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Defense Base Act Lawyer Bill Turley - author of the 5 Star book - Win Your Defense Base Act Case
Will the Defense Base Act insurance company pay for home modifications under the Defense Base Act? ....
How do I make the DBA insurance company pay to modify my home?
If your an overseas civilian contractor that has been seriously injured, you may require home modifications. Your case falls under the Defense Base Act. I call it a "case" because that is what it is - a legal case.
You will need the Defense Base Act insurance company to approve and pay for your home modifications. In this article I discuss the law regarding DBA home modifications and I point you to a step by step plan on how to request the home modifications and what you should do if the home modifications aren't approved and paid for by the DBA insurance company. I also discuss a recent Benefits Review Board case ( the BRB, one of the Court of Appeals in a DBA case), concerning home modifications.
Defense Base Act - Home Modifications Due to Injuries/ disability
Home modifications due to disability include:
Wheelchair ramps, grab bars, railing, plumbing fixtures, stair-lifts, electric stair lifts, home elevators, walk-in or wheelchair accessible bathtubs, showers, widening of internal spaces such as landings or doorways to accommodate for wheelchair access, height of counter tops, doorknobs, lever handle pulls, intercoms, suitable beds, non-slip surfaces, handrails, porch lifts or other lifts, disability friendly flooring, modifications for service animals, electrical controls, lighting controls, location of switches, door locks, smart home technology, longer pull chains ceiling fans, remote control devices, door locks, accessible bathrooms, toilets, shower, shower chairs, bath, sinks, accessible kitchens, sinks, cabinets, clearing pathways, removing tripping hazards, smooth walkways, additional lighting, ovens closer to the floor, dishwashers, appliances and windows.
Home modifications for folks that are visually impaired, include:
Safe flooring, stoves, tactile markers, textured upholstery, embossed letter stickers, braille labels, speech synthesis, service dogs, self feeding systems, computer software, etc.
In addition, you may need car modifications, van modifications, vehicle modifications.
The Defense Base act law regarding medical treatment: reasonable and necessary
The Defense Base Act is an extension of the Longshore and Harbor Workers Compensation Act (LHWCA). Thus, much of the law regarding case procedure, medical treatment, and disability is contained in the LHWCA and LHWCA case law.
Section 7(a) of the Act states:
“[t]he employer (read: DBA insurance company) shall furnish such medical, surgical, and other attendance or treatment . . . for such period as the nature of the injury or the process of recovery may require.” 33 U.S.C. §907(a).
In order for a medical expense to be assessed against the employer, the expense must be reasonable and necessary for treatment of the work injury. Ramsey Scarlett & Co. v. Director, OWCP [Fabre], 806 F.3d 327, 49 BRBS 87(CRT) (5th Cir. 2015); Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996).
The Defense Base Act law regarding home modifications
Reasonable and necessary medical expenses may include house modifications. The court in Dupre approved modifications to the claimant’s house necessitated by his work-related disability. This included ramps, widened doorways and accessible plumbing fixtures. The court held that these home modifications are covered under Section 7. Dupre v. Cape Romain Contractors, Inc., 23 BRBS 86 (1989).
The Board has also affirmed a finding that modifications to a claimant's home by his work injury are covered under Section 7 of the LHWCA, because (1) the modifications qualified as "apparatus" and (2) they also constituted "medical ... and other attendance or treatment" within the meaning of Section 7. Dupre v. Cape Romain Contractors, 23 BRBS 86, 94 (1989).
In Dupre, the claimant was a paraplegic with total lack of sensation from the waist down, and the modifications, which included ramps, widened doorways, and handicapped-accessible plumbing fixtures, were necessary for claimant to utilize the bathroom and even to move about his home. The Board agreed with the judge that interpreting the medical benefits section of the LHWCA to exclude these items from coverage would not promote the purposes of the LHWCA. Dupre v. Cape Romain Contractors, 23 BRBS 86, 98, 95 (1989).
A recent case regarding home modifications
Claimant (this is the person bringing the claim - this is what you will be called, when you bring your DBA claim) underwent numerous surgeries and was very seriously injured and he was confined to a wheelchair.
Claimant was living in a home that he requested the employer (usually this is the insurance carrier, but in the court decisions, it almost always refers to “employer”) provide modifications to the home due to his being disabled and confined to a wheelchair. For example, wheelchair ramps, grab bars, bathroom modifications, etc.
The home modification due to the Claimant’s disability totaled over $35,000 (this was the first home).
