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Can I get more money than the schedule allows if I have a scheduled injury under the Defense Base Act?

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Can I get more money - if I have a DBA scheduled injury?

“When I seek out professional advice, I want honesty, I want frankness, I want advice straight-up, with no B.S. So should you.”

Defense Base Act Lawyer and author of the 5 Star book Win Your Defense Base Act Case  Bill Turley

 

Can I get more money - if I have a DBA scheduled injury?

The short answer is:
 
Yes, you may be able to get more money than the schedule allows if you have a scheduled injury under the Defense Base Act
 
But, before you read this article, I suggest that you check out this article on scheduled injuries under the Defense Base Act.
 
The long answer is a little more complicated. Not crazy, rocket science complicated. But, if you're familiar with my 5 Star book - Win Your Defense Base Act Case or this website, you know that I'm going to tell you most of the things you'll need to know so you can get the best result for your case. So, I suggest you pull up a chair and stay awhile. 
 
 

In this article, I answer these questions and address the following issues regarding how to get more money for you your scheduled injury under the Defense Base Act:

You’re usually (but not always) limited to the “schedule” and your AMA impairment rating

The permanent and totally disabled exception

It all starts with not being able to return to your usual job as an overseas contractor due to your injuries

Let me state this a little differently, just so you understand this important concept (after all we're talking about YOUR money here)

What can I do to learn more?

How to get more money for your scheduled injury (How can I get more money if I have a scheduled disability under the DBA?)

First, you have to be unable to return to your usual and customary employment

Second, the DBA insurance company must demonstrate suitable alternate employment.

Third, you need to understand how the law defines "disability" under the DBA

Can this be used as leverage in order to help settle my case?

The bottom line (YOUR money)


You’re usually (but not always) limited to the “schedule” and your AMA impairment rating

The general rule is that if you have a scheduled injury (see the list in this article on scheduled injuries under the Defense Base Act); then you’re limited to the number of weeks of disability payments when considering your AMA impairment rating.
 
Earlier in the previous article, I showed you the formula for determining the number of weeks of compensation that you’re owed.
 

The permanent and totally disabled exception

However, if you’re permanently and totally disabled, then you are entitled to your maximum compensation rate for the rest of your life (or as long as you’re permanently and totally disabled). "Permanent and total disability" means something different under the DBA, than you might at first think. 
 

It all starts with not being able to return to your usual job as an overseas contractor due to your injuries

This is how this plays out:  If you have a scheduled injury and your doctor says that you’re unable to return to your usual and customary employment as an overseas civilian contractor, then the DBA insurance company must demonstrate that there is suitable alternate employment. If the DBA insurance company doesn’t prove that there is suitable alternate employment, then you are entitled to permanent and total disability.
 
If you’re seriously injured, but you’re still able to return to your job as an overseas civilian contractor, then you’ll be limited to the schedule award (plus the value of your future medical, if you settle your future medical claim also).
 

Let me state this a little differently, just so you understand this important concept (after all we're talking about YOUR money here)

You are not limited to the benefits provided by Sections 8(c)(2) and (18) (read: the schedule) and can be awarded permanent total disability benefits unless the employer (read: DBA insurance company) demonstrates the availability of suitable alternate employment.   Hicks v. Pacific Marine & Supply Co., 14 BRBS 549, 556, 559 (1981); Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268 (1980); Jacksonville Shipyards v. Dugger, 587 F.2d 197, 9 BRBS 460 (5th Cir. 1979). 
 

What can I do to learn more about how to win my Defense Base Act case?

 
I suggest that you get a free copy of my book - Win Your Defense Base Act Case. I know good Defense Base Act law firms that have all their lawyers read my book. 
 
WIn Your DBA Case
 

How to get more money for your scheduled injury (How can I get more money if I have a scheduled disability under the DBA?)

There is a lot to unpack here. While it's certainly not not rocket science, you need to know how to thread the needle, so to speak.
 
Before I go into this, I need to give a word of caution.
 
Do you watch football? This is somewhere in between being down with the ball at your own 10 yard line with 1:30 minutes left to play and a Hail Mary. Doable. But not probable, in most instances. At least for most folks. Not to suggest that you can’t sneak out a field goal and get more money. But...... I’m not making any promises here.
 
