Scheduled Injuries vs. Non-Scheduled Injuries
In this article I discuss DBA non-scheduled injuries. There are two different types of injuries under the Defense Base Act: scheduled disabilities and unscheduled disabilities. In order to determine whether you are entitled to permanent disability compensation under the DBA, you first need to determine whether you have a scheduled injury or an unscheduled injury. Simply put, any injury to a body part not listed on the schedule is an unscheduled injury.
Defense Base Act Non-Scheduled Injuries
In order to determine permanent disability for a non-scheduled injury, you must first determine whether you are medically able to return to your usual and customary employment without suffering any wage loss. In other words, are you able to perform your regular work? If you are able to return to your regular work without incurring any wage loss, then you are probably not entitled to any permanent disability under the Defense Base Act.
This is a hard concept for some folks to grasp. Simply stated, you can have a fairly serious non-scheduled injury and if you are able to return to your usual and customary Defense Base Act work – then you are not entitled to any permanent disability compensation. Conversely, you can have a not nearly as serious non-scheduled injury that prevents you from returning to usual and customary Defense Base Act work – then you may be entitled to significant lifetime disability benefits.
In order to grasp this concept you need to understand permanent disability under the DBA for unscheduled injuries is a wage loss concept. The Judge will be comparing your pre-injury earnings to your post-injury earnings. In other words, you need to compare your Average Weekly Wage (AWW) before your injury to your wage earning capacity after your injury.
You Are Presumed To Be Permanently Totally Disabled
Under the Defense Base Act, you are presumed to be permanently totally disabled when you establish an inability to return to your usual DBA employment. Your usual DBA employment is that which you were performing at the time of your injury. If you satisfy the requirements for this presumption, the burden shifts to the DBA insurance company to establish the availability of suitable alternate employment that you capable of performing. Again, the focus here is on you - not some ordinary or reasonable person.
The DBA insurance company bears the burden of establishing that suitable alternate work is realistically and regularly available to you in the geographic area in which you reside and which you are capable of performing considering your age, education, work experience, and physical restrictions and/or psychological restrictions.