What Is A Statute Of Limitations?
A statute of limitations puts a cap on the amount of time that can pass between the time of your Defense Base Act injury until when you file your Defense Base Act claim. In other words, you only have a certain amount of time to bring your DBA claim, or you may be barred from obtaining DBA benefits.
Defense Base Act Statute Of Limitations
While there are two statute's of limitations under the Longshore Act/ Defense Base Act; the one year statute of limitation is the one you really need to be concerned about. In order to protect your rights you need to file your claim within one year of your date of injury.
The Longshore Act states that the time for filing a claim shall not begin to run until you (or your beneficiary) are aware, or by the exercise of due diligence should have been aware, of the relationship between the injury or death and the employment.
A claim under the Act accrues if you know or should know that the injury is work related, and you know or should know that the injury will impair your earning power. This is the appropriate standard for measuring the timeliness of claims filed under the Defense Base Act.
The Presumption Is Powerful
Most Defense Base Act claims are presumed to be timely. This is very important. Because the 20(b) statutory presumption applies to the timeliness of a claim under the Defense Base Act.
Thus, only by producing substantial evidence, can the DBA insurance company successfully raise a statute of limitations defense under the Defense Base Act. Substantial evidence is evidence that a "reasonable mind" would find adequate to support a particular finding or conclusion. It might be more appropriate to refer to a "reasoning mind" rather than a "reasonable mind" because the inquiry requires evaluation of the judgment used arriving at a finding or conclusion, not the ultimate correctness-or "reasonableness" of that finding.
This is powerful. Again, understand the significance of this. If you are credible and the judge believes you, then you will get the 20(b) presumption in your favor. When you have this presumption, it is a rare case where the employer (read: Defense Base Act insurance company) will prevail. The take away point here is always tell the truth. Because if you do tell the truth, the Judge will presume your claim is valid and compensable.
What Does This All Mean?
If you don't file a claim within the one year statute of limitations, the Judge will excuse the lack of timely filing if the Judge concludes you did not have enough information, from your employer, the insurance company, your doctors or other sources, to realize you would have a permanent loss in earning capacity.
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