Workers Headed to Japan and WC Coverage Issues

Wednesday, April 27, 2011 | 0

By David P. Condon
Welch & Condon

In the aftermath of the devastating earthquake and tsunami (and the resulting nuclear catastrophe) in Japan it is anticipated that many workers will be going to Japan to help in the humanitarian aid, clean-up and rebuilding likely to occur in the next several years.  To the extent that these workers are employed by U.S. contractors under contract with any federal agency they may well have workers’ compensation coverage under the Defense Base Act (DBA).

Coverage under the DBA extends to: (1) Workers working on any contracts with any U.S. government agency, including construction and service contracts and contracts approved and funded by the U.S. under the Foreign Assistance Act, if the contract is performed outside of the United States; (2) All workers engaged in such employment, regardless of nationality, including U.S. citizens and residents, host country nationals (local hires), and third country nationals (individuals hired from another country to work in the host country); and to include (3) All workers employed by all levels of contract, including sub-contracts and subordinate contracts, are also covered under the Act.

There are provisions for a U.S. Department of Labor (DOL) waiver of coverage but even if granted the waiver is typically conditioned such that it does not exempt from DBA coverage citizens of the U.S., legal residents of the U.S., or employees hired in the U.S.  Waivers are strictly enforced and if the conditions under which the waiver was granted (e.g. that local workers’ compensation programs would cover workers injured on the job) do not hold true, DBA coverage is extended to those formerly “waived” workers.  At this time the DOL has granted waivers for the Department of the Defense and the State Department for work performed in Japan.  No other federal agencies at this time have been granted waivers for work performed in Japan and thus all non Defense and State Department agency (i.e. any other federal agency) contractors must provide DBA coverage for its workers in Japan.

What does this coverage cover and dies it include radiation exposure related disease from work done in Japan?  All injuries or occupational diseases which arise out of or result from employment exposures are covered.  That would include conditions such as radiation illness that may not manifest itself for many years following exposure.  To qualify for coverage a worker needs to show work for a covered employer working under federal contract outside the U.S., that the worker was injured or contracted a disease during that employment and that the employment conditions were such that they could have caused the injury or disease.  That is sufficient to bring into play a presumption that the conditions of work did cause the injury or disease (a possibly rebuttable presumption, but that is the subject of another blog).

All DBA claims arising out of Japan should be filed in the Office of Workers’ Compensation Programs (OWCP), part of the U.S. DOL) in Honolulu, Hawaii, but after they are filed there initially they may be transferred to the OWCP office nearest the worker’s residence (e.g. Seattle).

For more information see: http://www.dol.gov/owcp/dlhwc/dbacoverageinJapan.htm.

<i>David P. Condon is a partner with Welch & Condon, a claimants' law firm in Tacoma Wash. This column was reprinted with the firm's permission from its blog, at http://washingtonworkerscompensation.wordpress.com/</i>