Bases Covered

An American accountant was working for a company hired by the U.S. military to provide payroll services in Turkey. On a day off, he was moving a piece of exercise equipment into his apartment when the building’s elevator malfunctioned and he was killed. 

The man’s widow filed for workers’ compensation, but the claim was denied because it was not work-related. So she turned to Jorden N. “Nick” Pedersen Jr., who specializes in helping private contractors killed or injured while working abroad under U.S. government contracts.

Pedersen filed a claim under the Defense Base Act, a niched extension of the Longshore and Harbor Workers’ Compensation Act. DBA work, a narrow, little-known corner of personal injury law, has expanded since the U.S. military went into Iraq and Afghanistan post 9/11. But it’s still not a large field. 

“There could be 50 firms around the country doing it, less or more,” estimates Pedersen, who has been practicing for 40 years, mostly at Hoboken’s Baker Garber Duffy & Pedersen. Now he’s of counsel at Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins. “I can only say, with accuracy, that there are very few firms in the country that handle this type of work.”

Reasons for the low rate of DBA practices could be the learning curve and the travel time, Pedersen notes. “A significant amount of travel is required, which means time away from both the office and home,” he says. “To be effective in these cases, like any other specialty, a lawyer must be willing to dedicate time to learn the law and the requirements of the Department of Labor and the administrative law judges. The formal hearings require compliance with pre-hearing orders and discovery provisions, just like any other proceeding in the federal courts. It can involve such significant time and effort, in such a specialized area of practice, that it probably isn’t attractive for attorneys to learn and handle.”

In the case of the accountant, Pedersen presented evidence from engineers that the elevator would never have passed building codes in the United States. He also argued that the Act’s “zone of danger” provisions covered injuries during off-work leisure activities. He settled just before trial, for a substantial sum. 

The procedures are like a typical federal civil trial, including full discovery, with one big difference. “We don’t have a jury,” Pedersen says. “We go before administrative law judges.” Does he think not being able to tell stories to a jury is a negative? “I don’t think that the regulations providing for administrative hearings by a judge negatively impact the practice—actually, just the opposite is true. Most of my clients require determinations on their claims for disability and medical treatment as soon as possible.”

Many of his civilian clients support active-duty forces, in areas like security, maintenance, infrastructure and administrative work. Security personnel and translators who go out on patrols are among the most likely civilian contractors to suffer injuries or death, he says, often by roadside bombs or snipers. 

Pedersen began representing Longshore Act plaintiffs on the New Jersey waterfront as a young lawyer in the 1970s, “when there were a lot more longshoremen,” he says. “In fact, when I was hired in 1976 [at Baker Garber], there was a longshoremen hiring hall and medical clinic right in Hoboken, as well as several active piers where ships docked to load and unload cargo.” 

While he’s been doing this branch of personal injury work his whole career, it’s only been about the last 15 years that he’s seen an uptick in DBA cases. “It was usually only a few overseas cases a year, when a civilian contractor might get hurt with a military construction project in another country, or just working at an embassy,” Pedersen says. “But after about 2003, [the practice] exploded. Although, as the U.S. has withdrawn military forces from the Middle East and Afghanistan, the number of contractors has decreased, and I would anticipate this trend to continue,” he says. “I believe there will continue to be DBA cases, but not to the extent and volume that has existed in the past. I really enjoy representing these contractors and their families. They do important work, and they make a diverse group of clients from all over the country and the world.”