Go to navigation Go to content
Phone: 619-304-1000
The Turley Law Firm P.C.

Frequently Asked Questions

Find answers to your questions about the Jones Act, DBA, California workers’ compensation, or employment law. If you have more questions, contact us.

  • Page 2
  • Am I allowed to collect Social Security disability and Jones Act benefits at the same time?

    Yes.

    Under the conditions of the Longshore and Harbor Workers' Compensation Act (LHWCA), injured seamen are not prohibited from collecting multiple types of injury payments. However, your total benefit payments can be reduced if you collect many different types of coverage.

    Injured Jones Act seamen should be wary of the following rules regarding collecting many types of injury and disability payments:

    Receiving State Workers’ Compensation Benefits:

    Eligible employees can collect both state workers' compensation payments and Jones Act payments, although any amount you receive from the state will be deducted from the amount your employer owes you. In these cases, injured sailors are allowed to collect the higher of the weekly compensation rates offered by the two systems. In addition, some states do not allow concurrent collection of workers’ compensation and LHWCA benefits, so the amount you receive can vary depending on where your case is heard.

    Social Security Reductions:

    Seamen who qualify for Social Security Administration (SSA) and Jones Act benefits can collect them at the same time for the same injury. However, the amount you receive from the SSA will likely be reduced as a result of collecting multiple payments, and you are required to notify the SSA if you receive multiple types of workers’ compensation.

    Income Tax:

    The IRS requires injured workers to report all of the funds received through various workers' compensation programs on their yearly tax returns. Although you are required to declare these payments, the IRS exempts your injury or survivors' benefits from taxation if they were paid through a federal or state workers' compensation program.

     

    A Jones Act Case May Be Your Best Option

    If you are receiving multiple types of injury benefits in an attempt to make ends meet, you should investigate whether your injury could have been caused by unsafe working conditions. The Jones Act allows seamen to sue ship owners for negligence, including employee mistakes and poor vessel maintenance. To find out if you could be owed more than your maintenance and cure payments, please use our website to learn more about negligence claims.

     

     

  • Are the payments I get from the DBA special fund lifelong benefits?

    Yes, as long as there is no change in disability status

    Many people are concerned about the length of time they can receive disability benefits through the Second Injury Fund (the Special Fund). Generally speaking, if you collect permanent total disability (PTD) or permanent partial disability (PPD) through this fund, your DBA special fund benefits can last the rest of your life as long as there is no change in your disability status.

    However, most employees will go through periods of injury improvement or worsening disability, both of which can affect a number of their benefits. Your employer or insurer may petition for a modification of your award based on a change in your condition, causing an increase, decrease, or termination of your payments. A few common situations where an employee’s benefits may be modified include:

    Temporary Disability:

    Employees collecting PPD benefits may require treatments, rest, or surgery that will leave them temporarily unable to work. During this time, the employee should be considered totally disabled, and his employer or insurance company should modify his benefits to temporarily increase his payments. Temporary disability is paid by the employer, not through the Special Fund.

    Worsening disability:

    Unfortunately, some employees who receive PPD benefits will suffer a deterioration of their conditions, making them permanently unable to earn a living. If your injury gets worse to the point where you can no longer work, you must apply for permanent total disability benefits through the Office of Workers' Compensation Programs (OWCP). You must have proper evidence of the change in your condition, such as past medical records, recent medical evaluations, and your doctor’s recommendations and work restrictions. You should also send this information to your employer or insurer to let them know there will be a modification in the amount and type of benefits you receive.

    Are my payments from the DBA special fund lifelong benefits?
    “When I seek out professional advice, I want advice straight-up. With no B.S. If you do also, you’re in the right place.”
    Defense Base Act Lawyer Bill Turley

    What If My Employer Unfairly Modifies My DBA Benefits?

    You, your employer, and your insurer may all submit requests to modify a number of your benefits. If one party does not agree to the proposed changes or termination of benefits, you may request an informal conference to decide the matter or get advice from a longshore attorney on how to proceed. To find out more about getting maximum payment for a DBA injury, read through a free copy of our guide, Win Your Defense Base Act Case.

     

    Be sure to claim your free copy of the 5 Star Book Win Your Defense Base Act Case 

    Win Your Defense Base Act Case by Bill Turley

    This is an eye-opening book that gives you an insider's view of the Defense Base Act and how to beat the DBA insurance company. This book will take you step by step on how to avoid the DBA insurance company tricks and traps that are designed to destroy your DBA claim. 

    If you do one thing - you owe it to yourself to read the 5 Star reviews of the book on amazon.com!!

    5 Stars on Amazon.com

    I suggest you read my book - Win Your Defense Base Act Case before you talk to the insurance adjustergive a statementsign any forms or even hire the wrong lawyer.

    Here are some of the 5 Star Reviews from amazon.com 

    Amazon Customer
    5.0 out of 5 stars
    Your DBA Case could not be in better hands. Get this Book!
    May 3, 2016

    If you are injured doing contract or military work overseas then I am telling you now to get this book. This book is the bible of winning a damn near impossible case and will stop you from being ripped off or taken advantage of by the DBA system. This book saved me from making grave mistakes that I was completely oblivious to and those mistakes would have cost me my case. So before you do or say anything,Change Your Future - please take the time to read this book.

     

    Mr. S G
    5.0 out of 5 stars
    5 out of 5!
    May 9, 2017

    WIN YOUR DEFENSE BASE ACT CASE: Is an absolute MANDATORY read for anyone searching for information on anything DBA. This book has examples of past case studies, it also goes over the entire DBA Claim process from start to finish, the bottom line here is that its an absolute necessity for anyone that could be starting a DBA claim. The information that you'll receive within WIN YOUR DEFENSE BASE ACT CASE: is priceless and theres no way you will regret making this purchase.

     

    RSA
    5.0 out of 5 stars
    True Guide to Success!
    January 21, 2016

    I can say with all honesty that without Mr. Turley’s Law Firm and without his skillfully written book, I would have been lost and could never have succeeded with my DBA case against that powerful insurance company. I am forever grateful.

     

    Jay
    5.0 out of 5 stars
    Turley's book is clearly written and an easy read. Highly recommended for anyone covered under DBA ...
    February 20, 2017

    In fact, I suggest buying a copy of the book immediately and reading it if you are covered under DBA and are either deployed or facing an upcoming deployment. It is better to be armed with information regarding DBA coverage and claims process prior to being injured.

     

    Need help right now?

     

    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

     

    Text us at 858-281-8008 - Be sure and put "new DBA case" in your text.

     

    Or you can leave us a message on this web page.

                  

    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 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.

  • Is my Defense Base Act injury claim confidential?

    Yes...

    an Employer who Shares Protected Information with Anyone Beyond Certain Pertaining Parties Could be Subject to Legal Action.

    Many contractors who are injured overseas are concerned about what will happen to their careers if they file an injury claim. For this reason, the U.S. Department of Labor (DOL) provides specific protections to allow workers to collect Defense Base Act (DBA) benefits while respecting a worker’s privacy.

    3 Questions About DBA Case Confidentiality Answered

    Who can see my DBA case file?

