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Defense Base Act: Frequently Asked Questions

Find answers to your questions about the Defense Base Act here.

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  • How far could I travel for a Defense Base Act medical exam?

    Injured employees shouldn’t be asked to go out of their way to see the insurance company doctor.

    Unfortunately, insurers routinely ask employees to do just that by scheduling a Defense Base Act medical examination a long distance from the employee’s home.

    By law, the employee must attend a special medical examination in a place designated by the employer. The law does provide that the place of examination be a “reasonable” distance for the employee to travel, but the definition of “reasonable” can vary widely.

    Factors That Can Affect Traveling to a Defense Medical Exam

    Employers and insurers know that making a long trek to a medical exam will be difficult for the employee, and often use this to their advantage. If the employee does not attend the exam, he will be barred from receiving benefits, saving the company money. If the employee is able to make the trip outside his geographic area to the doctor’s office, the insurance company can argue that the employee’s injuries must not have been that bad.

    There may be a way to avoid traveling long distances to your DBA examination. It is important to consider the following before accepting an examination date:

    Method of Travel:

    You cannot be asked to travel long distances if doing so would aggravate your injury. If your condition prevents you from traveling in a plane or driving for long periods, the judge in your case may instruct the insurer to choose a location closer to your home.

    Reimbursement: 

    The insurance company is responsible for paying the costs of your examination, as well as the costs of travel to and from the appointment. Sometimes this is paid in advance, but it can also be reimbursed if the employee fronts the cost. If an employee is under significant financial hardship and the insurance company will not pay travel expenses up front, the employee may be able to appeal to a judge for a closer appointment.

    Hiring an attorney: 

    If there is not a sufficiently good reason for you to travel to the doctor that the insurer has chosen, your attorney can fight to get the appointment rescheduled for you. Your lawyer can also attend the appointment with you to make sure your rights are respected.

     

    It is vital that claimants have as much information as possible in order to win compensation for their injuries. Click here to read through our free book on DBA claims, DBA Resource Guide.

  • Should I bring a lawyer to my Defense Base Act medical exam?

    It is a good idea to bring someone with you to your Defense Base Act medical examination.

    Although these appointments are referred to as “independent” medical exams, they are paid for by the DBA insurance company and you will be examined by a doctor of their choice—and the point of the exam is to find ways to deny your claim. While you must attend the appointment in order to have your benefits approved, taking an attorney with you can help your case a great deal.

    What a Lawyer Does During Your Medical Exam

    Your attorney can be helpful to your case even before you attend the exam. Your lawyer should look over any paperwork you have been asked to complete as part of the exam and advise you on what you should and should not bring to the appointment. He or she will also give you a rundown of what will happen during the exam and offer advice on each stage of the appointment.

    The most helpful things an attorney can do during a DBA medical exam include:

    Prevent You From Helping The Defense Case:

    A Defense Base Act attorney should be familiar with common tactics DBA doctors use to get evidence that hurts your case. Your attorney should sit right next to you during the exam and answer any questions that are put to you. If the doctor asks leading questions or makes assumptions, your lawyer can ask the doctor to rephrase or clarify any statements he makes.

    Take Detailed Notes:

    It can be hard for claimants to remember everything that happens in an IME because they are focused on the physical aspects of the examination. Your attorney can do some behind-the-scenes work that can later shed light on your case, including timing each portion of the examination, setting up a tape recorder or taking a video of the entire exam, taking notes on the defense doctor's body language and the types of tests administered, and making notes to investigate the doctor’s claims later.

    Intervene On Your Behalf:

    Your attorney should know what is and is not permitted in an IME in California. For example, you cannot be asked to undergo any test or procedure that causes you pain. You also do not have to submit to any testing (such as an x-ray) that was not previously agreed to before the exam.

    It is vital that claimants have as much information as possible in order to win compensation for their injuries. Click here to read through our free book on DBA claims, DBA Resource Guide.

  • What is constructive discharge?

    You may know that employees who quit or resign from their jobs are not eligible to collect unemployment benefits. But what about employees who were forced to quit due to intolerable working conditions? Will these employees be forced to continue working in a hostile workplace because they are unable to provide for their families?

    California labor laws recognize that it would be unfair to punish workers whose resignations are in name only. 

    The laws include a provision of “constructive discharge” (also called constructive termination), allowing that any employee resignation that is brought on by an intolerable work environment is, in reality, a termination.

