News from James R. Linehan PC

More and more American civilians are signing up for federal jobs that place them directly in war and combat situations around the world.

As those federal workers were injured and or even died as result of their job injuries, their families found very few benefits payable to them for those deaths.

That has now changed.

On August 18, 2009 the US Department of Labor with little public notice quietly amended existing regulations to provide for a $100,000 death benefit to be paid to federal employees who die of injuries incurred in connection with an armed force in what is called a "contingency operation".

Perhaps most importantly the law is retroactive and allows benefits payments to survivors for civilian deaths that occurred anytime on or after October 7, 2001.

And even more importantly, there is no requirement that the federal employee's death occur within a certain time after injury to qualify.

The new regulation is complicated and can be found here.

Here is a brief description of how this $100,000 death benefit is being made available.

The $100,000 payment is only available to defined federal civilian employees. Notably, the benefit is not available to active military service personnel even though the latter may have been killed in the very same duty operation working side-by side with the civilian employee.

A federal employee is defined under 5 USC 8101 and generally includes any worker in any branch of the US government. Notably the death benefits now also includes "Non-Appropriated Funds" (NAF) employees.

The death benefits falls under the US Department of Labor as part of the "federal" Office of Workers' Compensation Programs (OWCP).

The employee must be working in service with "an Armed Force" defined as the US Army, Navy, Air Force, Marines, and Coast Guard.

The employee must first prove that an injury or disease occurred in his or her service and the the death was causally related to that injury or disease. A death certificate is required.

The employee must prove that the injury or disease occurred in connection with the employee's service with an Armed Force in a "contingency operation". A contingency operation is defined in 10 USC 101(a)(13). Generally that means a military operation designated by the Secretary of defense as an operation with Armed Forces against an enemy of the United States or against an opposing military force, or calls to order during war or national emergency declared by the President or Congress. Contingency operations may also include humanitarian and peacekeeping operations. Contingency operations may be abroad or even inside the US but does not include operations of the National Guard when called into service by a Governor of a State.

A employee will be considered covered if he was injured while serving under direction or supervision of and official of an Armed Force conducting a contingency operation, or while riding with members of an Armed Force in a vehicle deployed in a contingency operation.

Other situations will be considered on a case-by-case basis by the USDOL.

Either the federal agency employer or the claimant's survivor(s) can start the death payment process. Regardless the claimant must file a claim with OWCP. OWCP Form 41 and OWCP Form 42 must used to start the claim.

There is no time limit on when the death must occur.

For example if an employee incurs an injury or disease in connection with service with an Armed Force in a contingency operation in Afghanistan in 2010, but does not die of his injury or illness until 2035, his death still qualifies for payment.

All deaths that occur on or after January 28, 2008 (date of public enactment of PL 110-181) due to injuries incurred in connection with service with an Armed Force in a contingency operation will qualify for the death benefit.

For those employees who died on or after October 7, 2001 and before January 28, 2008, they must show death was the result of injuries incurred in connection with service with an Armed Force in theaters of operation known as "Operation Enduring Freedom" or "Operation Iraqi Freedom".

The $100,000 payment will be offset by any other death benefits payment made under any other law of the US based on that same death.

Note; the employee must file for his injury or disease in connection with service with an Armed Force in a contingency operation within the OWCP timelines, e.g., within three years of date of occurrence. 5 USC 8122.

Thus it is absolutely vital that all federal employees serving in connection with service with an Armed Force in a contingency operation file immediately for any and all injuries and disease that occur while in service for reason that the injury or disease may or may not result in death until years or decades later.