Pre-deployment Injuries Covered Under the Defense Base Act


One question military contractors frequently ask me is whether injuries occurring during stateside preparation for overseas deployment are covered under the Defense Base Act. The typical fact pattern goes as follows. A defense contractor accepts a lucrative contract as a Protective Security Specialist (“PSS”) to escort high profile diplomats through enemy territory in Afghanistan. As part of their pre-deployment training, the PSS travels to a stateside United States military base and sustains a serious injury immediately prior to their deployment. Would this injury be covered under the Defense Base Act? The short answer is yes.

Section 1(a)(4) of the Defense Base Act, 42 USC § 1651 et seq., states that coverage extends to:

Except as herein modified the provisions of the Longshoremen's and Harbor Workers' Compensation Act as amended, shall apply in respect to the injury or death of any employee engaged in any employment...Under a contract entered into with the United States or any executive department, independent establishment, or agency thereof (including any corporate instrumentality of the United States), or any subcontract, or subordinate contract with respect to such contract, where such contract is to be performed outside the continental United States and at places not within the areas described in subparagraphs (1), (2), and (3) of this subdivision. . .

The above provision infers that Defense Base Act coverage extends over a claim when the claimant's employment under the contract is to be performed outside the continental United States. Accordingly, if an employee sustains an injury while engaged in activities related to their employment duties while in the United States under a contract that is to be performed outside of the United, then that injury should fall within Defense Base Act coverage.  Examples of such stateside activities include stateside job training, conditioning, orientation, travel and employee processing.

One case which extends Defense Base Act coverage to certain stateside injuries is Phoenix Indemnity Co. v Willard, 130 F.Supp. 657 (D.C.N.Y. 1955).  In Phoenix, the injured employee applied for employment under contract to perform construction work for the United States Government in Libya. On December 15, 1951, after a pre-employment examination, a written contract of employment was signed engaging the employee as Chief Inspector-Driller in Tripoli, Libya. Under his contract, the employee was obligated to submit to 'physical examinations, vaccinations and inoculations as may be required by the contractor' and other processing such as obtaining a passport and security clearance.  

Though the employee’s duties were to be performed in Tripoli, Libya, his compensation began on the day he signed his employment contract. On December 18, 1951, the employee went to the Passport Division of the Department of State in New York City to get a typhoid vacination, obtain clearance, and to secure his necessary passport. The employee remained in New York City for dinner, and boarded a bus home to Hoboken, New Jersey.  After leaving the bus terminal in Hoboken, the employee slipped on a piece of ice and fell, fracturing his left leg.  

The court ultimately ruled that his injury fell within Defense Base Act coverage. The court held that even though during his preparatory period the employee had no specific work assignment, his processing was “an integral and indispensable part of his employment.” Specifically, the court held:

The Defense Base Act, 42 U.S.C.A. § 1651, prescribes compensation for an injury during transportation to or from the place of employment when the employer, as here, provides the transportation at its cost. In a sense Peretti's waiting in preparation for his trip overseas was so clearly bound up with it as to be reasonably considered as part of his transportation, just as a stopover en route might be. In any event, it was sufficiently related to his employment and so incidental to the necessary preparation for his overseas assignment as to make the injury sustained, under all the circumstances here disclosed, one arising out of and in the course of his employment. Id.

An additional case extending Defense Base Act coverage to stateside injuries is Employers' Mutual Liability Insurance Co. v McLellan, 304 F.Supp. 321 (D.C.N.Y. 1969). In McLellan, a flight engineer was killed on his employer's plane that crashed in Alaska en route to Okinawa. The flight was performed under contract with the government for services in the transportation of cargo to the United States defense establishment in Okinawa. The court held that the statutory definition of public work was sufficiently broad to have encompassed the contracted activities, and that Defense Base Act coverage extended even though the injury occurred in the United States:

The flight originated at Travis Air Force Base, California, and was destined for Kadena Air Force Base, Okinawa. However, death occurred in the United States when the plane crashed in Alaska. It is apparent that the contract was to be performed outside the continental United States within the meaning of the statute. While it may be that performance was to take place partially within the United States in that loading of the aircraft would necessarily take place here, the purpose of the contract was to transport supplies outside of the continental United States. The performance within the United States, while necessary, was incidental in contrast to the performance without the United States. In any event, the statute does not say that all aspects of performance under the contract have to occur outside of the continental United States. Plaintiffs have advanced no reason why Congress would have sought to exclude an accident occurring under the circumstances of the case at bar from the coverage of the Act. The statute should be read liberally in order to carry out its remedial purposes.

Id. See also, Alaska Airlines, Inc. v. O'Leary, 216 F. Supp. 540 (W.D.Wash.1963),

In conclusion, coverage under the Defense Base Act begins once a worker executes their employment contract, and commences preparation for deployment, training, travel, and transportation that relates to their job.

To best determined whether your injuries fall within Defense Base Act coverage, contact Diamond Law Practice, PLLC today. We can offer you a free claim consultation, and help you recover all available benefits under the Defense Base Act. Please call (212) 220-7134, or email us at today.