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Taha had the good fortune of speaking English. When a chance arose in May to translate for the occupying troops, he grabbed it.

And why not, when he could thereby earn $10 a day, over double his pay for driving a car?What difference did it make that American translators, working the same job, were earning $80,000, or 30 times his wages?

Taha was discharged nine months later, and the family moved into subsidized housing. His wife was paid to serve as Taha's home care attendant.

AIG, the insurer for Taha's American employer in Iraq, Titan Corp., paid Taha's medical care expenses and his disability check. Taha had a workers' compensation claim under the provisions of the Defense Base Act (DBA).

Originating during World War II, the DBA requires overseas contractors of American governmental agencies to purchase workers' comp insurance. The DBA borrows wholesale the benefits and dispute resolution processes of the Longshore and Harbor Workers' Compensation Act.

In Iraq alone, 100,000 workers have been covered; more than 1,000 have died on the job. Were it not for the amazing capacity of military medicine to deliver seamless care from Iraq to the United States, Taha would be in Iraq today, perhaps dead.His American employer, Titan, interrogated prisoners for the U.S. Army.

Do the right thing for foreign nationals who expose themselves to great danger on our behalf.

Which brings us to how a U.S. Department of Labor judge decided what Taha's disability check should be. That Taha had a permanent disability, that he was entitled to lifetime support, and that he was legally able to remain in the United States, was not in dispute.

The judge was tasked with answering the most bedeviling question in all of workers' comp claims today: how do you estimate the economic loss of a disability?

She dove into the Longshore Act and surfaced with this phrase between her teeth: The "average annual earnings" used to calculate Taha's income loss had to align with that of "other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality."

All the parties in the suit agreed that Taha's work was identical to those of Americans earning vastly more than him.

Notwithstanding that, the judge found that Taha's "similar class" comprised Iraqi nationals, even though Taha never had the opportunity to work at the income level of American colleagues.

"Accordingly," the judge wrote, "I find that the most reasonable measurement of claimant's age-earning capacity at the time of his injury was his actual wages of $10 per day." She affirmed AIG's weekly payment of $46.15, even as AIG continued to pay Taha's wife about $850 a week to care for him.

PETER ROUSMANIERE is an expert on the workers' compensation industry.

May 1, 2009

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