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How to calculate permanent disability for leg, knee and foot injuries under the Defense Base Act

Defense Base Act leg injuries and foot injuries - disability

“When I seek out professional advice, I want honesty, I want frankness, I want advice straight-up, with no B.S. So should you.”

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

 

Defense Base Act leg injuries, knee injury, ankle injury, foot injuries

Defense Base Act - lower extremity injuries

If you have a serious leg injury, knee injury and/or a foot injury while you're an overseas civilian contractor - then you need to know how to calculate your permanent disability and/or how to value your Defense Base Act case.  I explain these concepts and I provide you with legal citations/ authority for support. 
 

In this article, I address the following issues: 

                The Defense Base Act

                Nothing is more important that your credibility

                Scheduled injuries vs Unscheduled injuries under the Defense Base Act

                A leg injury is a scheduled injury under the Defense Base Act

                Knee injuries and ankle injuries under the DBA

                Your compensation rate

                Leg injury permanent disability calculations under the Defense Base Act

                The PEPCO exception

                AMA Guides to the Evaluation of Permanent Impairment

                It all comes down to your medical evidence

                You have the burden of proof

                You aren’t going to get a “do-over”

                What all this means

                An illustration - how to calculate your permanent disability for a leg injury under the Defense Base Act

                Can I get money for pain and suffering if I have a scheduled injury under the Defense Base Act?

                Foot injuries under the Defense Base Act

                An illustration - how to calculate your permanent disability for a foot injury under the Defense Base Act

 

              

The Defense Base Act

 
The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act. (Longshore Act). Thus, much of the substantive law and case law for the DBA is actually part of the Longshore Act.
 

Nothing is more important that your credibility

 
I can’t say this enough. At almost every phase of your case, your credibility is vitally important. I can’t over-stress how important it is for you to tell the truth about everything.
 
You have a court case. If the Judge doesn’t believe you, then you will either lose your case, or not get the result you’re looking for.
 
Don't start thinking, "I have a knee injury, I'm entitled to DBA compensation, I telling the truth, I don't have to worry about this. I'm good." Not. The DBA insurance company is all about setting traps and tricks for you - that will tank your credibility.  That's one of the main reasons I wrote, the 5 Star book - Win Your Defense Base Act Case.  
 
Two quick examples, you are going to need to prove that you were injured overseas and your level of permanent disability.  The DBA insurance company doctor is going to say, that you're not putting for maximum effort during their medical exam of you. Thus, you either have no permanent impairment or a very low one. If the Judge doesn't believe you - - this can cost you ten's of thousands of dollars. Happens all the time.
 
Question is, are you going to do what it takes to keep it from happening to you? 


Scheduled injuries vs Unscheduled injuries under the Defense Base Act

 
There are two different kinds of injuries under the Defense Base Act  - there are scheduled injuries and unscheduled injuries. The Longshore Act has a list of what are called scheduled injuries.
 
Generally, with a scheduled injury under the DBA, you’re entitled to only a specific number of weeks of compensation. Unless you can’t work at all due to your injuries. This is rarely the case with scheduled injuries.
 
With a non-scheduled injury, if you have a loss of wage earning capacity, you can get weekly disability benefits for the rest of your life.
 
"Non-scheduled" compensation” (also called “unscheduled”), is based on your actual loss of wage-earning capacity and, like total disability, is compensated at two-thirds of the difference between your average weekly wage at the time of injury and your post-injury wage-earning capacity.  § 908(c)(21).

These scheduled amounts compensate for a presumed (not actual) loss of wage-earning capacity. Korineck v. Gen. Dynamics Corp. Elec. Boat Div., 835 F.2d 42, 43-44 (2d Cir. 1987).
 

A leg injury is a scheduled injury under the Defense Base Act

An leg injury is a scheduled injury under the Defense Base Act. These are also called “lower extremity injuries.”
 
Under the Longshore Act a “leg lost” is 288 weeks of compensation. Section 908(c)(2).
 

Knee injuries and ankle injuries under the DBA

 
If you have a knee injury, then you will have a "leg injury." Similarly, ankle injuries are considered leg injuries.  Thus, you will use the 288 weeks of compensation in determining your permanent disability if you have a knee or ankle injury. 
 

Your compensation rate

Currently, compensation for total disability is two-thirds of your average weekly earnings, up to a current maximum of $1,560.08 per week. This maximum is adjusted every October. Your maximum rate will depend on your date of injury.
 
If you worked overseas for less than a year before you were injured, you can expect one of the big issues in your case to be your average weekly wage and corresponding compensation rate.

Leg injury permanent disability calculations under the Defense Base Act

As previously mentioned, the loss of a leg under the schedule entitles a claimant to 288 weeks of compensation at two-thirds of his average weekly wage. 33 U.S.C. § 908(c)(2).  If your leg is amputated, then you’re entitled to 288 weeks of compensation.
 