Then, the living conditions in the home became extremely strained. Claimant bought a new home and moved to the new home and requested modifications to the new home. We will call it the second home.
The Employer claimed a “credit” of $35,000 for the second home modifications. That is, the Employer claimed a credit on any modifications for the second home, because the $35,000 Employer spend on modifying the first home. Meaning, the Claimant would have to pay the first $35,000 on the second home modification because the employer had already spent $35,000 modifying the first home.
The Judge in the case agreed that the employer should get a credit for the $35,000 the employer spent on modifications to the first home. The BRB reversed the Judge’s award to the employer of $35,000 credit for the money spent on modifying the first home.
Further the Claimant challenged the Judge’s decision to credit the home modification plan submitted by the employer over the plain that Claimant submitted. The judge found the employer’s plan to be more “reasonable, appropriate and necessary” than claimant’s plan. Claimant’s plan cost $124,000 to $165,000 and employer’s plan cost $44,100.
The BRB reversed the Judge and held that the DBA insurance carrier does not get a “credit” for the home modifications at the first home. Under the circumstances, it is reasonable for the Claimant to move to a new home and the DBA insurance company must pay for the modifications.
The BRB remanded the case back to the District Director to determine the nature and extent of the home modifications in the District Director’s discretion. Teer v. Huntington Ingalls Incorporated (5/2019).
Two takeaways from this case
First, as is stated herein above, home modifications that are “reasonable, appropriate and necessary” are benefits allowed under the DBA.
Second, if you have to move to a new home and the DBA insurance company has already spent money to modify your original home, the DBA insurance carrier will have to pay to modify your new home, if you have a good reason for having to move.
The Judge vs. the District Director?
Under the DBA, there is sometimes confusion as to who should be addressing your need for medical care/ home modifications. That is, whether it's Judge or the District Director.
The BRB rejected the Director's contention that only the District Directors have authority to determine was is appropriate medical care. When there are disputed issues (read: the Claimant and the insurance carrier disagree as the need for specific care or treatment for the injury); it must be referred to the Judge for resolution of the factual issue. Sanders v. Marine Terminals Corp., 31 BRBS 19 (1997).
Thus, issues regarding the character and sufficiency of necessary home modifications are within the purview of the district director. McCurley v. Kiewest Co., 22 BRBS 115 (1989); see also Jackson v. Universal Maritime Service Corp., 31 BRBS 103 (1997) (Brown, J., concurring).
Stated differently, the District Director is charged with determining the scope of any modifications to your home when there is no dispute that you require home modifications. Stated differently, if there had been a dispute that on whether or not Claimant actually needed home modifications, the Judge would have decided the issue. But since there was no dispute Claimant needed home modifications, then it became an issue for the District Director to address.
If there is a dispute as to whether you need home modifications or not, then the Judge will need to decide the issue.
What should I do if need home modifications due to my DBA disabilities?
First, you will need a doctor to recommend the home modifications. While a note written on the doctors stationary or prescription pad will do, it is always better if the the doctor gives an explanation of why you need the home modifications. The more complete the description of the home modifications the better.
If you need to show the doctor this web page, that is ok also.
The more information your doctor provides on the front end, the more likely you will get it approved by the DBA insurance carrier, the District Director and/or the Judge in you case. More is usually more here. Meaning, a well reasoned report that indicates why the home modifications are related to your DBA / overseas injury and why you need the home modifications due to your disability.
Second, you need to request the home modifications be approved by the DBA insurance carrier. This is very important. Even if the DBA insurance carrier isn’t paying for the home modifications initially - you should always request the home modifications - in writing (you need it as evidence in your case). The request for approval should be before the actual home modifications are performed.
Here is an example:
Enclosed within is a medical report by Dr. Jones where he states I need the home modifications due to the injuries/ disabilities, under the Defense Base Act, that are related to my **** injury incident in Afghanistan.
Please approve and pay for these home modifications.
What should I do if the DBA insurance company won’t pay for my home modifications?
As I mentioned earlier in this article, home modifications are considered medical treatment under Section 7 of the LHWCA.
In this article on medical treatment, I give you a step by step approach to what you should do if the DBA insurance company won't pay for your medical treatment.
Always tell the truth
When you bring a DBA case, nothing is more important than your credibility. Always tell the truth
What you are going to see is that the book Win Your Defense Base Act Case 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.
Win Your Defense Base Act Case
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Be sure to check out the 5 Star reviews of the book 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 and/or are not as successful as folks might have hoped for.
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different.