Remedy excuses them from knowingly sending their employees into deadly danger.

And you know what……  legally,  IT DOES

The Exclusive Remedy was intended (Congressional Intent ?) to be a trade off to ensure the injured worker did not have to bring legal action against their employer in order to receive medical and disability benefits.  The employee would “forthwith” receive medical care and partial replacement of the their income, but they and their family members could not bring legal action against the employer, for any reason.

With absolutely no incentive to provide the safest possible working conditions, profit will usually win over the  lives put on the line.  Pleasing the customer, clearing ordnance from under the power lines asap, getting those supplies to the airport, no matter the danger, are the bottom line.

When a casualty occurs the company sends in another warm body.

On the other hand, the casualty normally has to retain an attorney and fight for their very lives  with AIG, CNA and others ( carrier/employer ) for the benefits that were intended to be their part of the trade off.

What happened to the casualties end of the trade off?

This is an ongoing injustice right in the face of Congress, the Department of Labor, the Department of Justice, the Department of State, the Department of Defense, the White House

and frankly it appears that no one gives a damn.

KBR defends its actions

The article entitled “KBR aware convoy in harm’s way” (Page A1, Thursday) does not address some of the paramount issues in the convoy cases. KBR would like to set the record straight.

The events of the April 2004 convoy attack were tragic. We remain mindful of those who lost their loved ones as they were members of the KBR family. However, the assertion that KBR deliberately placed these men in harm’s way or failed to warn of the dangers of working in Iraq is simply false. KBR takes great care in warning and in training employees about the dangers they will face working in a war zone before they depart for Iraq.

It is important to understand the framework in which KBR and other government contractors perform their work in Iraq and Afghanistan. The executive branch and Congress decided many years ago to use civilian contractors to support the military during wartime in order to save costs in peacetime and because they could not recruit enough soldiers to meet all of their logistical needs without resorting to a draft. The Defense Base Act (DBA) was established by Congress as the process to provide coverage to civilians who are injured while supporting the military during war time. Given this exclusive remedy under the DBA, in order for these lawsuits to proceed, the plaintiffs must prove that KBR specifically intended to have the insurgents injure or kill KBR’s employees on the April 2004 convoys. The evidence does not support this allegation.

The e-mails that were the basis of the article do not tell the whole story. In context, the internal communication between KBR and the military evidence the concern KBR had for its employees. Further, the U.S. military alone decided to deploy the military supply convoys at issue here; they decided when, where and how the convoys were to be conducted. These military decisions were made based on the intelligence about insurgent threats that the military compiled through its unique capabilities and resources. Under the Political Question Doctrine and other established principles of law, it is not appropriate for courts — as litigation in these cases would require — to second-guess such wartime decisions and actions by the military that are reserved by the U.S. Constitution to the elected branches of government.

The men and women who work for KBR in Iraq do so at great sacrifice to themselves and their families. It is on their behalf that we will continue to defend the company and its actions. In turn we would hope that the media and others remain mindful that a presentation by the plaintiffs’ lawyers does not accurately reflect all of the facts.

William C. Bodie, president, KBR North American Government and Defense

Woman awarded $3M in assault claim against KBR

The Associated Press

Updated

y JUAN A. LOZANO (AP) – 54 minutes ago

HOUSTON — A woman who claimed she was raped in 2005 while working in Iraq for a former Halliburton Co. subsidiary has been awarded nearly $3 million by an arbitrator to settle her case.

Tracy Barker had sued U.S. contractor KBR Inc, its former parent company Halliburton and several affiliates in May 2007, claiming she was sexually attacked by a State Department employee while working as a civilian contractor in the southern Iraqi city of Basra.

A federal judge in Houston had dismissed Barker’s lawsuit in January 2008, ruling she had to abide by an employment agreement she signed that said any claims she made against the companies would have to be settled through arbitration and not the courts.

Court records filed this week show Barker was awarded a judgment of $2.93 million to settle her arbitration claim against KBR.

The Associated Press doesn’t usually identify those who report they were sexually assaulted, but Barker made her identity public in her lawsuit.

In a statement, Houston-based KBR said Thursday it disagreed with the interim ruling from the arbitrator and it has filed a motion to modify the award.

“However, the decision validates what KBR has maintained all along; that the arbitration process is truly neutral and works in the best interest of the parties involved,” the statement said.

Barker’s attorney did not immediately return telephone calls seeking comment.

In her lawsuit, Barker had claimed while working in the companies’ procurement department in Baghdad, she was housed in mostly male barracks and consistently subjected to sexually explicit comments and verbal and physical threats of abuse. Barker claimed she and other employees complained to the companies but they did nothing and instead retaliated against her.

