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Shoulder injuries and arm injuries under the Defense Base Act - What you need to know

Defense Base Act Lawyer - Bill Turley on Shoulder Injuries and Arm Injuries under the Defense Base Act

“I give you an insider’s view of the DBA. I don’t sugar coat it for you. I give it to you straight. No lawyer talk, no double talk. Just good old fashioned, unsweetened truth.”

Defense Base Act Lawyer  - Bill Turley

Author of the 5 Star book Win Your Defense Base Act Case  

Defense Base Act Shoulder and Arm Injuries - Permanent Disability Ratings 

If you’re an overseas civilian contractor that has suffered a shoulder and/or arm injury while you were overseas, you probably know that your injuries fall under the Defense Base Act. What you may not realize is that shoulder injuries and arm injuries are very different under the Defense Base Act as far as determining your permanent disability benefits.
 
How you determine the value of a shoulder injury is usually very different from how you determine the value of an arm injury under the Defense Base Act 
Stated more plainly, under the DBA, how you determine how much money you will receive in permanent disability is very different for shoulder injuries than they are for arm injuries.
 
If you have a shoulder injury or an arm injury, you may be wondering, “How much money am I going to get?”  I can’t answer that question for you. Because every case is different and it all depends on whether the Judge in your case believe you and your evidence.
 
However, in this article I discuss both shoulder injuries and arm injuries under the DBA and how permanent disability monies are determined for both these injuries. I also provide some case studies that illustrate the law regarding arm injuries and shoulder injuries under the DBA.
 
These case studies will help you understand better about what you may - I emphasize the word “may” - be looking at.
 

Here is a quick overview of what I cover in this article: 

I suggest that you also check out this article
 
Why you must tell the truth
 
Don't do anything until you read my book!!!
 
Scheduled injuries vs Unscheduled injuries under the Defense Base Act
 
An arm injury (upper extremity injury) is a scheduled injury under the Defense Base Act
 
Determining your permanent disability for an arm injury under the Defense Base Act
 
Security consultant - arm injury in vehicle crash in Afghanistan -- an arm injury case study
 
Shoulder injury claims under the Defense Base Act
 
Some law regarding unscheduled injuries under the DBA
 
Let’s unpack all of this (said in a little different and a little less legal way)
 
Suitable alternate work
 
The Edwards case illustrates a few important points
 
God helps those that help themselves
 
You gotta suck 'em up
 
But what if the DBA insurance carrier does prove suitable alternate employment?
 
A shoulder injury case study - - a linguist injures his shoulder in Afghanistan - - how to calculate permanent disability for a unscheduled shoulder injury under the Defense Base Act


I suggest that you also check out this article

Here is a good article on the Top 10 questions under the DBA.  I suggest that you check it out. 
 

Why you MUST tell the truth

I repeat this like a mantra. Over and over again. Nothing is more important than your credibility. If the Judge doesn’t believe you, then you’re going to lose your DBA case. It really is that simple. This is why you must tell the truth about everything.
 

Don't do anything until you read my book!!!

Before you do anything related to your DBA case - including, but not limited to - talking to the insurance adjuster, signing any forms (do not sign any forms, releases, etc.!!), giving a statement (don't give a statement!!!), going to your next medical appointment, attending an informal conference, attending a Labor Market Survey meeting, giving a deposition, attending a defense medical exam (also called an IME)... or anything else related to your DBA case - - you MUST first read my 5 Star book - Win Your Defense Base Act Case.   Get your free copy here
 
 
How to Win Your Defense Base Act Case
 

 

Scheduled injuries vs Unscheduled injuries under the Defense Base Act

 
There are two different kind 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 unscheduled injury, if you have a loss of wage earning capacity, you can get weekly disability benefits for the rest of your life. I explain all of this in detail in this article. So, don’t worry if you’re not fully getting this.
 
An arm injury is a scheduled injury and a shoulder is a unscheduled injury under the Defense Base Act.
 

An arm injury (upper extremity injury) is a scheduled injury under the Defense Base Act

An arm injury is one of the scheduled injuries. These are also called “upper extremity injuries.”
  
Under the Longshore Act an “arm lost” is 312 weeks of compensation.
 
