Outside Contractors Injured in Iraq may be Entitled to Massachusetts Workers’ Compensation

The Department of Defense has made a concerted effort to outsource many of the non-combat jobs in Iraq that members of the armed forces have performed for generations. Private contractors feed our troops, drive supply vehicles, maintain equipment, and perform many other jobs previously done by members of the armed forces.

People employed in these jobs are often described as outside contractors. The reality is that most are employees of outside contractors. One should not be influenced by a job title; it is the relationship between the parties that determines whether one is an employee or an outside contractor. The real outside contractors cannot designate those it sends to perform their contracts with the US government as outside contractors, and thereby evade responsibility associated with the injuries and death sustained in Iraq and Afghanistan.

Much has come to light over the past months as employees of outside contractors return home and are denied a source of payment of medical and disability benefits associated with their work for these outside contractors. Health insurers and the federal government have evaded their responsibility to provide for the needs of those who were placed in harm’s way by large corporations which have reaped huge profits by placing employees into a military operation.

The laws of most states provide that a person who is hired to perform work for another is an employee who is entitled to workers’ compensation coverage regardless of where the injury occurs. The focus of the law that protects workers is the activity in which they were engaged when injured. It, in most states, does not matter whether the injury takes place in Massachusetts, California, or Iraq. What really matters is whether the injured worker was injured while performing work for his or her employer.

Massachusetts has long recognized that a person who is hired in Massachusetts is covered by the Massachusetts Workers’ Compensation Act regardless of where the employee is injured. A contract of hire is created when an employee accepts a job offer. If that acceptance is made in Massachusetts, then the Massachusetts Workers’ Compensation Act will provide benefits to the employee so hired. The acceptance, whether it be verbally communicated in person or over the telephone, or if in writing or by email is considered to have been consummated in Massachusetts if the employee is physically located in Massachusetts when he or she accepts the offer regardless of where the injury takes place.

Coverage for all who work for Defense Department contractors is required under the U.S. Defense Based Act (DBA) of 1941. This includes foreign nationals hired by such contractors. Coverage is not limited to only American employees, but all employees of the Defense Department contractors who are injured or killed.

There are other subtle distinctions with each state or country’s jurisdictional requirement and the type of benefits each system provides. There is considerable variation among these jurisdictions not only in terms of weekly benefits but also in terms of the provision of medical care, and the payment of specific compensation for the partial or total loss of use of various body parts and functions, even in terms of a compensable injury itself.

Employers have an interest in discouraging claims. It helps them to keep their workers’ compensation insurance premiums lower. One should not be influenced by an employer's statements as to what covered workers’ compensation, or if one is entitled to workers’ compensation benefits in the first place. Remember it is not the employer who defines the benefits and jurisdictions under which benefits may be payable. It is the law.

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