For a partial loss of the use of a leg, which includes knee injuries, the number of weeks is multiplied by the percentage of loss. § 908(c)(19). Thus, a claimant with a 50% loss of the use of his leg would receive compensation for 144 weeks.
 
50% x 244 weeks = 144 weeks of compensation
 
Here is the calculation that you will need in order to determine your permanent disability under a scheduled injury, such as a leg injury.
 
CR - compensation rate
 
CR x % of disability under the AMA Guides x 244 weeks = permanent disability award
 
I will give you examples of this later in this article.


The PEPCO exception

 
A claimant who is permanently partially disabled due to a scheduled injury cannot choose to be compensated for his actual loss of wage-earning capacity under § 908(c)(21), even though the compensation under § 908(c)(21) potentially may be greater than the compensation paid under the schedule. See Potomac Electric Power Co. [PEPCO] v. Dir., OWCP, 449 U.S. 268, 270-71, 101 S. Ct. 509, 66 L. Ed. 2d 446 (1980) (holding that a claimant who was permanently partially disabled due to a scheduled injury could not choose to be compensated for his actual loss of wage-earning capacity under § 908(c)(21) rather than being compensated for his loss as provided by the schedule). Huntington Ingalls Indus. v. Eason, 788 F.3d 118, 122 (2015).

However, a worker entitled to permanent partial disability for an injury arising under the schedule may be entitled to greater compensation under Sections 8(a) and (b) by a showing that he is totally disabled.  Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 277 n.17, 14 BRBS 363 (1980) (herein, "PEPCO"); Davenport v. Daytona Marine & Boat Works, 16 BRBS 196, 199 (1984).
 
Unless the you’re totally disabled, however, you are limited to the compensation provided by the appropriate schedule provision.  Winston v. Ingalls Shipbuilding, Inc., 16 BRBS 168, 172 (1984).
 
With the PEPCO exception of total disability, economic factors are not to be taken into account in calculating disability benefits for a scheduled injury.  Rowe v. Newport News Shipbuilding and Dry Dock Co., 193 F.3d 836 (4th Cir. 1999).
 
Stated differently. If you have a scheduled injury - such as a knee injury (leg injury), then your permanent disability is calculated through the use of the schedule. I give you some illustrations of how this calculation is done, later in this article.
 
However, under the PEPCO U.S. Supreme Court case, if you have a leg injury and you’re permanently and totally disabled (meaning that you are unable to return to your usual and customary overseas employment due to your leg injuries and the DBA insurance company has failed in their burden to demonstrate suitable alternate employment for you); then you are entitled to a permanent and total disability lifetime payment at your compensation rate.

 

AMA Guides to the Evaluation of Permanent Impairment

Under the DBA, in order for the Judge to consider your doctor’s opinion on your level of permanent disability, you are going to need your doctor to evaluate your permanent impairment by using the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition.
 
I have seen way too many cases where the injured claimant and/or their attorney either didn’t get this memo or chose to ignore it. Bad decision. On every level.
The long and short of it is this. You must have medical evidence evaluating your injury pursuant to these AMA Guides. Otherwise, you lose. Do not pass go. DO not collect $200.
 
Except, we’re potentially talking about a lot more than $200.

 

It all comes down to your medical evidence

In order to prevail in your Defense Base Act leg injury, knee injury, ankle injury case you’re going to need persuasive medical evidence. Too often I see medical reports that state medical opinions as conclusions. Instead, you want and need medical reports that explain the basis for an opinion. Specifically the medical basis for your permanent disability.
 
I discuss an actual case later in this article which illustrates what can happen if you don’t have the right medical evidence.


You have the burden of proof

It is claimant’s burden (read: your burden) to establish the extent of his or her  disability.  Pisaturo v. Logistec, Inc., 49 BRBS 77 (2015).
 
This means it’s your job to show up at court with a well written report pursuant to the AMA Guides.
 
The Judge gets to make the call concerning your permanent disability, if any.
 
In determining the degree of permanent impairment for a scheduled injury other than hearing loss, the administrative law judge is not bound by any particular formula. Pisaturo v. Logistec, Inc., 49 BRBS 77 (2015).
 
In other case illustrating that the Judge has wide latitude to call it the way they see it, so to speak. The administrative law judge is afforded considerable discretion in determining the weight to be accorded to medical opinions, and the Board must accept the rational inferences and factual findings of the administrative law judge which are supported by substantial evidence.  See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Ward, 326 F.3d 434, 37 BRBS 17(CRT) (4th Cir. 2003); Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378, 380-81, 34 BRBS 71, 72(CRT) (4th Cir. 2000), cert. denied, 531 U.S. 1112 (2001).
  
In a claim for benefits for permanent partial disability of the right leg, a claimant's physician rated his AMA disability as 17 ½ percent and two other physicians found no permanent loss of use of the leg as the claimant had no loss of motion and no ligament instability.  The judge awarded five percent disability for the claimant's "slight" permanent injury to his right leg due to the tenderness in the knee.  The judge selected that rating because he found "no loss of flexion or rotation and continued ability to perform his work."
 