    Your employer, the employer’s insurance carrier, and administrators at the DOL may access your case file only for matters relating to your claim. In addition, you can receive one copy of your case file for your own records free of charge. Under the Privacy Act of 1974, the DOL cannot release any claim information to additional parties without written authorization from the claimant.

    With whom can my employer share information about my injury?

    Your employer has to share some information about your accident with the company insurance agent in order to process your DBA payments. Your employer may also be required to release certain details to the DOL and has the option of discussing the case with an attorney. An employer who shares protected information with anyone beyond these parties could be subject to legal action.

    What if my employer retaliates against me for filing a claim?

    Under the provisions of the Longshore and Harbor Workers Compensation Act (LHWCA), it is illegal for an employer to terminate, demote, or discriminate against any employee for filing an injury compensation claim. It is also illegal for an employer to retaliate against an employee who is giving testimony in an LWHCA hearing. Employers can only terminate or refuse to hire an employee who has a history of willfully filing false injury or benefit claims.

     

    The Terms of Your DBA Settlement May Also Be Confidential

    In some cases, workers can pursue legal action for unpaid DBA benefits and keep the details of the settlement confidential. To find out more about getting maximum payment for a DBA injury, read through a free copy of our guide, Win Your Defense Base Act Case.

     

    Be sure to claim your free copy of the 5 Star Book Win Your Defense Base Act Case 

    Win Your Defense Base Act Case by Bill Turley

    This is an eye-opening book that gives you an insider's view of the Defense Base Act and how to beat the DBA insurance company. This book will take you step by step on how to avoid the DBA insurance company tricks and traps that are designed to destroy your DBA claim. 

    If you do one thing - you owe it to yourself to read the 5 Star reviews of the book on amazon.com!!

    5 Stars on Amazon.com

    I suggest you read my book - Win Your Defense Base Act Case before you talk to the insurance adjustergive a statementsign any forms or even hire the wrong lawyer.

    Check out all of the 5 Star Reviews on amazon.com 

    rg
    5.0 out of 5 stars
    Powerful Book
    February 28, 2017

    This is a very good book! If you or someone you care about might think they have a Defense Base Act case then you need to buy this book. This book is straight forward no BS. This is the most info available about the process dealing with DBA that I have ever found. I personally use it and have gone through the DBA process from beginning to end and I can tell you this is spot on. Mr.Turley actually cares about the people that have gone overseas healthy, risking their lives and came back injured in some form or fashion. He cared so much that he wrote this book! This book is a valuable tool to take on the DBA!

     

    RSA
    5.0 out of 5 stars
    True Guide to Success!
    February 21, 2016

    If you work or plan on working as a contractor overseas, then make it your mission to obtain a copy of Mr. Turley’s (author) book, called “Win Your Defense Base Act Case,” and keep it on you at all times – because you will need it!

     

    Stephanie L. Winter
    5.0 out of 5 stars
    Injured overseas? Very first step is to get this book. A must read in a very important time of your life.
    July 29, 2015

    So I start to read this book. Part one, second paragraph I get the warm fuzzy that I might have the answers I needed to guide me through this crippling time in my life. And I can understand the words as it is written in a simple and straight to the point manner. Every page I learned something that I didn't know. And every page made me feel that there might be light at the end of this tunnel. A warm fuzzy. There are answers to questions I didn't even think to ask. Any question you may have is answered in this book. If you are an injured contractor, my first piece of advice is to read this book. My second is to get a second copy for your spouse. They see the pain and they are equally as stressed and need answers too. I hope this review helps you through your life changing journey to get you what you deserve and on the road to recovery.

     

    Need Help Today?

    Give us a call at 619-304-1000

     

    Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation. 

  • What are the rules for “reporting time pay” in California?

    Any Time an Employee is Required to Show Up to Work Should Be Considered Paid Time

    Under California Industrial Welfare Commission (IWC) Orders, employers must pay employees for unworked (but regularly scheduled) time, also known as reporting time. Simply put, any time an employee is required to show up to work should be considered paid time, even if he is not given a sufficient amount of work to cover all hours.

    Under the rules of reporting-time pay in California, if an employee is required to report to work, but performs less than half of his or her usual work hours, the employee must be paid for at least half of the scheduled day’s work at his or her normal pay rate. In addition, employees cannot be paid for less than two hours on a day of reporting, regardless of the time worked.

    In this article, our California wage and hour lawyers answer the following questions (and more):

    What are the rules for “reporting time pay” in California?
     
    What is California reporting time pay or show up pay?
     
    What is in the California Wage Orders on reporting time pay?
     
    What if I have to call into work by telephone to see if I have to work that day? 
     
    Am I entitled to be paid if I have to call into work to see if I actually work that day?
     
    What if I have to log on to the computer or check by my cell phone to see if I have to work... Am I entitled to reporting time pay? 
     
    Are there exceptions to California reporting time laws?
     

    What is California reporting time pay or show up pay?

    Under California law, if you are required to report for work and you don't actually work, but are no provided at least half of your usual hours, then you are owed reporting time pay. You must be paid the greater of half of your usual scheduled day (up to 4 hours) or 2 hours at your regular rate of pay. 

    What is in the California Wage Orders on reporting time pay? (It's all in the California Wage Orders)

    Reporting Time Pay.  Section 5 of each of the Orders provides:
     
    (A)   Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.
     
    (B)   If an employee is required to report for work a second time on any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.
     
    (C)   The foregoing reporting time pay provisions are not applicable when: (1)   Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2)   Public utilities fail to supply electricity, water, or gas, or there is a failure in the public           utilities, or sewer system; or (3)   The interruption of work is caused by an Act of God or other cause not within the employer’s control (D)   This section shall not apply to an employee on paid standby who is called to perform assigned work at a time other than the employee’s scheduled reporting time.

     

    Telephonic report:  What if I have to call into work by telephone to see if I have to work that day? 

    One of the questions I get asked is, Am I entitled to be paid if I have to call into work to see if I actually work that day?

    This is called telephonic reporting. That is, employers will make employees call into work and see if they work a shift that day. If your employer makes you do this and you are not required to work, then you are owed California reporting time pay for having to call into work. Ward v. Tilly's, Inc. (2019) 31 Cal.App.5th 1167, 1178. 

    Meaning, you are owed two to four's pay, every time that this happens. 

    What if I have to log on to the computer or check by my cell phone to see if I have to work... Am I entitled to reporting time pay? 

    Yes. As the court in the Tilly's case stated: 

    The reporting time pay requirement operates as follows. If an employer directs employees to present themselves for work by physically appearing at the workplace at the shift's start, then the reporting time requirement is triggered by the employee's appearance at the jobsite. But if the employer directs employees to present themselves for work by logging on to a computer remotely, or by appearing at a client's jobsite, or by setting out on a trucking route, then the employee “reports for work” by doing those things. And if, as plaintiff alleges in this case, the employer directs employees to present themselves for work by telephoning the store two hours prior to the start of a shift, then the reporting time requirement is triggered by the telephonic contact.
    Ward v. Tilly's, Inc. (2019) 31 Cal.App.5th 1167, 1185. (Emphasis added). 

