During the course of your Defense Base Act claim, you will have to determine whether you want to litigate or settle your claim. Therefore, it is important for you to know how Defense Base Act claims are litigated. It is also important for you to have a guide like Jon Robinson of Strongpoint Law Firm to help you understand Defense Base Act procedure, and to navigate DBA-specific issues involving the average weekly wage for overseas contractors or the zone of special danger.
How Does the Defense Base Act Process Work?
After you are injured, make sure that you seek timely medical treatment. An injured contractor’s health is the most important aspect of a Defense Base Act claim. You are entitled to your choice of physician, meaning you get to choose a doctor or a specialist to treat you for your injury.
The Defense Base Act is administered by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”). It will make the initial recommendations regarding your entitlement to benefits. Be sure to provide the DLHWC with all relevant medical records associated with your injury.
The DLHWC will want to hear from your employer and carrier before making a recommendation. Typically, the parties participate in an informal conference and then the DLHWC issues a memorandum. Your attorney should represent you in this informal conference. If any party disagrees with the DLHWC’s memorandum, then that party files a Form LS-207 to explain their disagreement.
From there, either party may choose to refer the case to the Office of Administrative Law Judges. This marks the start of the formal adjudication. The parties send discovery requests to one another, asking questions and requesting documents. The parties will also want to schedule depositions so that they can ask questions under oath. It is typical to depose the injured worker, their doctors, the defense experts, and even the insurance adjuster or a representative from the injured worker’s employer.
Once the parties complete discovery, they participate in a formal hearing before an Administrative Law Judge. Many rules of procedure and evidence are relaxed for administrative hearings. Still, it is important to put on the best case possible in order to carry the burden of proving your case.
After the hearing, the waiting begins. It can sometimes take a year for an Administrative Law Judge to issue an opinion. Once the opinion is issued, either party can choose to appeal. Or, the parties can choose to abide by the Administrative Law Judge’s opinion.
As you can see, the path in a disputed Defense Base Act case can be long and perilous. After your injury, you will have to:
- Seek ongoing medical treatment.
- File an Employee’s Claim for Compensation, Form LS-203.
- Work with the DLHWC.
- Participate in one or more informal conferences with the employer and carrier.
- Participate in discovery requests by answering questions and supplying documents.
- Give a deposition.
- Undergo medical examinations and testing.
- Testify at trial.
- Wait for the Administrative Law Judge’s order.
What if I Just Want to Settle My Claim?
Of course, there are alternatives to formal adjudication. Any time during the course of your claim, the parties may discuss settlement. Most cases settle. It is important that you know when and how to settle your claim. After all, it is your future at stake.
The good news is that your settlement will only be approved by the DLHWC or an Administrative Law Judge if your settlement is “reasonable.” Most settlements are reviewed by the DLHWC, which looks at a number of factors to determine if you are getting a reasonable settlement:
- Medical records. The DLHWC needs to know whether you have reached “maximum medical improvement,” and whether you have any impairment ratings to any scheduled body parts.
- Loss of wage earning capacity. The DLHWC needs to know whether you have returned to work or whether there is other employment that you can perform.
- Disputed legal or factual issues. Employers and carriers tend to favor disputes. The more disputed issues that exist, the cheaper they think they can settle a claim.
The DLHWC has thirty days to review a settlement. If the DLHWC believes that the settlement is reasonable, it will issue a Compensation Order. The employer and carrier have ten days to put the settlement money in your hands.
If the employer and carrier fail to pay you within the ten day deadline, then they are on the hook for a stiff penalty equal to 20% of the amount of the outstanding sum. The ten day rule applies no matter whether the injured worker lives in the United States or in another country.
Are There Other Ways to Resolve a Claim?
Besides compensation orders and settlements, parties sometimes enter into Stipulations. There are important considerations when entering into Stipulations with an employer or carrier, such as:
- Whether ongoing or future medical benefits remain available.
- Whether the Stipulations allow for ongoing compensation benefits.
- Whether you will be paid a lump sum for any permanent impairment ratings that a doctor may have assigned.
Do I Need an Attorney?
If you are asking yourself whether you need an attorney, then the answer is, “Yes!” You are rightfully concerned about your medical status, your need for future medical care, and your need for lost wage benefits. It is your future, and you owe it to yourself to take every precaution with your Defense Base Act claim.
Jon Robinson of Strongpoint Law Firm has extensive experience handling Defense Base Act claims. He has tried cases across the country.
Contact Jon Robinson at (985) 246-3194 for a free and confidential case consultation. Or, fill out the contact form and let Jon contact you.
