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Defense Base Act Statute Of Limitations

How long do I have to file a Defense Base Act claim? Defense Base Act statute of limitations  - 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

How long do I have to file a Defense Base Act claim? 

I'm all about being straight up. So, the short answer is that you should file your Defense Base Act claim as early as possible. Not just because of the "statute of limitations." This is the time limit the law gives you to file a claim. But, also because the earlier you file your Defense Base Act claim, the more likely that you will get DBA benefits from the DBA insurance company to be paid to you without your having to litigate your DBA case in court. That's the practical side of when you should file your DBA claim. 

But, let's put aside the practical side and look at the legal side. As I explain in this article, you generally have one year to file your Defense Base Act claim from the date of your "injury."  If you file within the one year - there isn't any argument that you have filed on time. So, if you can file within the one year of your injury - I strongly recommend that you do so. Both to help you get benefits from the DBA insurance company and to avoid any arguments that you didn't file within the one year. 

But, what happens if you haven't filed within the one year?  In this article I discuss ways to get around that. But again, don't depend on this. If you can file within the one year - do it. Now. 

If you are outside the one year and you still haven't filed or you filed after the one year - don't give up. You can still fall back on one of these arguments: 

1.  The DBA insurance company voluntarily paid you disability benefits and you filed your DBA claim within one year of the disability benefits being stopped. 

2.  The DBA insurance carrier doesn't file an LS-202. 

3.  The Defense Base Act statute of limitations begins to run only after you are aware or reasonably should have become aware of the full character, extent, and impact of your injury.

4. The you know or should know  that the injury will impair your earning power.

The bottom line

The DBA statute of limitation is liberally interpreted in favor of the injured worker or survivor. 

But I suggest that you don't try this at home. If you are past the one year, then you are going to need the best, honest DBA lawyer that you can find in order to win your DBA case. 

And, you always want to avoid arguments. So always, if you can, file your claim within the one year of your being "injured" or one year of the death of a family member. 

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 - one year

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 should try and 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 One Month Statute 

There is a one month statute of limitations. While I do recommend that you file a claim within the one month, if you can, I don't think you should lose sleep about it, if you missed the one month.  

Again, if you are within the month, I suggest that you have a seasoned DBA lawyer file the claim for you. 

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.

Tolling your statute of limitations 

If you have been receiving DBA benefits from the DBA insurance company, the statute of limitations has been tolled while you are getting benefits. Meaning you have the one month or the one year to file your DBA claim from the time you stop getting your DBA benefits. 

Defense Base Act Statute of Limitations - the impaired earning power rule

 
All of the courts of appeals have held that the statute of limitations begins to run only after you are aware or reasonably should have become aware of the full character, extent, and impact of your injury.
 
Although these courts have stated the test in different ways, they generally have held that the employee is aware of the full character, extent, and impact of the injury when the employee knows or should know that the injury is work-related, and knows or should know that the injury will impair the employee's earning power. Abel v. Director, Office of Workers Compensation Programs, 932 F.2d 819, 821 (9th Cir. 1991); (Remember- the Defense Base act is an extension of the Longshore Act and this principal has been around for a long time - before the Iraq and Afghanistan wars and most DBA cases were litigated); Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 27 (4th Cir. 1991); Brown v. ITT/Continental Baking Co., 287 U.S. App. D.C. 249, 921 F.2d 289, 294-95 (D.C. Cir. 1990); J.M. Martinac Shipbuilding v. Director, Office of Workers Compensation Programs, 900 F.2d 180, 183 (9th Cir. 1990); Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 296 (11th Cir. 1990); Bechtel Associates, P.C. v. Sweeney, 266 U.S. App. D.C. 182, 834 F.2d 1029, 1033 (D.C. Cir. 1987); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141-42 (5th Cir. 1984); Cooper Stevedoring, 556 F.2d at 274; Bath Iron Works Corp. v. Galen, 605 F.2d 583, 585 (1st Cir. 1979);  Paducah Marine Ways v. Thompson, 82 F.3d 130, 134-135 (6th Cir. 1996).
 
I list all of these cases because each of the Circuit Courts of Appeal can interpret the Longshore Act and Defense Base Act in different ways. But on the Defense Base Act Statute of Limitations - Impaired earning power rule - the Circuits are all in agreement.
 