    Clients smiling with their settlement checks from a California unpaid wages case.
    It feels really good when you get your check for unpaid wages owed to you!

    Are there exceptions to California reporting time laws?

    However, employers are not required to compensate employees for reporting time under the following exceptions:

    • If work operations are interrupted by threats to employees or property.
    • If civil authorities recommend that work be suspended.
    • If public utility services are interrupted, shutting off electricity, water, gas, or sewer service in the workplace.
    • When work is interrupted due to an act of God, such an earthquake or other natural disasters.
    • If the employee has reported but is not fit to work.
    • If the employee reported to work later than his scheduled time and was fired or sent home as a disciplinary action.
    • If the employee is compensated on paid standby status.
    • If the employee’s regularly scheduled shift is less than two hours.

     

     

    Not getting paid wages that you are owed is much more common than most people realize (and if you have concerns about not getting reporting time pay, chances are, the company owes you unpaid wages for other things)

    I don't need to read all of the recent studies that talk about how companies aren't paying all of the wages that they owed to employees in order to know that it's true. Based upon what I see, is that most folks have no idea how much they are getting ripped off by the company each paycheck. 

    My take is that if you suspect or know that your current or former employer hasn't paid you for reporting time pay, then this is probably the the tip of the iceberg , so to speak. Meaning, you are probably owed a lot more in wages (read: money) than you realize.

    My suggestion is that you have an unpaid wages analysis done in order for you to find how much money you're owed

    It's quick, painless and free and the upside is that you may find out you're owed a lot of money.  

     

     

     

     

     

    Bill Turley on the cover of San Diego Attorney Journal magazine.

     

    Why is Bill Turley asked to testify on wage legislation before the

    California State Senate and California Assembly? 

    Reporting time pay laws in California - Bill Turley

    Because Bill is known as a No B.S. straight-shooter lawyer

    Believe it or not, Bill is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk. 

     

    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

    Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

    Or leave us a message on this web page
     

    Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, photographs,  endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation. Every case is different. 

    This article is not legal advice. 

  • Is “donning and doffing” required to be paid for by a California employer?

    Yes.

    In order to perform their work effectively, many employees are required to wear special clothing, such as safety equipment, PSE, safety equipment, work gear, protective gear, hats, boots, aprons, and other equipment. Depending on the job, it can take over 10 minutes to put on and take off required clothing before and after each shift or breaks. In some cases, employers may insist that this “donning and doffing” be done on the employee’s own time.

    Am I supposed to be paid for the time it takes for me to put on and take off my work gear (safety gear, uniform, bunny suit, Tyvek coveralls, etc.)? 

    Yes.

    In legal terms, this is called "donning" (putting your safety gear, uniform, etc.) on and "doffing" (taking off your uniform, safety gear, etc.). 

    California donning and doffing law refers to California law that employees must be compensated for time spent changing into and out of: uniforms, safety equipment, work gear, PSE, bunny suits, safety gear that is need in order to perform their work duties. Employers must pay for all time that employees are under their control. Even if it is only takes a minute or two to put on or take off the work gear. 

    California employers can be compelled to pay workers for any pre- or post-shift activities that take place in service of the employer, even if the employee has not begun his principal work activities. Any tasks that are considered to be essential to the employee’s principal work activity should be compensable as part of an employee’s weekly pay, including:

    Uniforms:

    Police officers, nurses, doctors, mechanics, and other professionals who are required to wear uniforms should be paid to do so on-premises, especially if their work activities require a change of clothes mid-shift.

    Safety Gear:

    Some workers need to wear safety gear for the full duration of their shifts, such as food service workers or biochemical engineers. In many cases, the protective equipment needed takes several minutes to put on and take off, and doing so at home could compromise both the safety and sterility of the uniform. Any changing of clothes that cannot be done at home without posing a threat to the worker or work environment must be paid for by your employer.

    Bunny Suits:

    Part of the silicon wafer manufacturing process, phone manufacturing process, and/or computer manufacturing process takes place in "cleanrooms" -- environments that have few of the air-borne impurities that exist in the ambient air. Cleanrooms are classified by the number of particles of contamination permitted per cubic foot. Therefore, a Class 10,000 cleanroom has more impurities than a Class 10 cleanroom.

    All employees who work in cleanrooms must wear gowns to help maintain the environment. The gowns worn in the cleanrooms are referred to as "bunny suits." The process of preparing oneself to enter the cleanroom is called "gowning."

    Under California law, the time is takes workers to put on bunny suits and take off bunny suits must be paid work time. Companies can not legally require you to gown while you are not getting paid. 

    Under California law, you are entitled to rest breaks and meal breaks. Companies that require you to perform gowning (putting on your bunny suit or taking off your bunny suit), during part of the rest break or part of the meal break are in violation of California law. 

    You are not only entitled to be compensated for this time, but it is also a violation of California law. You are entitled to an hour's pay each time this occurs. California Labor Code Section 226.7. 

    Food Processing workers

    Workers in the food processing industry are usually required to put on and take off safety equipment and/or personal hygiene equipment in order to work in the food processing plant.  Under California law, you must be paid for the time it takes you to put on and take off this equipment. 

    Further, you are entitled to rest breaks and meal breaks. No part of your rest break or meal break can be spent putting on or taking off uniforms, protective gear, equipment, safety equipment and the like. 

    What are some of the industries where donning and doffing wage violations regularly occur?

     
    Kitchen workers, electric companies, gas companies, power companies, nuclear power companies, food processing workers, factory workers, semi-conductors, electronics, phone manufacturing, computer manufacturing, instrument manufacturing,  industries where workers that must wear PPE - personal protective equipment, food service workers, drilling companies , oilfield workers, nurses, ER nurses, ICU nurses, food packing companies, food processing companies, construction, pharmacy technicians/ pharmacy workers, cooks, bussers, welders, mechanics, medical lab technicians, amusement park workers.  
     
    There are many more job and industries that require personal protective equipment or special gear or clothing in order to perform the job. 
     

    What is the California law concerning getting paid for donning and duffing / putting on and taking off equipment for my work? 

    Under California law, you must be paid for all time that you are under the control of the employer. Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1009-10 (9th Cir. 2018).  Workers that are donning and duffing - meaning, they are putting on clothes or equipment in order to perform their job - must be paid for that time. Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903-904 (2004); Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003);  Negrete v. Conagra Foods, Inc., 2019 U.S. Dist. LEXIS 76291, *

     

    What if it only takes a minute or two in order to put on and/or take off the equipment/ work gear?  Am I still supposed to be compensated for this short amount of time?

    Yes.

    Under California law, employers must compensate you for any regular time that you spend before or after your shift (or during meal breaks and/or rest breaks) that you must perform.  Thus, even if it only takes a minute or two, then the company must still compensate you for this time. 

    Whenever you are under the control of your employer - you must be paid for that time. Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1009-10 (9th Cir. 2018).

    Your employer must pay you for this time, even if it is a short amount of time. Troester v. Starbucks Corp., 5 Cal. 5th 829, 847 (2018). Even when they only take a minute or two to perform.