Barker was later transferred to Basra, where she claimed that in June 2005, she was raped in her room by the State Department employee, who she also sued. That case was transferred to federal court in Virginia, where it was formally settled last week. Details of the settlement were not made public.

U.S. District Judge Gray Miller, in dismissing the lawsuit against KBR, said that until Congress tells courts that binding contracts to arbitrate do not include sexual harassment claims, Barker’s claims had to be arbitrated.

Last month, the Senate approved a measure prohibiting the Defense Department from contracting with companies that require employees to resolve sexual assault allegations and other claims through arbitration.

The amendment was attached to a larger defense spending bill. A vote on the full bill was expected later.

In September, the 5th Circuit Court of Appeals in New Orleans ruled that a similar lawsuit filed by another ex-contract worker, Jamie Leigh Jones, could go to court in Houston instead of arbitration.

Jones filed a federal lawsuit in 2007 claiming she was raped by Halliburton and KBR firefighters while working at Camp Hope, Baghdad, in 2005.

Jones has also made her identity public in her lawsuit and her face and name have been broadcast in media reports and on her own Web site.

HOUSTON — An arbitrator has awarded a woman nearly $3 million to settle her claims that she was raped in Iraq by a State Department employee in 2005 while working for a former Halliburton Co. subsidiary.

Court records filed this week show Tracy Barker was awarded $2.93 million to settle her claim against military contractor KBR Inc.

Barker had sued Houston-based Halliburton and its former KBR subsidiary in May 2007, alleging she was sexually attacked while working as a civilian contractor in Basra, Iraq.

The Associated Press doesn’t usually identify those who report they were sexually assaulted, but Barker made her identity public in her lawsuit.

Wives of Baghdad four appeal for help

The wives of four South African men abducted on the outskirts of Baghdad, Iraq, nearly three years ago have made an emotional plea for help to President Jacob Zuma.

Speaking to the media in Pretoria today, the women cried as they spoke of their sadness and hope that they might one day find out what had happened to their husbands – whether they were dead or alive.

“As the wives, we are here to plead for help. Would someone out there please show compassion and human kindness,” said Marie Enslin, whose husband Johann was kidnapped on December 10 2006 along with Hardus Greef, Callie Scheepers and Andre Durant.

“We are sincerely appealing to our new leader Mr Jacob Zuma to assist us and our children.”

Referring to the Koran, Enslin said it read that husbands and wives were each other’s garments and in the Bible they were each other’s convents.

“Our garments and our convents have been missing for 1074 days,” she said.

The men were working for the private security operations company Safenet when they disappeared.

This Christmas would be the fourth she and their four children were without her husband, said Enslin.

“Whether dead or alive, the stress of living and missing loved ones is like a black hole in the heart. Please release them,” she appealed to the men’s captors.

“We need closure. If they are dead, God forbid, please be compassionate and hand over their remains so that we can have closure.”

Retha Scheepers echoed her fellow wives’ prayers that they needed to know what had happened to the men.

“We [my family and I] don’t know where he [Callie] is and every morning I wake up and think today is the day I’m going to get good news or bad news, and at night, nothing.

“We were married for one year and two months, I haven’t really got a marriage beyond the honeymoon stage. My family is broken because their father isn’t here,” she said.

Elmarie Greef said Safenet had promised to “unconditionally” support the women financially, however this had stopped when they went to the media.

“As we started speaking to the media… in December we did not get paid. They said we must declare our men dead and claim from the US government,” said Enslin.

In a statement shortly after the payments stopped, Safenet said this was no longer the responsibility of the company, which had done more than enough to help.

It was also unclear whether Safenet – which no longer operates in Iraq – had ever paid a ransom, even though it had assured the women it would.

“The rumour is just that it wasn’t paid. It was asked for, but never paid,” said Enslin.

“There are people out there who must know what’s going on,” she said.

Lourika Durant is the only one of the four women who heard from her husband Andre after his abduction.

He called her briefly on December 23, 2006, but the call was quickly disconnected.

“I was excited. It was such a high. I just can’t imagine what it would be like to hear his voice again.

“When my phone rings and it’s a no number or a private number, my heart beats. My youngest is one-year-old, so she doesn’t even know her daddy,” Durant said.

The women are receiving money from the US treasury department. Their husbands are not officially declared dead, but are still listed with the United Nations as being among the 45,000 people missing.

Shortly before the briefing, the department of international relations and cooperation issued a statement recognising that the abductions had left “numbness of unexplained cause and effect”.

The department said it had worked on the case since the start and had shared the families’ countless disappointments, dashed hopes and the absence of communication from the captors.

Original Story here