Currently, compensation for total disability is two-thirds of your average weekly earnings, up to a current maximum of $1,510.76 per week. This maximum is adjusted every October, but for purposes of this article, we will use this rate.
 

Determining your permanent disability for an arm injury under the Defense Base Act

In order to determine your compensation rate under the DBA, you first have to determine your average weekly wage.  Oftentimes there will be a big battle over your average weekly wage (AWW). Especially if you worked overseas for less than a year before you were injured.
 
Your compensation rate will be 2/3 of your average weekly wage, up to the maximum compensation rate.
 
Thus, under the DBA if you were to have lost your arm (and there was no injury to your shoulder) your permanent disability would be as follows:
 
312 weeks x $1,510.76 = $471,357
 
The DBA requires that you receive a permanent disability rating under the American Medical Association (AMA) - Guides to the Evaluation of Permanent Impairment (6th Edition).  Thus, if you have an arm injury, you are going to need a medical report that provides an impairment rating under the latest version of the AMA Guides.
 

Security consultant - arm injury in vehicle crash in Afghanistan -- an arm injury case study

Case studies are oftentimes good ways to help explain the DBA. Don't think that just because you may not have been a security consultant that this Case study doesn't provide insight into your case. 
 
This case study is about a security consultant that had an arm injury in Afghanistan. The security consultant is in a vehicle collision and he suffers a serious injury to his elbow.  He receives emergency medical care at the FOB where he is stationed. He returns home and has surgery to his elbow.
 
The security consultant (called a Claimant, the person bringing the DBA claim) has an average weekly wage (AWW) of $3,500 a week.
 
In order to determine his temporary total disability (TTD) compensation rate, you multiply his AWW times 2/3.
 
 $3,500 x 2/3 = $2,333.31
 
Thus, he has a maximum compensation rate of $1,510.76.
 
His doctor provides an AMA Impairment rating of 28% impairment of the upper extremity.  Thus, his permanent disability calculation is as follows:
 
28% x 312 week = 87.36 weeks
 
Thus, under the DBA, he is entitled to 87.36 weeks of compensation.
 
 $1,510.76 x 87.36 weeks = $131,979
 
Thus, he is entitled to temporary total disability up to the date he is declared to have reached maximum medical improvement (MMI).  Then, at that point forward the DBA insurance carrier must pay him his weekly permanent compensation benefits.
 
Or, he can try and settle his DBA arm injury claim for a lump-sum amount.
 
One of the factors that will determine the arm injury settlement amount will be the need and cost of future medical treatment.
 
Whether or not you can return to work overseas isn’t really an issue, unless the arm injury is so severe that you are unable to return to any employment. The DBA insurance company is going to argue that you are going to get the same amount whether the injury ends your overseas civilian contracting career or whether your back working overseas.
 
Not to suggest that you can’t get more when you settle your case than the weeks of compensation for your scheduled injury.  Because you may be able to do that.  No promises or guarantees, of course.
 
Not to talk in riddles. But, it depends.
 
I would suggest that you hire the best, honest Defense Base Act Lawyer that you can find. I talk about this in my book - Win Your Defense Base Act Case. Of course, you don't have to believe me on whether you should get my book - I suggest you check out the 5 Star reviews.

 

Shoulder injury claims under the Defense Base Act

Shoulder injuries under the Defense Base Act are unscheduled injuries. Unscheduled injuries are a wage loss concept under the DBA.  Your AMA impairment rating really doesn’t matter.
 
The most important issue with a unscheduled injury is whether or not the injury prevents you from returning to your usual and customary employment. If you are able to return to your usual and customary employment, then your DBA claim has limited value in regards to permanent disability.

Some law regarding unscheduled injuries under the DBA

I know that some of you want to see proof of everything. Here, I provide some good Defense Base Act case  and law citations.  You may notice that a lot of these cases are Longshore or shipyard cases. The Defense Base Act is an extension of the Longshore Act. So, a lot of the case law for DBA cases are Longshore cases. It's not accident that I started out doing shipyard cases and Longshore cases in San Diego. Most of the best DBA lawyers started out as Longshore lawyers. 