     

    Happy clients with their settlement checks from a California unpaid wages case.
    Clients that are happy they got their check in a California Wage Case

    Donning and doffing law violations can lead to overtime violations

    A full-time employee who has been docked pay for pre- and post-shift work could be entitled to a significant amount of overtime pay. 

    Donning and doffing law violations can lead to meal period violations, rest break violations, paycheck stub violations and waiting time penalties (and we're talking very significant sums of money) 

    In most instances, when a company violates the law relating to donning and doffing it also leads to meal period violations and rest period violations. This is because workers will usually have to spend part of their meal break time and rest break time taking off and then putting back on their uniforms, safety gear and/or protective equipment. Most workers can't be expected to rest or eat while wearing this gear. 

    Under California law, you are entitled to an hour's pay every time you aren't provided a meal period and an hours pay every time you're not provided a rest break. California Labor Code Section 226.7. 

    In addition, as with all wages owed to workers, there are usually paycheck stub violations based upon the failure to list all the hours worked and the wages earned on the workers pay stubs. California Labor Code Section 226. 

    Finally, when all wages are not paid at time of termination, you are owed 30 days pay. California Labor Code Section 203. 

    In order to see how these all really add up fast, I suggest you check out the case studies. The Case Studies illustrate how the donning and doffing law work and how the meal period violations, rest break violations, pay stub violations and waiting time penalties all add up. 

     

    Case Studies 

    Case study - Kitchen and serving workers - donning and doffing (putting on and taking off smocks, aprons and hairnets)

     
    In a recent case, the workers served food in a large company.  This is a large Internet company. The company provides a large cafeteria style restarurant onsite, for it's workers.  The company that runs the cafeteria work for a contracting company. 
     
    The lunches are served buffet style to office workers. The kitchen workers and servers have to report to a changing room before their shift.  The put on smocks, aprons and hairnets in the changing room. From their they go to clock in.  The time spent in the changing room and then walking to and then clocking in is approximately 3-4 minutes per shift. The putting on their work clothes is called “donning” under the law.
     
    After their shift is over, they clock out and then go back to the changing room and take off their work clothes.  Then they put their work clothes in a laundry bin.  This also takes 3-4 minutes per shift. The taking off of their work clothes is called “doffing” under the law.
     
    Since the wearing of the work clothes is a requirement for the job, then the workers should be paid for these duties. It is illegal for the company to not pay the workers for this time that the workers are under the control of the employer.
     
    Using a conservative figure the kitchen and serving workers are entitled to 6 minutes of pay per day.
     
    Assuming the they work 50 weeks out of the year and work 5 shifts a week, that comes out to 25 hours. At $14 and hour that is $350. This is for the donning and duffing time at the beginning and end of the shifts.
     
    In addition, the company gave the employees a 30 minute meal break. If the workers wanted to leave the premises, they had to go to the locker room and change during their  30 minute meal break.  Under the Brinker California Supreme Court case, this is illegal for meal breaks. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (Cal. 2012).
     
    I know the Brinker case well, because I represented the workers in the Brinker case.
     
    Under the Brinker case, The employer satisfies it’s obligation to provide meal breaks if the employer:
     
    1.  Relieves its employees of all duty,
    2.  Relinquishes control over their activities and
    3.  Permits them a reasonable opportunity to take an uninterrupted 30 minute break, and
    4.  Does not impede or discourage them from doing so.  Or provide an incentive to forego.
    Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (Cal. 2012).
     
    When employees have to take off their smocks, aprons and hairnets and go to th employee changing room in order to do so, during their 30 meal break; then they didn’t receive an uninterrupted 30 minute meal break.
     
    The employees are owed an hour’s pay for each missed meal break.  California Labor Code Section 226.7.
     
    The workers worked 50 weeks in the previous year. Thus, the calculation for the meal period premium pay is as follows:
     
    $14 x 5 shifts a week x 50 weeks = $3,500
     
    In addition, the company “gave” the employees 10 minute rest break.  If the employees wanted to leave the premises during their rest break they had to the locker room and change.   The California Supreme Court in Augustus held that employer’s have the same duties in providing rest breaks as they do meal breaks. Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 270 (2016).
     
    I know the Augustus case very well also, because I wrote the winning Supreme Court brief in the Augustus case.
     
    Thus, the employees failed to receive legal rest breaks also.
     
    The employees are owed an hour’s pay for each missed rest break. California Labor Code Section 226.7.
     
    Conservatively, we till only use one missed rest break per shift.
     
    The worker worked 50 weeks in the previous year. Thus, the calculation for the rest period premium pay is as follows:
     
     $14 x 5 shifts a week x 50 weeks = $3,500
     
    In addition, the workers are entitled to $4,000 in paycheck stub violations.
     
    And, they are also entitled to waiting time penalties. California Labor Code Section 203.
     
    In this case study we are going to use the workers “same rate”, including the meal period premiums and rest period premiums.
     
    Thus, the wages at “the same rate” is as follows:
     
     $14 x 8 hours + $14 meal period premium + rest period premium = $140
     
     $140 x 30 = $4,200 waiting time penalties
     
    The total wages and statutory penalties are as follows:
     
     $     350  unpaid time (putting uniform on and off)
     $  3,500  meal period premiums
     $  3,500  rest period premiums 
     $  4,000  paycheck stub violations  
     $  4,200  waiting time penalties
     $15,550 Total

     
     
    Thus, the workers are looking a potential unpaid wages and statutory penalties of $15,500. Please note that these are the wages and penalties owed to the workers that worked on year.  The workers that were at the company for three years are looking at potential claims of $29,550. 

    In addition, tere are numerous potential PAGA penalties in addition to these wages and stautory penalties. 

     

    Bill Turley was called "California's Leading Wage and Hour Class Action Lawyer"

    Donning and Doffing lawyer - Bill Turley

    We are not saying this to brag. We are telling you this so you will know that Bill knows what he’s talking about.  Bill Turley represented the workers in the leading California Supreme Court case on California unpaid wages law - Brinker vs. Superior Court. 

    Bill wrote the winning briefs in the recent California Supreme Court cases - Augustus vs. Superior Court (the leading case on rest breaks) and Williams vs. Superior Court (the case that gives you the right to getting the names of your co-employees in a PAGA case). 

    Bill is regularly asked to testify before the California State Senate and the California State Assembly on unpaid wages law.  Bill helped write the recent changes to California's unpaid wages PAGA laws.

     

    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

    Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

    Or leave us a message on this web page

    These discussions and/or examples are not legal advice. All legal situations are different. This testimonial, photos, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.

  • What’s the difference between “nature” and “extent” of a Defense Base Act disability?

    You have to know the rules

    If you are going to be successful in any game, you first need to understand the rules. This is as true for the game of Monopoly, Chess and football. It's also true with Defense Base Act court cases.  Yes, a Defense Base Act case is a court case. At the end of the day, if you can't get your case settled, then you are going to have to take your case to court, and hopefully, win. 

    The first step in understanding the rules is first understanding the terminology. In this article I discuss "Nature and Extent of Disability."  After reading this article, I'll bet you know more about what these terms mean than 90% of the lawyers on the Internet that call themselves "Defense Base Act Lawyers." 