    How to Prove a Constructive Discharge Case

    A constructive discharge classification is not only vital for securing unemployment benefits, it is also necessary for employees to retain the right to file a wrongful termination lawsuit. The California Supreme Court has ruled that constructive discharge has occurred if an employer’s conduct would force any reasonable person to resign, making the resignation coerced.

    There is no single measure of constructive discharge, but proving your case typically includes:

    Employer Knowledge:

    You must be able to show that your employer either created intolerable work conditions or knowingly permitted them to continue. The employer must also be aware of the impact that the adverse working conditions could have on an employee.

    Nature of The Conditions:

    The conditions under which you resigned must have existed beyond a single instance, and must have been sufficient to impede the motivation of a competent and reasonable employee to remain at work and earn a living. Examples may include yelling, berating, intimidating, or bullying an employee.

    Conditions at The Time of Resignation:

     All constructive discharge cases require that the intolerable work conditions must have been present at the time of the employee’s resignation.

     

    Constructive discharge may be included in a discrimination lawsuit, and may allow for an employee to recover additional damages for suffering through hostile workplace conditions. If you have already quit your job under extreme duress, you should speak to an employment lawyer as soon as possible to retain your right to benefits and a wrongful termination case. Please use our website to learn more about California employment law violations.

  • Can I get pain and suffering in a Defense Base Act claim?

    Depending on Circumstances, Yes or No

    The Defense Base Act (DBA) offers many protections for civilian contractors working overseas. One of these is that workers do not have to prove fault or negligence of their employers in order to get injury compensation. They just have to prove that their injuries were caused or worsened by their employment.

    However, this guarantee of coverage comes at a price. By agreeing to pay the medical costs of a worker’s injury, employers cannot be sued for additional costs of an accident, such as lost wages and pain and suffering.

    Ways to Collect Pain and Suffering in a DBA Case

    Although the DBA prevents employees from getting the full costs of an injury from an employer, there are still ways to receive compensation. Depending on the circumstances of your case, the law may allow you to file a case against:

    Second Parties:

    Your employer can be named in a lawsuit if you are pursuing a case against someone else implicated in your injury. For example, if your injury occurred due to the recklessness or negligence of another worker, the employer could be named as a second party to the civil lawsuit.

    Third Parties:

    Employees can file civil suits involving someone other than your employer. If any or all parties are found to be at fault, you can recover pain and suffering, lost earnings, and damages for permanent disability or loss of enjoyment of life.

    An Uninsured Employer:

    In most cases, DBA insurance coverage prevents workers from filing injury lawsuits against their employers. But if an employer, contractor, or a subcontractor fails to secure DBA insurance coverage, employees can sue the employer for civil damages. In these cases, employers cannot defend the claim based on your negligence or your assumption of risk in taking the job.

    It is important to understand how the DBA works, what coverage you are entitled to, and common ways these claims are denied in order to get fair payment. For help on gathering evidence and other ways to build your strongest case, look through our free book, DBA Resource Guide.

     

    Need Help Today?

    Give us a call. (619) 234-2833

     

    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.

  • 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.

    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.

     

    Need help right now?

    Call us today at (619) 234-2833

     

  • 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.

     

     

    Need Help Today?

    Give us a call at (619) 234-2833

     

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

    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.  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."

    Based on having represented overseas civilian contractors for years and having 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.

    "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.

    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.

    Your compensation will also depend 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.

     

    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 619-234-2833.

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

    What Is an 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.

     

    Read the fine print

    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.

     

    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.

     

    This is no time to dilly-dally

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

    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.

     

    A “get in line and wait” system

    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.

    If this has happened to you, 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.

    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.

    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 that there is nothing to stop them from doing this.

    All the DBA insurance carrier has to do is file an LS-208 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 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.  You're way to fight this is for you to put together (read: marshal) the best evidence you can in order to fight this.

    What you 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.

     

    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?

     

    Compensation is Based on Average Weekly Wage

    If you are injured at work and 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 2/3 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 2/3 of the difference between your AWW and your current earnings.

    Determining the appropriate disability compensation can be difficult. If you don’t agree with your employer’s assessment of your disability, you should seek a second opinion. The Defense Base Act attorneys at The Turley & Mara Firm can help. We offer a FREE consultation to discuss your case.

     

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