The DBA Is Wages Driven
The Defense Base Act is a wage driven workers' compensation scheme. Your temporary disability and your permanent disability benefits are driven by your wages. Generally, the higher your wages were/are the more your temporary and permanent disability benefits will be.
Because of this, the Defense Base Act insurance company will try and calculate your average weekly wage (AWW) as low as possible. And sometimes this screws you and your family out of all of your compensation benefits. Quite literally, taking food off your family's table. How this plays out is the DBA insurance company will try and calculate your AWW using both overseas earnings and your State-side earnings.
This right here is going to be why you need to find a skilled and experienced DBA attorney.
Earnings For The 52 Weeks Before Your Injury
Most of you know that the Defense Base Act falls under the Longshore and Harbor Workers' Compensation Act. Or the "Longshore Act" or "LHWCA." Generally, under the Longshore Act and Defense Base Act a Claimant's (read: injured worker's) average weekly wage is determined by their earnings 1 year or 52 weeks before their date of injury. If you have worked overseas as a DBA worker for over a year, this may not be an issue in your Defense Base Act case. However, if you have worked overseas for less than a year than this may be a huge issue in your case. Let's see why.
Average Weekly Wage For DBA Workers
Truth be told, average weekly wage is probably the most heavily litigated issue under the Defense Base Act.
Under the DBA, in some circumstances, your average weekly wage can be based solely on your overseas earnings. The courts have held that where a DBA worker has a one year contract and is injured before they have completed the one year contract, the injured DBA workers' AWW can be calculated solely on the overseas earnings.
It's All About Danger And Risks
The reality is DBA employer's pay higher wages in order to provide incentive for DBA workers who deal with work environment hazards and risks. When a DBA worker is injured after being enticed to work in a dangerous environment in return for higher wages, it is disingenuous to suggest that his earning capacity should not be calculated based upon the full amount of the earnings lost due to the injury.
Telephonic Emergency Informal Conference
If you aren't receiving temporary disability benefits or permanent disability benefits at the proper compensation rate you need to request the Defense Base Act insurance carrier provide you benefits at the proper AWW/ compensation rate. Be sure to also ask for retroactive benefits you are owed at the proper compensation rate. As always, you need a proof of service.
If, or rather, when the insurance company doesn't change your compensation rate - including providing your retroactive benefits at the proper compensation rate - request a Telephonic Emergency Informal Conference with the U.S. Department of Labor. As always when you are communicating with the Department of Labor, be sure to copy the insurance company adjuster and use a proof of service.
A Final Word To The Wise
Finally, as of the date of this article, the issue of DBA average weekly wage when the Claimant has worked considerably less than a year is currently pending with the Court of Appeals. Thus, caution is advised as we wait for the Court of Appeals decision(s).