    "Nature" Deals With the Duration of Time; "Extent" Deals With the Degree of Injury

    There are four different categories of disabilities that are covered under the Defense Base Act (DBA): permanent total disability, temporary total disability, permanent partial disability, and temporary partial disability. Each of these classifications carries two important pieces of information: how long you are expected to be disabled, and the extent of your injury.

     

    Defense Base Act Nature and Extent of Disability - by Nationally acclaimed Defense Base Act Lawyer - Bill Turley

    I give you an insider’s view of Defense Base Act Law, with no sugar coating. No lawyer talk, no double talk. Ever."

    Defense Base Act Lawyer - Bill Turley

     

    Difference Between the “Nature of Disability” and “Extent of Disability”

    The nature of your disability covers the duration of time that you are expected to be disabled (the temporary or permanent classification). 

    The extent of your disability, however, is slightly more complicated. The extent of your disability concerns the degree of the injury (total or partial), but also the degree to which you are able to successfully function.

    Generally speaking, the extent of your disability is the difference between what you earned as a DBA worker (read: your average weekly wage) and your post-injury earnings. This is because disability under the Defense Base Act for unscheduled injuries is based upon a wage loss concept. 

    Your compensation will also depend on whether you have suffered a scheduled or unscheduled injury under Defense Base Act law. Scheduled injuries may involve the leg, arm, hand, foot, or hearing loss. If you have injured one of these body parts, your disability award is based upon a schedule.

    If you have injured another body part, your injury is considered unscheduled. Common unscheduled injuries include the back, neck, spine, shoulder, head, or internal organs. Psychiatric trauma is also considered to be an unscheduled injury. Unscheduled injuries are based upon a wage loss concept rather than a set schedule for compensation and will depend on whether or not you are able to return to your usual and customary DBA employment.

    It's a wage loss concept for unscheduled injuries under the Defense Base Act

    There are two types of injuries under the Defense Base Act. Scheduled injuries and unscheduled injuries. 

    Scheduled injuries are injuries to the following parts of your body: fingers, hands, arms, toes, feet, legs and hearing loss. Unscheduled injuries are to any other parts of your body. Such as your head, neck, back, shoulders, internal injuries, PTSD, emotional, etc. 

    For unscheduled injuries your permanent disability is a wage loss concept. Meaning, your permanent disability is based upon your loss of wage earning capacity.

     

    Thinking - "I have a legitimate case, I'm telling the truth, I'm good" ,,, is a common mistake that can tank your DBA case 


    One of the key things that you need to know is all the tricks and traps the insurance company is going to try and lay out for you in order to destroy your credibility.  

    The DBA insurance company has tricks and traps that folks just like fall for every day.  You might be thinking, "I have a legitimate case, I'm telling the truth, I'm good." However, that isn't the case. Not even close.


    Using these tricks and traps is how they get out of paying money to folks with legitimate claims. It’s how they roll.


    My book Win Your Defense Base Act Case is designed to help you avoid these case killing mistakes.

     

    The big picture

    If you're reading this, then my guess is that you have a Defense Base Act case. And it's my guess that you trying to figure out more about the Defense Base Act and your case. I know that I often will go on the Internet and try to get answers to questions I have on stuff that I am trying to research.  I figure you do also.

    I strongly suggest that you check out my book,  Win Your Defense Base Act Case. There really is nothing like it out there. 

    Win Your Defense Base Act Case - Bill Turley

    5 Stars on Amazon.com

    I suggest that you go to amazon.com and check out all of the 5 Star reviews of my book.  There are dozens of 5 Star reviews of the book on amazon.com.

    What you are going to see is that the book is packed with insider information that will help you win your case. The big picture here is that now that you are injured you have a court case. You can depend on the DBA insurance company attacking you, your character and credibility. It's how they roll. They will do all of that in order to keep from paying you the money benefits that you are entitled to under the law.

    One of the key and important parts of this book is helping you to navigate the minefield that the DBA insurance company is going to lay out to destroy your case. What you probably don't know is that the DBA insurance company has tricks and traps that folks just like fall for every day.  You might be thinking, "I have a legitimate case, I'm telling the truth, I'm good." However, that isn't the case. Not even close. 

    Based on having represented overseas civilian contractors for years and having had one of the two largest DBA practices in the the world that represents folks like you - - I would strongly suggest that you reconsider.  I strongly suggest that you read my book before you talk to the insurance adjuster, sign any forms, or even hire an attorney.

     

    Be sure to check out his article - Top 10 Questions about the Defense Base Act. 

     

    Need Help Today?

    Get a FREE copy of Win Your Defense Base Act Case, here. It will go through step by step what you need to do to win your DBA case and get you benefits sooner. 

    Or you can call us right now at 619-304-1000.

     

     

    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 or folks don’t get the result they were hoping for.

     
    Just because we have gotten great results in so many other DBA cases, doesn't guarantee in particular result in other cases. Including, case. Every case is different.

  • What is a Notice of Controversion, and how does it affect my Defense Base Act case?

    If you have received a LS-207 Notice of Controversion, then things are not going well for you. Most likely the LS-207 is the bearer of bad news.

    Your Defense Base Act benefits are being stopped, or decreased in some manner. Not good. 

    In this article I answer the following questions (and more) on LS-207 Notice of Controversion:

    What is a LS-207 - - Notice of Controversion?

    Defense Base Act law regarding Notice of Controversion

    Why should I read the fine print on the LS-208 Notice of Controversion?

    The Defense Base Act insurance company sent me a Notice of Controversion - what should I do?

    What should I do if Defense Base Act insurance company stopped my benefits? ....Why is this is no time to dilly-dally?

    What is a “get in line and wait” system with the DBA? 

    Why is it a good time to lawyer-up? 

    Why do I need to be ready?

    What is the biggest problem with DBA claims (it sucks, but it's the way it is)?

    It really sucks 

    What do I really need to do?

    What is some more bad news on the Notice of Controversion?

    What is a LS-207 - - Notice of Controversion?

    An LS-207 Notice of Controversion is a form. But this form can, and usually will, cause you a lot of problems.

    Under the Defense Base Act, the employer (read: the DBA insurance company) is supposed to file an LS-207 - - Notice of Controversion when they cut off your Defense Base Act benefits.  Or whenever they deny your claim.

    It is called “LS” because of “Longshore.”

    "207" is the form number.

    If the DBA insurance company is not providing you with weekly compensation benefits (i.e. a weekly compensation check), then they will usually file a LS-207 - Notice of Controversion with the US Department of Labor and you will be sent a copy.

    Defense Base Act law regarding Notice of Controversion

    If employer (read: DBA insurance company) controverts the right to compensation, it must file a notice on or before the 14th day after it has knowledge of the alleged injury or death or is given notice under Section 12. See Spencer v. Baker Agricultural Co., 16 BRBS 205 (1984); Section 14(d). 

    Why should I read the fine print on the LS-207 Notice of Controversion?  

    The LS-207 will usually state the reasons why the Defense Base Act insurance company is denying your benefits. Read it carefully. Your job is to marshal the evidence in your case to overcome the reason(s) why the insurance carrier is denying your Defense Base Act claim.

