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What does the Defense Base Act insurance company doctor have to say in order to defeat my DBA Case?

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What does the Defense Base Act insurance company doctor have to say in order to defeat my DBA Case?

“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
 
I have written articles on what your doctor has to say in order for you to win your Defense Base Act case. (You can check out this article on the evidence you'll need in order to win your DBA case). In this article, I take a different approach. Here I talk about what the DBA insurance company doctor has to say in order for you the DBA insurance company to defeat your DBA claim.
 
Or more accurately, what does the DBA insurance company have to say in order for the Judge to credit the insurance company doctor over your doctor? Meaning, you lose your DBA case.
 

In this article I answer these questions and address the following issues and more: 

How is your Defense Base Act case like playing poker?

Trials are a gamble

Nothing's for certain. It can always go wrong.

You gotta know the rules

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

You have to be willing to get dirty

The 20(a) presumption

What just happened here?

You have to tell the truth

 
I also provide case law in this article (see below). And I tell you exactly what must be contained in the DBA insurance company's doctor report.
 
As always, I try and provide this information, with no B.S. 

How is your Defense Base Act case like playing poker?

You need to know how to evaluate your DBA claim. Although I don’t gamble, I somewhat understand the rules of poker.
 
In some ways, your DBA case is like a poker game. For example, in poker a full house (a combination of three of a kind and a pair in the same hand... for example three jacks and two 9's) beats three of a kind (any three numerically matching cards... for example three 7's). 
 
And, importantly, nothing beats a royal flush (the combination of ten, jack, queen, king, ace, all of the same suit).
 
You need to be able to not only evaluate your hand (read: evidence), but also be able to evaluate the DBA insurance company’s hand (read: evidence).
 
Again, I don’t gamble, pe se - such as Las Vegas, horse racing, sports books and the like.
 
But, as I explain here, going to trial is a gamble. 

Trials are a gamble

Truth be told, trials are a gamble. Too often, they are a HUGE gamble. 
 
Meaning, when you take your case to trial, you are, in essence, gambling on what the Judge or jury will decide. In that sense, I’m no different than a river boat gambler. Only it’s in a courtroom. Not in a casino or a riverboat.

Nothing's for certain. It can always go wrong.

In the words of Robert Hunter:
 
 Nothings for certain.
 It can always go wrong.
 High Time - Robert Hunter
 
This is also called the hazards and risks of litigation. You can win. But you can also lose.
 

You gotta know the rules

In order to be able to evaluate the DBA insurance company’s evidence, you need to know the rules, so to speak.  That’s what I try and explain in this article. What the DBA insurance company need their doctor to say in order to keep you from getting the DBA benefits you’re entitled to.
 
Not to mix metaphors. But it's sort of like trying to play football or baseball when you don't know the rules. How do you think that would go for you? ...See what I mean. 
 
And the law is even more complex than professional football and baseball. 
 

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
 

You have to be willing to get dirty

I tell young lawyers that they have to get dirty. Meaning, that they have to get into the evidence. They have to learn the evidence in your case.
 
They have to be willing to roll their sleeves up and get their hands dirty. Not literally. But figuratively. You aren’t going to win just reading about statutes and case law. You have to know the law too, of course. But you have to know the case your taking to trial.
 
The getting dirty I refer to hear is learning about your evidence. The nitty gritty, so to speak.  You get that by studying the medical evidence and talking to you and talking to the potential witnesses. 
 
Meaning, you have to slice and dice the evidence. Know your case.

The 20(a) presumption

No one said that this was going to be easy. It starts with the 20(a) presumption. For more on the 20(a) presumption, I suggest you check out this article.
 
For example, if your doctor says that you suffer from PTSD. For example, they write a report saying that you suffer from PTSD. You have made a Section 20(a) prima facia case.  American Stevedoring, Ltd. v. Marinelli, 248 F.3d 54, 35 BRBS 41(CRT) (2d Cir. 2001).
 
The burden then shifts to the DBA insurance company to rebut the presumed causal connection with substantial evidence that your injuries were not caused or aggravated by your employment.  See Rainey v. Director, OWCP, 517 F.3d 632, 42 BRBS 11(CRT) (2d Cir. 2008); Obadiaru v. ITT Corp., 45 BRBS 17 (2011). 
 
If the Section 20(a) presumption is rebutted, it no longer controls, and the issue of causation must be resolved on the evidence of record as a whole, with you (the claimant) bearing the burden of persuasion.  See Rainey, 517 F.3d at 634, 42 BRBS at 12(CRT); Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
 
In order to rebut the Section 20(a) presumption the DBA insurance company's doctor must state that your employment did not cause your injury or aggravate, accelerate, or combine with an underlying condition.  See Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 43 BRBS 67(CRT) (4th Cir. 2009).
 
For example, in a recent case, the DBA insurance company doctor stated,  claimant exhibited “some evidence of depression and anxiety.” Although the DBA insurance company doctor stated that he “was unable to reach a conclusion regarding diagnosis because of the lack of reliability of evidence,” he did not state that claimant does not have anxiety or a depressive disorder or that these conditions are not related to the work incident. 
 
In this case, the BRB ruled that as a matter of law, the DBA insurance company’s opinion cannot support a finding that the Section 20(a) presumption is rebutted.  See Rainey, 517 F.3d 632, 42 BRBS 11(CRT); see also Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004) (physician who addressed claimant’s mental condition but declined to comment on claimant’s physical symptoms does not rebut the presumption that the physical injury was work-related). 
 
In the absence of any other evidence in the record legally sufficient to support a finding that claimant’s  conditions are not work-related, the BRB reversed the administrative law judge’s finding that DBA insurance company rebutted the Section 20(a) presumption. The BRB held that claimant’s depression and anxiety were work-related as a matter of law.  See Rainey, 517 F.3d at 637, 42 BRBS at 14(CRT); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.,), cert. denied, 429 U.S. 820 (1976); Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).
 

What just happened here?

In lay terms, because the DBA insurance company doctor did not say that the claimant didn’t have the conditions or that the conditions weren’t related to the claimant being overseas, that the DBA insurance company didn’t make their case. Thus, the claimant’s injuries were, as a matter of law, related to them being overseas. Meaning, claimant won.
 
And there you have it.  This is what the DBA insurance company doctor has to say, in order to rebut your Section 20(a) presumption:
 
1.  That you don’t have the injury or condition, or
2.  That you do have the injury or condition, but it isn’t related to your being overseas.
 
If they don't come out and actually say one of these two things - then you win. 
 
If they come out and do say one of these two things, it doesn't mean that you'll lose. It just means that the Section 20(a) presumption falls away and the Judge will have to decide if they believe your doctor and/or your evidence or the insurance company doctor. 

 

You have to tell the truth 

 
In this instance (where the Judge has to decide between your evidence and the insurance company's evidence, it is so important the Judge believes you and hopefully, likes you.  Because if the Judge doesn't believe you, you will likely lose.  Because of this, you need to tell the truth about everything. Everything. 
 

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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