The Defense Base Act is the best kept secret in the contracting world. But, if a claimant is injured at work, they might hear about the Defense Base Act through their employer, co-workers, or Internet searches. This post discusses some basics about the DBA, and it ends with an invitation to contact Strongpoint Law Firm if you would like additional information.
What is the Defense Base Act?
The Defense Base Act is workers’ compensation. Injured workers may file claims for weekly compensation and medical benefits.
But, there is also a unique doctrine that applies to DBA claims called the zone of special danger doctrine. Basically, the zone of special danger expands an insurance carrier’s liability to cover work injuries that happen overseas. What is important is that the injury resulted from a foreseeable risks.
How Much Compensation Can a Claimant Receive?
The amount of compensation that a claimant may claim depends on the claimant’s annual earnings capacity and average weekly wage.
Section 10 of the Longshore Act controls the calculation of a claimant’s earnings capacity and weekly wages. Typically, courts apply Section 10(c). Under that section, courts establish earnings capacity by looking at a few different factors. For example, courts will look at the wages the claimant earned in the job where the injury occurred. Courts will also look at wages of similarly situated employees that had the same type of job in the same locale.
Once the court calculates the claimant’s earnings capacity, it divides that sum by 52 to arrive at the claimant’s average weekly wage.
The claimant’s weekly compensation rate is two-thirds of the average weekly wage. But, there is a cap on the amount of benefits that a claimant can receive each week. For Fiscal Year 2020, the maximum compensation rate is $1,560.08.
Some examples might be helpful. A claimant with a $1,500 average weekly wage has a $1,000 compensation rate. A claimant with a $2,000 average weekly wage has a $1,333.33 compensation rate. And, a claimant with a $3,000 average weekly wage has a $1,560.08 compensation rate. The maximum compensation rate for Fiscal Year 2020 caps the last claimant’s compensation at $1,560.08 per week.
What Type of Medical Benefits Are Available?
Claimants with work injuries may claim reasonable and necessary medical care to treat that injury. This medical care could include any treatment, surgeries, attendant care, hospital care, medicine, or apparatus that the injury requires.
Also, the claimant gets their free choice of physician. If a claimant needs a specialist, then the claimant may choose a specialist. For claimants with mental health injuries like Post-Traumatic Stress Disorder, claimants can choose both a psychologist for therapy and a psychiatrist for medication management.
The most important caveat to this broad entitlement to medical treatment involves chiropractors. The Longshore Act and the Defense Base Act only allow manipulation of the spine to correct subluxation identified by x-ray or clinical findings.
Some of the more uncommon covered medical items include therapeutic mattresses, lift chairs, and even hot tubs. What matters is that a doctor opines the treatment is reasonable and necessary for the claimant’s condition.
What Injuries Are Covered?
The Defense Base Act covers many types of injuries, including injuries to:
- Mental Health
- Pulmonary Injuries
- And more…
Unsurprisingly, war zone work can lead to mental health injuries. Many Defense Base Act claims involve PTSD or other depression and anxiety conditions.
Further, the Defense Base Act covers aggravation injuries, too. When a preexisting injury is aggravated or exacerbated by the claimant’s employment, then the employer and insurance carrier may be liable for benefits.
Keep in mind that the Defense Base Act pays weekly compensation for a “disability,” not just an “injury.” The two terms have different definitions. An injury is something that goes wrong with the human frame which arose during the course and scope of employment. A disability is the inability to perform pre-injury work because of that work-related injury.
How to File a Claim:
An injured worker can file their own claim for compensation if they would like to do so. The form required to file a claim is available online. It is called the “Employee’s Claim for Compensation, Form LS-203.”
Claims are fax-filed with the Division of Longshore and Harbor Workers’ Compensation, or DLHWC. The DLHWC is a division of the Office of Workers’ Compensation Programs.
Two years ago, the DLHWC issued Industry Notice No. 166, which explains the fax filing process. Basically, fax the LS-203 to (202) 513-6814 without a cover sheet. The DLHWC will assign a case number and then notify the employer and its insurance carrier that the claim was filed.
If a claimant has an attorney, then the attorney can fax file the LS-203 along with a notice of retainer. The notice of retainer lets DLHWC know that the attorney can litigate the DBA claim on the injured worker’s behalf.
Should a Claimant Retain an Attorney?
If a claimant must ask whether they should hire an attorney, they probably already know the answer.
Still, hiring an attorney is a personal choice. The good news is that Congress made the Defense Base Act a fee-shifting statute. That means the insurance carrier will pay the claimant’s attorney’s fees if specific prerequisites are met.
Importantly, attorneys cannot accept fees unless the DLHWC or a judge approves the fee. Attorneys cannot charge retainers or contingency fees in DBA claims.
Personally, I think hiring an attorney is a good idea. The sooner the better. The Defense Base Act is littered with thorny legal issues, including (but most definitely not limited to):
- How to challenge an incorrect average weekly wage calculation.
- The application of the statute of limitations to claims and injuries.
- Whether a labor market survey genuinely proves suitable alternative employment.
- An impairment rating’s accuracy.
- The application of the zone of special danger doctrine.
And, of course, a claimant should consider the other side. Is there a defense attorney? Is the claims adjuster knowledgeable? If so, then a claimant would do well to consider retaining their own attorney to remain on equal footing.
In conclusion, the DBA is a well-kept secret. Many contractors who qualify for benefits never pursue their rights. If you need information about the DBA, contact us at (985) 246-3194 or (844) DBA-COMP, or our contact form.
By Officer – United States Air Force, Public Domain, https://commons.wikimedia.org/w/index.php?curid=22671045