The Board affirmed, holding "the Act does not require adherence to any particular guide or formula" and that the "administrative law judge was not bound by the doctor's opinion nor was he bound to apply the Guides or any other particular formula for measuring disability."  Mazze v. Frank J. Holleran, Inc., 9 BRBS 1053, 1055 (1978). 


You aren’t going to get a “do-over”

Don’t expect the Judge to give you a do over. Or a mulligan, as they call it in golf. It isn’t going to happen.
 

What all this means

 
You have the responsibility to show up in court with a medical report (and you can also have the doctor’s deposition testimony and live in-court testimony - - but this is not a guarantee, by the way, that the Judge will have time and allow your doctor to testify live in-court) that correctly analyses and states your permanent disability pursuant to the AMA Guides.
 
I discuss the AMA Guides in my book - Win Your Defense Base Act Case.
 
 
 
WIn Your DBA Case
 
 
 

An illustration - how to calculate your permanent disability for a leg injury under the Defense Base Act

Mike was a security specialist. He suffered a serious knee injury in Iraq when he stepped into a large hole, at night.  Mike has an Average Weekly Wage of $3,600 and a max compensation rate of $1,471.78 based upon his date of injury.  Mike is able to work currently, thus PEPCO doesn’t apply.  As soon as he was declared MMI, Mike got a job.
 
His doctor opined that he had an AMA Guide Impairment of the lower extremity of 44%. Based upon Mike’s doctor, the calculation is as follows.
 
44% x 288 weeks = 126.72 weeks of compensation
 
 $1,471.78 126.72  = $186,503
 
The DBA insurance company doctor concluded that Mike had a 28% AMA impairment. The calculation for the DBA insurance company doctor’s rating is as follows:
 
28% x 288 weeks = 80.64 weeks of compensation
 
$1,471.78 x 80.64 weeks = $118,684


Can I get money for pain and suffering if I have a scheduled injury under the Defense Base Act?

Generally, no, you can’t get money for pain and suffering such as when you have a car accident and sue the other driver in a tort case. Benefits can not be awarded for pain and suffering.  Young v. Todd Pacific Shipyards Corp., 17 BRBS 201 (1985) (award under the schedule should be based on loss of use of the arm without amplification for pain and discomfort).  However, in Young, the Board did not hold that pain and its symptoms are never considered when a doctor rates the loss of use of a member nor that pain and its symptoms should be disregarded in their entirety.  Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154 (1993) (neuropathy, tenderness of the elbow and sensory loss and weakness of the fingers are medical factors which establish a loss of use which may be compensable under the schedule). 
 
The Young case held only that a doctor's impairment rating should not be amplified so as to separately compensate the claimant for "pain and suffering" as in a tort context.  Pimpinella, 27 BRBS at 159.
 
Thus, you may be entitled to permanent disability that results from your pain and disability due to pain. This is a “may.” Not a promise or a guarantee. The Judge is given wide latitude under the DBA.
 


Foot injuries under the Defense Base Act

A foot injury is a scheduled injury under the Defense Base Act.
 
Under the Longshore Act a “foot lost” is 205 weeks of compensation. Section 908(c)(2).


An illustration - how to calculate your permanent disability for a foot injury under the Defense Base Act

Steve works for a transportation contractor in Afghanistan. Steve’s foot is crushed by a moving vehicle. He has major reconstructive surgery for his foot injury.  Steve has an Average Weekly Wage of $2,100, with a compensation rate of $1,399.86.
 
 2/3 x $2,100 = $1,399.86
 
Steve’s doctor concludes that he has a 56% AMA impairment of his foot.  
 
 56% x 205 weeks = 114.8 weeks of compensation.
 
 $1,399.86 x 114.8 weeks = $160,703.92
 
The DBA insurance company sends Steve to their doctor that concludes that Steve has a 18% AMA impairment of the foot.
 
18% x 205 weeks = 36.9 weeks of compensation
 
$1,399.86 x 36.9 weeks = $51,654
 
Obviously there is a huge difference between the two doctors opinions regarding AMA Impairment.  At the request of Steve’s lawyer, Steve’s doctor provides a detailed report walking through her AMA impairment analysis and effectively debunking the low AMA rating provided by the insurance company doctor.
Steve’s doctor used deformity impairments, loss of range of motion, contracture, etc, in her analysis, referring to each respective Table in the AMA Guides
 
 
In contrast, for non-scheduled injuries, loss of wage-earning capacity is an element of the claimant’s case, for without the presumption that accompanies scheduled injuries, a claimant is not “disabled” unless he or she proves “incapacity because of injury to earn the wages.”  33 U.S.C. § 902(10); Bath Iron Works Corp., 506 U.S. at 153, 26 BRBS 151 (CRT).
 
Benefits can not be awarded for pain and suffering.  Young v. Todd Pacific Shipyards Corp., 17 BRBS 201 (1985) (award under the schedule should be based on loss of use of the arm without amplification for pain and discomfort).
 

Need help right now?
 

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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.
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.”