     If the DBA insurance company has sent you an LS-207 - Notice of Controversion, you need to make sure you read it and get the documentation necessary to overcome the reasons why the DBA insurance company is denying your claim.

     

    Defense Base Act - Notice of Controversion - what should I do?  Bill Turley explains the Defense Base Act


    "Answers to your Defense Base Act questions in simple, easy to understand English. No legal mumbo-jumbo, lawyer talk. Ever.  


    Defense Base Act Lawyer - Bill Turley - author of the "must have" 5 Star Book - Win Your Defense Base Act Case

    Win Your Defense Base Act Case - Bill Turley

    Why you shouldn’t do anything until you read my book - Win Your Defense Base Act Case

    I strongly suggest that you don’t do anything regarding your DBA case until you read my book. In fact, many of the reviews on amazon.com will tell you the same thing. There is a reason for that. It’s because you need to know about the ways the DBA insurance company is going to try and trick you and trap you before you make one of these case ending mistakes.


    Don’t talk to the adjuster, sign any forms (never sign any releases), give a recorded statement, go to your next medical appointment, go the defense medical examination (also called an IME), attend an informal conference, go to a Labor Market Survey appointment, give a deposition, hire the wrong Defense Base Act attorney,  or do anything else related to your Defense Base Act Case until you read my book - Win Your Defense Base Act CaseAgain, go to the reviews on amazon.com and folks that have been in your position, will tell you the same thing.

    You don't have to believe me - check out the 5 Star reviews on amazon.com

     

    The Defense Base Act insurance company sent me a Notice of Controversion - what should I do?

    This is a very common question. The simple and easy answer:  it's time to lawyer-up.

    It's time to find the very best Defense Base Act Lawyer you can. However, I realize you might want more than advice than "Hire a good Defense Base Act Lawyer." While this is the best advice I can give you - I will also provide some candid insight. Read on.

     

    What should I do if Defense Base Act insurance company stopped my benefits? ....Why is this is no time to dilly-dally?

    You need to immediately take action. Remember, I told you to read the LS-207 and see what the reason is that the DBA insurance company stopped your benefits?  That is a good place to start. You need to obtain evidence to rebut or counter whatever what the DBA insurance company is saying the reason is for cutting off your DBA benefits. 

    You need to get the evidence needed to win your case. Now. 

    For example, a well written doctor’s report, that says your injury/ disability was caused and/or aggravated due to your being overseas.

    Next, you need to immediately request an Emergency Informal Conference.  Then you must have Recommendations issued by the OWCP claims examiner. Then you must file a LS-18 in order to get a trial scheduled. I discuss this in more depth in this article.

     

    What is a “get in line and wait” system with the DBA? 

    The quicker you get your case to the Judge's office and start waiting in line for your trial and then your Decision and Order, the quicker you will get your weekly disability benefits, medical treatment, etc. Sometimes once you get the necessary documentation (i.e., a medical report), the DBA insurance carrier will start providing you with weekly compensation benefits.  Oftentimes, the threat of a trial will get the DBA insurance company to provide benefits or settle cases. This all can take a very long time. Months or even years. Depending.  This is why you need to jump on this right now. 

    Why is it a good time to lawyer-up? 

    If this has happened to you (that is having an LS-207 Notice of Controversion filed by the DBA insurance company) , right about now would be a good time for you hire the best DBA lawyer you can find. Hey, know this - hiring a DBA lawyer doesn't have to be painful or stressful - and it shouldn't be.

    Why do I need to be ready?

    In other words, you need to prepare today for the DBA insurance company cutting off your Defense Base Act weekly benefits or not approving needed medical care. This is the number one reason why you need to lawyer-up before your benefits are cut off. If you get an LS-207 Notice of Controversion in the mail - - don't wait - immediately hire the best Defense Base Act Lawyer you can find. This is how the DBA insurance company tells you they are denying your claim.

    What is the biggest problem with DBA claims (it sucks, but it's the way it is)?

    The biggest single problem with the DBA / Longshore system is that there is no deterrent to prevent insurance companies from denying claims. All the insurance company has to do is to file an LS-207 Notice of Controversion and they can stop providing you benefits. There is nothing to stop them from doing this.

    All the DBA insurance carrier has to do is file an LS-207 Notice of Controversion and there is nothing that you or the Judge can do about it under the law.  They type “Investigating the claim.”  And the law says that is a perfectly fine reason for the DBA insurance company to deny your claim, even if you have the most rock-solid evidence to support your claim.

    It really sucks

    Me telling you that this is the way it is, is far better than me trying to blow smoke up your skirt. My job is to tell you the way it is. I'm all about telling you the truth. And this all sucks. There is no two ways about it. You need to know the way the system works. 

    Don't mistake this harsh reality with me suggesting that you should give up on your case. Far from it.  Your way to fight this is for you to put together (read: marshal) the best evidence you can in order to prevail in your case.

    What do I really need to do? 

    I realize I am being a little simplistic here and I explain all of this in more depth in my 5 Star book - Win Your Defense Base Act Case.

    Click here for the 5 Star  amazon.com reviews of my book.

    What you're going to see is my book is the very best investment you can make in your DBA case.  You can get a copy for free on this website or go to amazon.com and pay for it.  Before you dismiss this idea, go to amazon.com and check out the dozens of 5 Star reviews.

     

    What is some more bad news on the Notice of Controversion?

    Under the law, the DBA insurance company can deny your claim and/or cut off your benefits for just about any reason they want. It doesn't have to be a good reason. Or even a truthful reason. They can and will cut off your benefits at any time. In order for it to be "legal" they just have to file a Notice of Controversion. 

     

    But it's not all bad news 

    Here is some good news. You found this website. You are hopefully going to get a copy of my book. 

    Instead of feeling bad about the way things are, I suggest you start today to fix your case. Oftentimes, even the worst mistakes can be fixed. While we can't always get humpty-dumpty back up on the wall, so to speak - we can get things put together enough for you to either settle your case or prevail at trial. 

    The first thing you need to do is to start working on making your case better. No promises or guarantees, of course. 

     

    Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation. 

  • How do I know if my job is covered by California’s Wage Order Number 9?

    California's Wage Order Number 9 Covers Transportation Industry Employees

    Wage Order Number 9 applies to workers in California’s transportation industry. The term “transportation industry” is used to refer to any business or establishment that carries persons or property from one place to another by road, rail, air or water. It includes all operations and services connected with the transport of persons and property, including storage and warehousing and the parking, repair, maintenance, cleaning, and rental of vehicles.

    Semi-trucks parked.

    Industries Covered by California’s Wage Order Number 9

    Air Transportation

    • Airlines
    • Air delivery services
    • Airplane maintenance companies
    • Baggage handling companies

    Ground Transportation

    • Ambulance services
    • Armored car services
    • Bus lines
    • Car rental agencies
    • Car washes (non-retail)
    • Courier services
    • Garages that are not operated by a car dealer or gas station
    • Garbage collection services
    • Limousine services
    • Logging trucks (commercial)
    • Moving and storage companies
    • Package and parcel delivery companies
    • Parking garages and parking lots
    • Storage garages
    • Taxi services
    • Tire aligning and balancing companies
    • Tour buses
    • Tow trucks
    • Transportation companies
    • Truck rentals
    • Trucking companies
    • Trucking companies (agricultural)
    • Vehicle repair
    • Vehicle maintenance businesses
    • Warehouse and storage facilities

    Water Transportation

    • Boats
    • Boat rentals
    • Cruise ships
    • Ferries
    • Ship rentals
    • Ship repair
    • Stevedores
    • Water taxis

    Rail Transportation

    • Railways

    Airline workers and a jumbo jet.