Oh yeah, I suggest that you don’t try this at home folks. Meaning, you are going to need a good lawyer to pull any of this stuff off. So, listen up and pay attention.
 

First, you have to be unable to return to your usual and customary employment

Meaning, your injuries prevent you from performing the job of say, "security consultant" or "linguist" overseas where you were working when you were injured. 

Second, the DBA insurance company must demonstrate suitable alternate employment.

If the insurance company fails to show that there is suitable alternate employment, then you will be deemed to be permanently and totally disabled.
 
Please get the distinction here. You don’t have to prove that you can’t work. The burden here is on the insurance company. Meaning, that the DBA insurance company must prove there are jobs (or a job) available for you, in the area where you live.
 
Obviously, rural Iowa may be different than a major metropolitan area such as Dallas.
 
To really get this concept, I suggest you check out this article on suitable alternate employment under the Defense Base Act
 
If the insurance company is unable to demonstrate suitable alternate employment, then you can get more money for your scheduled injury. 
 

Third, you need to understand how the law defines "disability" under the DBA

The law defines disability as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U.S.C. § 902(10).
 
Although the Act does not provide a standard by which to determine degree of disability, courts have held that this determination must be based not only on physical condition but also on other indicia such as age, education, employment history, rehabilitative potential, and the availability of work that the claimant can do. Jacksonville Shipyards, Inc. v. Dugger, 587 F.2d 197, 198 (1979);  Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 796 (1979); Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005-1006 (1978).
      
Thus, "an individual may be totally disabled for purposes of the Act when physically capable of performing certain work but otherwise unable to secure that particular kind of work." Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006 (1978); Odom Constr. Co. v. United States Dep't of Labor, 622 F.2d 110, 115 (1980).


Can this be used as leverage in order to help settle my case?

 
Absolutely. 
 
First, I suggest you consider taking the position that you’re permanently and totally disabled until and unless the DBA insurance company proves suitable alternate employment.
 
Second, once the DBA insurance company gets a Labor Market Survey, you need to apply for all of the jobs on the Labor Market Survey. If you apply for the jobs and don’t actually get any of these jobs - then you have an argument that the jobs weren’t available to you.
 
Third, you can usually show that the jobs on the Labor Market Survey aren’t within your physical restrictions, you aren’t qualified, etc. Be ready to attack the Labor Market Survey.
 
Fourth, most vocational rehabilitation “experts” that conduct Labor Market Surveys are lazy and just don’t do that good of a job.  They sure seem to recycle old jobs (and use them again and again in different Labor Market Surveys) and it also seems like they are either making jobs up and/or they do very little homework into the alleged “available” jobs.
 
Fifth, the insurance company voc rehab person is usually trying to show higher earning jobs in their Labor Market Surveys, in order to demonstrate a smaller loss of wage earning capacity.
 
They rarely seem to understand that if they show any suitable employment - even minimum wage jobs, that the DBA insurance company will be able to meet their burden of proving suitable alternate employment. So, they usually aim too high. Which is much easier for you to beat.
 
Sixth, or they will make the mistake of depending on the DBA insurance company’s doctor physical restrictions. If the Judge goes with your doctors (presumably) tougher physical restrictions; by crediting your doctor - then the jobs within the DBA insurance company doctors restrictions are probably not going to be “suitable.”
 
Seventh, if you do any work after you're released to return to work by your doctor and before you settle you case, you will probably lose the argument that you're permanently and totally disabled. I'm not telling you to dog-it. I'm jst letting you know the facts of life. 
 

The bottom line (YOUR money) 

 
It comes down to money. Anyone tells you different, than they’re either not being honest with you or honest with themselves. Or both. 
 
Using all of these techniques and arguments will sometimes enable you to receive more in settlement than the value of your claim has with the AMA guidelines/ scheduled injury.
 
Good luck. 

Need help right now?
 

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This article isn't legal advice
 

These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why DBA cases are not won and/or are not as successful as folks might have hoped for.
 
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different.
William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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