The initial burden of proving the nature and extent of disability lies with you (read: the Claimant).  Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56, 59 (1985).  Disability is defined as the “incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.”  33 U.S.C. § 902(10). 
 
For unscheduled injuries under the DBA, your degree of physical impairment is not just a medical concept, but is also an economic one “measured by its impact on the worker’s earning capacity.”  Bumble Bee Seafoods v. Dir., OWCP, 629 F.2d 1327, 1328 (9th Cir. 1980); accord Stevens v. Dir., OWCP, 909 F.2d 1256, 1259 (9th Cir. 1990); Palombo v. Dir., OWCP, 937 F.2d 70, 76 (2d Cir. 1991). 
 
Compare this to an arm injury where the degree of physical impairment or disability is a medical concept under the AMA Guides (see above), if the DBA insurance company is able to show that you are able to earn any money.
 
In order for you to receive disability benefits, you must have an economic loss coupled with a physical or psychological impairment.  Sproull v. Stevedoring Serv. of Am., 25 BRBS 100, 110 (1991).
 
With regard to the extent of the disability, you are presumed to be totally disabled when you can establish that a work-related injury prevents you from performing or returning to your usual employment. Edwards v. Dir., OWCP, 999 F.2d 1374, 1375 (9th Cir. 1993); Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1196 (9th Cir. 1988); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981).  When you prove with medical evidence that you cannot return to your usual, former employment  - you have made a prima facie case of total disability.  Rice v. Service Employees Int’l, Inc., 44 BRBS 63, 65 (2010).

 

Let’s unpack all of this (said in a little different and a little less legal way)

I will explain this a little differently, to make sure that you understand all of this.  Sometimes when I hear things put into different words, I know it helps me understand it.
 
With an unscheduled injury - such as a shoulder injury, if you can present medical evidence that you are unable to return to your usual and customary employment (for example as an overseas security consultant) due to your injuries, then you are presumed to be totally disabled under the DBA.
 
This is not to suggest that the DBA insurance carrier is precluded from presenting evidence that you are able to return to your usual and customary employment.
 
The DBA insurance carrier is usually going to send you to an insurance company doctor, who may very well say that you’re able to return to your usual and customary employment.
 
If the Judge believes the insurance company doctor and the Judge rules that you are able to return to work overseas as a civilian contractor in your usual job, then you aren’t entitled to permanent disability benefits.
 
However, if the Judge rules that you aren’t able to return to your usual and customary employment as an overseas civilian contractor - then you are presumed to be permanently and totally disabled.
 
Hopefully, you’re still with me.
 

Suitable alternate work

Once you prove that your work-related injury prevents you from performing your former job, the burden shifted to your employer (read: the DBA insurance company), "to prove that suitable alternate work is available in the community." Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1996 (9th Cir. 1988). If the DBA insurance company fails to meet this burden, it must pay you  permanent and total disability benefits.  Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1996 (9th Cir. 1988); Edwards v. Director, Office of Workers Compensation Programs, 999 F.2d 1374, 1375 (1993).
 
For example, in the Edwards case, the Judge ruled that the employer did not prove the availability of suitable employment.  As the Edwards court stated:
 
Todd (the employer) presented two (labor) market surveys showing the existence of a few openings as a mechanical inspector. Almost half of the listed openings were not available to Edwards (the Claimant) because they required experience which he did not have. Edwards had contacted the other employers in the listings without any success. Edwards had also searched diligently for a job at firms not listed in Todd's surveys, but again without success. Thus, there was substantial evidence supporting the ALJ's determination that Todd had failed to prove the availability of suitable alternate work.
Edwards v. Director, Office of Workers Compensation Programs, 999 F.2d 1374, 1376, (1993). 
 

The Edwards case illustrates a few important points

First, opposing the Labor Market Survey with evidence that you are not qualified to perform some or all of the jobs listed in the LMS. 
 

God helps those that help themselves

Second, the Edwards case means that you should get your butt off the couch and go out and actually apply for every job listed on the LMS.  Seriously. YOU MUST DO THIS.
 
If you don’t apply for all the jobs listed on the LMS, you do so at your own peril.   
 
In addition, did you notice in Edwards that the Claimant had search for jobs not listed in the employer’s Labor Market Surveys?
 
