You are entitled to DBA benefits even if you have a pre-existing injury or condition.
You can still get DBA benefits if you have a prior injury.
Under the Defense Base Act (DBA), civilian contractors are owed benefits for any injury that results from or is exacerbated by your being overseas.
You are still entitled to Defense Base Act benefits even if you have a previous injury. As long as your DBA injury aggravated and/or contributed toward your current injury, then you are covered under the DBA.
“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
The important part is that you tell the truth
Some folks are reluctant to disclose that they have had a previous injury -a significant injury or even a more minor injury. They are probably concerned that if they reveal they had a previous injury, then they will be unable to receive DBA benefits. This is a mistake. Usually a BIG mistake.
When people fail to disclose that they have had a previous injury, medical condition and/or disability, then they won't be credible to the Judge. It is always best to be honest about a previous injury.
What is the difference between a covered employer and an un-covered employer under the DBA? (This is important)
A covered employer under the DBA is an employer that is covered under the DBA. That is an overseas civilian contracting company. If your previous injury was with a covered employer (meaning it happened while you working as an overseas civilian contractor); then your injury falls under the last responsible employer rule.
If your previous injury was not with a covered employer (meaning your previous injury did not occur while you working as an overseas civilian contractor); then your current employer (read: the employer that you suffered your DBA injury with); is responsible for your entire disability and all of your medical treatment.
For more on this, I suggest you read this article on the last responsible employer rule.
What is the law for aggravated injury coverage under the Defense Base Act? The Aggravation Rule
There is still coverage under the DBA if you aggravated a prior condition or prior injury.
Under the Aggravation rule, if you have a previous injury, disability and/or medical condition and you aggravate it due to your being overseas - then the entire injury, disability and/or medical condition is compensable. Cordero v. Triple A Mach. Shop, 580 F.2d 1331, 1337 (1978).
The exception to this rule is the "double recovery rule." See below.
The Ninth Circuit has held that the last responsible employer rule should be applied only in occupational disease cases, and the aggravation rule in successive injury or cumulative trauma cases. Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 623-24 (9th Cir. 1991).
What will have to prove in order to recover DBA benefits if I have a previous injury or condition?
In order to recover DBA benefits, all you have to prove is that you had an increase in symptoms due to the new DBA injury. That's it.
In other words, you have to prove that after you had your DBA injury, the part of your body that you injured hurt more than it did just before you were injured.
Look at it this way - why would you fail to reveal that you had a previous injury if all you have to prove in order to receive DBA benefits is an increase of symptoms?
Is there apportionment under the Defense Base Act?
No. Under the DBA you don't apportion part of your disability or part of your medical treatment between different employers. If your previous injury, disability and/or condition was due to your working with an uncovered employer (see above); then all of your disability benefits and medical treatment are owed by your DBA employer. Cordero v. Triple A Mach. Shop, 580 F.2d 1331, 1337 (1978); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1286 (1983).
If your If your previous injury, disability and/or condition was due to your working with an covered employer (see above); then all of your disability benefits and medical treatment are owed by one employer and which employer that is, is determined by the last responsible employer rule.
The double recovery rule
The exception to all of this is the double recovery rule. If you have received compensation for a previous injury, disability and/or medical condition. for any injury which was a partial cause of the underlying disability, the last aggravating employer or carrier may be entitled to credits for these prior awards. There is no credit, however, for any previous injury for which you may have been entitled to receive an award, but in fact did not get it. 33 U.S.C. § 3(e); Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986) (en banc), aff'g 751 F.2d 1460 (5th Cir. 1985), aff'g 15 BRBS 386 (1983); Bracey v. John T. Clark & Son of Maryland, 12 BRBS 110 (1980).
What if I have an injury after my DBA injury (that is an injury that is not covered by the DBA)? Supervening injuries, intervening injuries and subsequent injuries....
What happens if you have a later or subsequent injury by a non-covered employer or by, for example, an automobile accident?
Here, the law may be different for occupational diseases that it is for "injuries."
The Ninth Circuit has held that for occupational disease cases (where the last responsible employer rule applies) later exposure in employment not covered by the DBA does not relieve the last longshore employer of liability. Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir. 1983).
The law is not quite so clear for "injuries." Like for example, a back injury.
As one court observed:
"[a] subsequent injury is compensable if it is the direct and natural result of a compensable primary injury, as long as the subsequent progression of the condition is not shown to have been worsened by an independent cause." Miss. Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 1000 (5th Cir. 1981). We apply a liberal causation standard when determining the coverage of initial and subsequent injuries. Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th Cir. 1983)."
Ramsay Scarlett & Co. v. Dir., OWCP, 806 F.3d 327, 333 (5th Cir. 2015)
Which sounds pretty good for you. But wait, there's more.
What is this "independent cause" that the court was talking about? Like you have a DBA back injury and you get into a vehicle accident after you get home and your back injury is worsened? What then? What if you back condition was worsened by the vehicle accident? Is that an independent cause?
“[T]o receive benefits under the LHWCA for a subsequent injury, the claimant must present substantial evidence that the secondary condition "naturally or unavoidably" resulted from the first covered injury, as is required by the statute.”
Amerada Hess Corp v. Dir., OWCP, 543 F.3d 755, 763( 5th Cir. 2008)
Thus, if you have a DBA back injury (or any orthopedic injury, for example) and then you have a later (subsequent) injury - for example a serious vehicle accident); and your back condition was worsened, you can expect the employer/ DBA insurance carrier to argue that you ar no longer eligible for DBA medical and disability benefits.
Don't make common mistakes that can really tank your DBA case
Not telling your doctor or the DBA insurance company about preexisting injuries, disability and/or medical conditions is a common mistake that well meaning folks make that can really mess up their DBA cases. This is just one of the many mistakes that I talk about in my 5 Star book - Win Your Defense Base Act Case.
The DBA insurance companies are hoping that you will fall for one of their tricks or traps - like not disclosing a prior injury or medical condition.
My office gets contacted every month by folks just like you that either didn't get the "memo," so to speak or unfortunately, ignored it, because they thought they would be good.
Sometimes, in spite of all this we can "fix" their case. Sometimes we can't. Either way, all of the negative issues with your DBA case will lessen the settlement value of your case and/or increase the odds that you will not win your case at trial.
The good news is that most of these mistakes are avoidable, if you spot them and know how to deal with them. I explain all about this in my book - Win Your Defense Base Act Case.
Thus, the first step you need to take is to get, then read my book, Win Your Defense Base Act Case. In the book, I explain the steps you need to take to not fall for their tricks and traps.
I suggest that you check out of of the 5 Star reviews on amazon.com.
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This article isn't legal advice
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, or your particular case/ situation. Every case is different. There are any number of reasons why DBA cases are not won or folks don’t get the result they were hoping for.