    Truck drivers, delivery drivers, and commercial drivers are covered by California’s Wage Order Number 9, yet these workers rarely get the rest breaks and meal periods guaranteed by state law. This is because employees don’t always understand their rights.

    If you think you have a California wage and hour case, make sure that you choose an experienced attorney. Attorneys who don’t specialize in truck, delivery and commercial driver law may undervalue your claim because they don’t understand California’s wage and hour law and how it applies to drivers.

     

    Bill Turley on the cover of San Diego Attorney Journal magazine.

     

    Listed as amicus counsel on over 20 California Supreme Court cases 

    Bill is listed as amicus counsel on over 20 California Supreme Court cases and Bill wrote two winning amicus briefs for important recent wage cases before the California Supreme Court.

    Happy clients with their settlement checks from a California unpaid wages case.
    What makes this all worthwhile - when employees receive their checks for unpaid wages!

     

    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

    Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

    Or leave us a message on this web page

    Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.

  • What are the rules governing overtime wages in California?

    Federal Law requires employers to pay overtime wages to any eligible worker who works more than 40 hours in a workweek (168 consecutive hours). Overtime pay is paid at a rate no less than one and one-half times the regular pay rate (time and a half). California overtime rules build on federal laws, but there are significant differences.

    Attorney Bill Turley testifying at the California State Senate

    California's 8-hour Workday

    One important difference between California overtime law and federal overtime law is California’s 8-hour workday. In California, non-exempt employees are entitled to overtime pay when they work more than eight hours in a single day. The worker must be paid time and a half for the extra work.

    There is an exception:  California employers may offer an alternative workweek. For example, a dental office may ask its hygienists to work four 10-hour days instead of five 8-hour days in order to offer evening appointments. Employees must be given a chance to vote on the alternative schedule. The schedule must be approved by two-thirds of the employees in the affected work unit. In this case, the employees could work up to ten hours without receiving overtime.

     

    California's 12-hour Double-Time

    Eligible employees who work more than 12 hours in a single day, are entitled to receive twice their regular rate of pay for those work hours.

     

    California's 40-hour Work Week

    Both federal and state laws require payment of overtime wages to employees who work more than 40 hours in a 7-day work week. This rule applies to any period of 168 consecutive hours.

     

    California's 7th Consecutive Day Rule

    A California employee who works for seven consecutive days in a single workweek, is entitled to time-and-a-half overtime for the first eight hours worked on the seventh workday.

     

    Are You Covered by California’s Overtime Laws?

    There are exemptions to California’s overtime law. Workers who receive a salary that is at least twice minimum wage ($10.50 per hour) are exempt from overtime. The worker must also qualify as an exempt professional, exempt executive, or exempt administrator. Firefighters, police officers, government employees, and certain computer professionals are also overtime exempt.

    If an employee is misclassified as overtime exempt, his employer must pay the employee any unpaid overtime as well as penalties, interest and attorney’s fees.

    If you believe that you are owed overtime, contact a skilled California wage and hour attorney. The attorney will be able to tell you if your employer owes you money.

     

    Happy clients with their settlement checks from a California unpaid wages case.
    Clients that are happy they got their check in a California Wage Case

     

    Representing workers all over California

    Bill Turley has a State-wide practice. While his main office is in San Diego, he handles cases for workers all over California. 

     


    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

    Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

    Or leave us a message on this web page

     

    Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.

  • How are my disability benefits calculated under the Defense Base Act?

     

    Calculating disability benefits under the Defense Base Act

    I give you an insider’s view of Defense Base Act Law, with no sugar coating. No lawyer talk, no double talk. Ever." 

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

    Do I have a disability under the Defense Base Act?

    There are basically two benefits under the Defense Base Act (DBA): medical benefits and weekly disability benefits.  The weekly disability benefits are the money that the DBA insurance company is obligated to pay you if you are disabled. That is, if you have a disability. 

    Under the DBA you don't get money unless you can show that you have a disability.  If you're like most of our clients, you want to get to the bottom line as quickly as possible. I explain this in a lot more detail in this article. But here goes:

    For temporary total disability - you will need to show that you are unable to perform your usual and customary employment as an overseas civilian contractor due to the injuries you sustained overseas. While this sounds simple enough, there is more than meets the eye here oftentimes. 

    For permanent disability benefits under the DBA, it depends on whether you have what the law calls a "scheduled disability" or an "unscheduled disability."  

    For a scheduled disability your "disability" must be an impairment under the American Medical Associations Guide to Evaluation of Permanent Impairment. Unless you are so disabled that you can't work at all - then what matters is your "AMA Impairment Rating".  Whether you can work back at your overseas job is not an issue. All that matters is your AMA Impairment Rating. I go into this more in depth in this article. 

    For a non-scheduled injury,  if you are able to return to your usual and customary overseas employment, then you get no money for your permanent disability under the DBA.  Thus, you will have to show that your injuries prevent you from performing your usual and customary employment overseas.  Disability under the DBA is an economic concept based on a medical foundation. That is, your disability under the DBA for a non-scheduled injury is based upon a wage loss concept. 

    There is a whole lot more wrapped into this. 

    Having your doctor understand what your overseas job is all about is sometimes crucial 

    Remember, in order to get weekly temporary total disability compensation benefits (read: money) under the DBA and permanent disability benefits if you have an unscheduled injury - then you are going to need a medical opinion that states that due to the injuries that you sustained while overseas that you are medically unable to perform you're usual and customary employment overseas. 

    Suppose you're a security consultant that works in a war zone, such as Afghanistan. I have talked to many doctors that seem to think that a "security consultant" is either a person in a suit talking about security or, at best, a mall cop that rides around on a segway going between watching teenagers in the food court and bussing around the parking lot. Seriously. 

    You need to make sure that your doctor understands that you have to wear full kit, back pack, guns and ammunition - and the weight of all of this and that you have to be able to carry your buddy out if that is needed. In other words, your doctor has to understand what it is that you do overseas. Or else, how can the good doctor give an opinion about whether your injuries prevent you from performing your overseas job? 

    Compensation is Based on Average Weekly Wage

    If you are injured while working as an overseas civilian contractor and you're unable to do your job for three days or longer, you are eligible for disability benefits under the Defense Base Act (DBA). These benefits are paid to you 14 days after your employer is notified of your injury. So, make sure you let your employer know that you were hurt and are unable to work. You will need to do this in writing using form LS 201.

    There are four types of disability compensation benefits under the DBA:

    1. Temporary Total
    2. Temporary Partial
    3. Permanent Total with annual increases
    4. Permanent Partial

    Regardless of whether your disability is partial or full, temporary or permanent, your compensation is based on your average weekly wage or AWW. All compensation is subject to a Maximum Compensation Rate, which is adjusted each year on October 1. The current rate is $1,436.48 per week.