My Mom used to always say, “God helps those that help themselves.”  This would be one of those times.
Not to get all religious on you, but there is a lot of wisdom in all of this.
 
 

You gotta suck 'em up

Don’t be that guy or gal that doesn’t listen.
 
You have to do this. Not your lawyer. Not your spouse or your mother. This is on you. Don’t be thinking, “This is why I hired a lawyer, so I wouldn’t have to do this stuff.”  Not.
 
Now is time for tough love. I good kick in the pants, if needed. But you don’t need that, do you? Because you have read this article and you got a copy of my book, Win Your Defense Base Act Case. You realize that you need to suck em up, and do what it takes to win your case.
 

But what if the DBA insurance carrier does prove suitable alternate employment?

Don’t get too excited quite yet with the Edwards decision. Because even if you are able to prove that you are unable to return to your usual job overseas, the Judge can still rule that the DBA insurance carrier has proven suitable alternate employment. What then?
 
Let’s go over that.
 
Under the Act, if an employee has a permanent partial disability, his employer (read: DBA insurance company) must pay two-thirds of the difference between the employee's pre-injury  wages and his current wage-earning capacity. 33 U.S.C. § 908(c)(21); Newport News Shipbuilding & Dry Dock Co. v. Dir., 315 F.3d 286, 291 (2002).
 
Let’s take a look at a case study to help you understand this.
 

A shoulder injury case study - - a linguist injures his shoulder in Afghanistan - - how to calculate permanent disability for a unscheduled shoulder injury under the Defense Base Act

In this case study, the overseas civilian contractor is a linguist that works in Afghanistan.  He is outside the wire and injures his shoulder when he falls while going down steep stairs in order to avoid enemy combatants. He reaches out to stop his fall and tears his shoulder. 
 
He receives emergency medical care and he is sent home to Indiana.  He has surgery and he doesn’t get the best result. His doctor gives the opinion that he won’t be able to return to work overseas because he has difficulty reaching his arm above shoulder level.
 
He has an average weekly wage of $2,150 a week.
 
The DBA insurance company sends him to a doctor that also gives the opinion that he can no longer work overseas in his usual job.
 
The DBA insurance carrier gets a Labor Market Survey. The Labor Market Survey shows job in the area where Claimant works earning up to $2,100 a week.
 
If the Judge rules that these jobs are suitable alternate employment, then Claimant has a loss of wage earning capacity as follows:
 
    $ 2,250 AWW
  - $ 2,100   suitable alternate employment
     $   150
 
$150 x 2/3 = $100
 
Thus, Claimant is entitled to $100 in weekly permanent disability.  However, if Claimant ever earns over $2,100 a week, the DBA insurance carrier can ask the Judge to a modification of the permanent disability award. Meaning, cut him off.
 
In this case study, the DBA insurance carrier reduces the weekly disability payments to $100 a week. Not good.
 
Claimant, listens to his lawyer and goes out and gets a job working in an big box store as an assistant manager.  He is earning $36,500 a year.
 
Allow me to digress. Not to suggest that Claimant didn’t need to work. Because he did. He wasn’t going to be able to support his wife and kids on $100 a week. Getting a job helped both his economic situation, it helped his relationship with his wife and it helped his case.
 
Claimant is earning $701.92 a week.
 
The case goes to trial (called a Formal Hearing).  The Judge rules that the job that Claimant is performing as an assistant manager at a big box store is the best evidence of Claimant’s wage earning capacity. The Judge rules that Claimant loss of wage earning capacity is as follows:
  
    $ 2,250.00   AWW
  - $    701.92  
    $ 1,548.08

 $1,548.08 x 2/3 = $1,032.04
 
Thus, Claimant is entitled to receive $1,032.04 in permanent disability.
 
However, if in the future, Claimant earns more than $ 701.92 a week, the DBA insurance carrier can move to modify his permanent disability award.
 
 

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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.
 
Just because we have gotten great results in so many other DBA cases, doesn't guarantee in particular result in other cases. Including, case. Every case is different.
 
In order to protect folks, these case studies are not intended to refer to a specific person or case. Any resemblance to actual cases is purely coincidental.
 
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.”