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Am I covered under the DBA if my work aggravated a previous injury?

Yes.

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. 

 

You can still get Defense Base Act benefits if you have a prior injury - DBA Lawyer Bill Turley

“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

 

Defense Base Act and prior injuries


Defense Base Act and pre-existing injuries or disability

 

In this article I answer the following questions and/or address the following issues:

The important part is that you tell the truth - why you must ALWAYS disclose prior injuries in your Defense Base Act case

What is the difference between a covered employer and an un-covered employer under the DBA? (This is important)

What is the law for aggravated injury coverage under the Defense Base Act? The Aggravation Rule

What will I have to prove in order to recover DBA benefits if I have a previous injury or condition?

Is there apportionment under the Defense Base Act?

What is the "double recovery rule"?

If I have received a VA Disability award, will the DBA insurance company get a credit for the previous VA disability award?

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....

Don't make common mistakes that can really tank your DBA case

A case study - previous high school knee injury and prior VA Disability Award

 

I suggest that you make sure that you read the preexisting injury case study at the end of this article. 

The important part is that you tell the truth - why you must ALWAYS disclose prior injuries in your Defense Base Act case

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. 

As I explain below, unless you have received permanent disability for your injury under the Longshore Act/ Defense Base Act and/or a state workers compensation system, then you're going to get a DBA permanent disability award for your entire disability.  Thus, you are going to lose money by disclosing the previous injury/ disability. 

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 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 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 I 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 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

What is 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 under either the Longshore Act/ Defense Base Act or a state workers' compensation award, then the DBA insurance company will get a credit for this previous award.  

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).

 

If I have received a VA Disability award, will the DBA insurance company get a credit for the previous VA disability award? 

No.

The only credit under the DBA is for a previous permanent disability award under the Longshore Act/ Defense Base Act or a state workers' compensation award.  The DBA insurance company will not get a credit for a previous VA disability award. Todd Shipyards Corp. v. Director, OWCP, 848 F.2d 125 (CA9 1998).

In other words, you can get a "double-recovery" for a DBA permanent disability even if your DBA injury aggravates your previous VA Disability Award injury. Todd Shipyards Corp. v. Director, OWCP, 848 F.2d 125 (CA9 1998).

 

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 than 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 your 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 are 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 pre-existing 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 lay all of this out in my 5 Star book - Win Your Defense Base Act Case.  

Win Your Defense Base Act Case - even if you have a pre-existing condition or injury

I suggest that you check out of of the 5 Star reviews on amazon.com

You can either buy my book on amazon.com or get a free copy of my book - Win Your Defense Base Act Case here

A case study - previous high school knee injury and prior VA Disability Award

Chris is an overseas civilian contractor that is working in Afghanistan as a security consultant. Chris has a very serious knee injury when he falls into a ditch while out on patrol.  Chris receives two knee surgeries and has an 42% AMA impairment of the left lower extremity (left leg).  Chris had a previous high school left knee injury. Chris injured his left knee while he was in the U.S. military.  Chris had knee surgery. Due to the service related knee injury, Chris received a VA Disability Award for a 10% disability to his left knee. 

Chris' doctor opines that that his current disability is, in part, due to the arthritic changes in his knee and the military left knee injury. 

The DBA insurance company sends him to a doctor that opines that Chris has a 35% AMA impairment of the left knee. The insurance company doctor apportions 30% of  the disability to the high school football injury and the military injury. 

The DBA insurance company adjuster tells Chris that the DBA insurance company should get a credit and reduction due to his previous high school injury and VA Disability Award. 

Chris lawyers-up.  His lawyers explain to him that the DBA insurance is simply wrong.  There is no "credit" or "apportionment" due to the high school football injury, the VA disability award and/or the arthritic injuries to his left knee. 

The case is settled for the entire left knee disability being compensable under the Defense Base Act.  The parties settle on a 40% AMA impairment of the left leg. There is no credit and/or apportionment for a pre-existing injury and/or pre-existing disability. 

 

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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, case studies, 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. Every case is different.
 
William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”