The Ninth Circuit recently addressed the employer-employee relationship required in a claim under the Defense Base Act.  Claimant worked as a contractor truck driver with the U.S. military in Iraq.  In 2005, he was injured by an improvised explosive device (IED) and filed a claim under the DBA.  Claimant named his employer as Theodor Wille Intertrade, GmbH (TWI), a Swiss corporation that did business in Iraq as Servco Solutions, LLC (Servco).  TWI/Servco controverted the claim and denied Claimant was its employee.

The claim was submitted to the Administrative Law Judge on briefs.  Judge Paul Johnson reviewed multiple deposition transcripts (including two from the Claimant) and affidavits and denied the claim on the grounds that Claimant had failed to establish that there was an employer-employee relationship.  Claimant appealed to the Benefits Review Board, which affirmed Judge Johnson’s decision.  Claimant then appealed to the U.S. Ninth Circuit Court of Appeals.

The Claimant testified that he was working for TWI/Servco or one of its subsidiaries and that he took instruction from a TWI/Servco employee, Eddie Nagel.  He also submitted a signed declaration from a friend who confirmed these allegations, as well as a letter of recommendation from Mr. Nagel on TWI/Servco letterhead.  Judge Jonnson discounted Claimant’s testimony based on multiple inconsistencies at his two depositions, gave no weight to the signed declaration, and credited Mr. Nagel’s explanation that he wrote the letter out of sympathy, but did not supervise the Claimant.  The Ninth Circuit affirmed the ALJ’s findings because the credibility determinations were not in conflict with the record and held that substantial evidence supported the ALJ’s finding that Claimant was not an employee of TWI/Servco.

Mikha v. Director, OWCP