    Temporary Total Disability (TTD): Temporary total disability is granted if your injury leaves you completely unable to work for a short period of time. TDD benefits equal two-thirds of your AWW for the period that you are unable to work.

    Temporary Partial Disability (TPD): A person is considered to have a temporary partial disability if he is able to work, but cannot work as many hours as usual or must do a lower-paying job.  TPD benefits are calculated as two-thirds of the difference between the employee’s AWW and his earnings while partially disabled.

    Permanent Total Disability (PTD): Permanent total disability benefits are awarded when an injury leaves you unable to work for an indefinite period of time. PTD calculated as two-thirds of your AWW. Permanent disability benefits are subject to an annual increase based on the U.S. national average weekly earnings. The adjustment is applied on October 1 of each year. Permanent disability benefits are payable as long as the disability continues.

    Permanent Partial Disability (PPD): If you have a permanent partial disability, you are able to work, but you may be unable to do your former job.  There are two ways PPD is calculated. If you have a scheduled disability, you will receive a percentage of your AWW for a predetermined period of time. The percentage is based on your disability rating. If you have an unscheduled disability, you will receive two-thirds of the difference between your AWW and your current earnings.

     

    There is a whole lot to chew on here

    I am giving you an overview here. I suggest you claim your free copy of my book Win Your Defense Base Act Case for more detail on all of this. 

    Win Your Defense Base Act Case - Bill Turley

    5 Stars on Amazon.com

    First of all, calculating your disability under the Defense Base Act is not as straightforward as it may first appear. 

    You are going to need to calculate your average weekly wage. Or AWW.  AWW is probably the most heavily litigated part of the law in this area. Maximizing your average weekly wage (you can read more about it here) is critical for you to get the most benefits as possible under the DBA.

    You are going to need to use the correct compensation rate (you can read more about it here). 

    The DBA is wages driven. Meaning, the higher your wages the more money compensation you are entitled to under the law. Because of this, the DBA insurance company is going to try and calculate your AWW as low as possible.

    Generally, your AWW is going to be 2/3's of your earnings (your wages).


    Scheduled vs. Non-Scheduled

    You have to determine whether you have a scheduled or a non-scheduled injury.

    If you have a scheduled injury, then you multiply your compensation rate times the number of weeks under the AMA Guide to the Evaluation of Permanent Impairment.  A case study is provided below. 

    I suggest that you visit the articles that I have provided links to in order to put all of this together.

    Non-scheduled injuries are based upon a wage loss concept.

     

    Calculating your disability for a scheduled injury - a case study - Steve with a leg injury that occurred in Afghanistan 

    I will provide a case study for Steve, who worked in Afghanistan as a security expert. Steve has a leg injury.  Steve has an AMA Impairment for the lower extremity (read: leg) of 38%. 

    Under the Longshore Act a leg injury is 288 weeks. 

    288 weeks times 38% =  109.44

    You always need to calculate Average Weekly Wage.  Steve has an AWW of  $3,219.45 a week.  Steve has a maximum compensation rate of $1510.76.

    109.44 weeks times $1,510.76 =  $165,337

    Calculating your disability for a scheduled injury - a case study - Tim with a back injury that occurred in Afghanistan

    I will provide a case study for Tim, who worked in Afghanistan as a security consultant. Tim has a back injury, that prevents him from returning back to work overseas. 

    DBA Insurance company's AWW contention

    There is a major dispute over Tim's AWW because he worked overseas for only 23 weeks before he was injured. The DBA insurance company contends that using the 52 weeks before his injury, that Tim has a AWW of  $1,284.25.  

    DBA insurance company's position on extent of disability/ loss of wage earning capacity

    The DBA insurance company gets a Labor Market Survey that indicates that there is suitable alternate employment for Tim in the area where he lives, where Tim can earn $1,034 a week. 

    Thus, using the DBA insurance company's AWW and Labor Market Survey the calculation is as follows: 


     $1,284.25
    -$1,034.00
     $   250.25 

    $ 250.25 times 2/3 =  $166.83 

    Admission of injury 

    The DBA insurance company  "admits" that had a back injury. Meaning that the insurance company takes the position that Tim really was injured. Which is difficult to contend otherwise considering the incident report and all the witnesses that say that they saw Tim get injured when he was diving for cover during a rocket attack and Tim was grimacing in pain dn holding his back immediately afterwards)

    Malingering

    In addition, as usual the DBA insurance company is taking the position that Tim is "malingering."  Which is a fancy term to say that Tim is faking his injuries. The insurance company doctor is suggesting that Tim is not really as injured as Tim's doctor concludes and that Tim is really able, medically, to return to work as a security consultant. Thus, the DBA insurance company's position is that Tim is able to return to his usual and customary employment with no wage loss.

    Unfortunately, as is sometimes the case, there is evidence that supports this malingering contention. Medically, the insurance company reads the back MRI as not "conclusive" that Tim's back is, in fact, painful.  That is the problem with pain. It is difficult to prove pain. The insurance company conducted some sub-rosa videos, which show Tim taking out the trash, doing lifting while working on cars, and working out at the gym. 

    If the Judge credits the insurance company's contention in this regard, Tim will be awarded no permanent disability benefits. 

    Alternate position 

    But if the Judge believes that Tim can't return to work, then it is the DBA insurance company's position that Tim has a loss of wage earning capacity of $166.83 a week. 

    Tim's AWW contention

    Tim contends that only his overseas earnings should be used in calculating his AWW, and thus he has an AWW of $2,854.56. 

    Tim's position on extent of disability/ loss of wage earning capacity

    Tim, of course, strongly disagrees with the insurance company's contentions, on just about every level.  Tim's treating physician has opined that Tim is unable to return to his usual and customary work.  Tim's doctor also agrees that Tim can do limited activities such as taking out the trash and doing limited lifting.  In fact, he suggested to Tim that Tim get back into the gym and try and strengthen himself.  However, all of this is a far cry from working in a war theater, in full kit, and having the ability to carry out your co-workers if someone gets injured.  

    In fact, all of these activities are in the contract for security consultant. 

    It is Tim's contention that the best evidence of his wage earning capacity is the job he is actually doing as a real estate appraiser earning  $725 a week. Tim can demonstrate that he was relentless in looking for work in the area where he lives and $725 a week is good money, considering his education, training, skills and his injuries. 

    Thus, Tim's loss of wage earning capacity is as follows: 


      $ 2,854.56
     -$    725.00
      $ 2,129.56

     $ 2,129.56 x 2/3 =  $1,419.69 

    Thus, Tim's contention is that he is owed $1,419.69 in permanent partial disability benefits 

    Bottom line

    This gives you a good idea of how this all plays out in a DBA case. I have been simplistic in order to achieve clarity. But, I think you get the idea. 

    Need help right now?

    Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text.

     

    Text us at 858-281-8008 - Be sure and put "new DBA case" in your text.

     

    Or you can leave us a message on this web page.

                                                                                                                           

     

    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 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.