A quick case study on DBA impaired earning power rule - a back injury

Claimant suffered a back injury and didn’t file his claim until three years later when his back problem was diagnosed as having a disc problem. Claimant had continued to work after the initial back injury. His back was sore, but he continued to keep working, in spite of his sore back and aches and pains. The insurance carrier defended the claim by saying that since Claimant didn’t file his claim within a year of his injury - that his claim was barred by the one year statute of limitations. No surprise here. No benefits are paid. The case went to court. 
 
The court found that Claimant’s claim was filed timely - even if the claim was filed three years after his initial injury incident.
 
The court ruled that because his back problems did not cause him to be unable to work at that time, his earning power was not impaired. Thus, until his disc problem surfaced and he was unable to work, Claimant had no impairment of which he could be aware.
 
The insurance carrier contended that Claimant was aware that his earning power was impaired when he had to miss weeks of work after his various back flare-ups.
 
The court ruled that this argument failed to recognize the difference between a temporary and a permanent disability. A temporary inability to work while recuperating from an accident does not put an employee on notice that his earning power has been permanently impaired, particularly when the employee returns to work and works for substantial time periods after he recuperates.
 
The insurance carrier also contended that Claimant frequently working with a sore back should have alerted him to the seriousness of his back injury and to the possibility of an impairment of his earning power. The court held that  this confuses short-term and long-term effects; experiencing pain after an accident, particularly when that pain does not prevent the employee from working, does not put the employee on notice of a likely impairment of long-term earning capacity.
 
The court held that the statute of limitations begins to run only when the claimant is aware or reasonably should be aware both that the injury is work-related,   and that the injury will impair the claimant's wage-earning capacity. The court found that Claimant first became aware that his injury would impair his wage-earning ability when his herniated discs were diagnosed.
 

When the DBA insurance company doesn't file an LS-202 - the time to file a claim doesn't begin to run

Under Section 30(f) of the Longshore Act, if the employer (read: DBA insurance carrier) fails to file an Employer’s First Report of Injury (Form LS-202), the Section 13(a) time limit does not begin to run until the employer complies with Section 30(a) and files it's LS-202.

Stated differently, if the DBA insurance carrier has knowledge of your injury and doesn't file an LS-202 Employer's First Report of Injury or Occupational Disease - then your time that you have to file a DBA claim doesn't start (that is the one year); until the DBA insurance carrier files an LS-202. 

Ok. Let's break this down even further. Suppose that you tweaked your back when you were diving for cover during a rocket attack. Happens all the time in war zones. You mention to your supervisor about you back getting tweaked. Meaning, you provided "Notice" of you injury to your DBA employer. Now fast forward 5 years. Your back is shot and one of the doctors is attributing all back to the diving for cover back tweaking incident. 

If the Judge believes you that you mentioned it to your supervisor - and your employer never filed an LS-202 - you can beat the DBA insurance company's statute of limitations defense. 

The moral to this story. If you're injured while working overseas, send a quick email to your supervisor telling the supervisor that you were injured. You can continue to work. But, you have put the company "on notice" of your DBA injury. 

PTSD and the Defense Base Act Statute of Limitations

Be sure to check out this article on PTSD and the DBA.  It's a long article, but it has an in depth discussion on PTSD and statute of limitations

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.

Don't dilly or dally 

I suggest that you don't sit around and wait to file your Defense Act claim.  You should be jumping on it right now. Even if you're still getting your DBA benefits. You should lawyer-up now and file your claim. 

But... what could happen if I hire a DBA lawyer?

I know what you might be thinking.  Will the adjuster get mad at me if I hire a lawyer?

Will my benefits get cut off if I get a lawyer?

Or how much will getting a lawyer cost me?  All great questions.  Here is a great article that unpacks these questions about hiring a Defense Base Act lawyer and more

 

Section 13(a) (33 U.S.C. 913(a)) of the Longshore Act states:

This is the actual law for the statute of limitations.

“Time to file.  Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefore is filed within one year after the injury or death.  If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment.  Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or death occurred.  The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.” (Emphasis added). 

What is the statute of limitations for Defense Base Act medical treatment? 

Medical benefits are never time-barred. Siler v. Dillingham Ship Repair, 28 BRBS 38 (1994) (decision on recon. en banc); Ryan v. Alaska Constructors, Inc., 24 BRBS 65 (1990); Mayfield v. Atlantic & Gulf Stevedores. 16 BRBS 228 (1984). In Strachan Shipping Co. v. Hollis, 460 F.2d 1108, 1116 (5th Cir.), cert. denied, 409 U.S. 867 (1972).

Meaning, even if you have never filed a DBA claim, you can still obtain medical treatment for  your overseas injury.  Thus, there is no "statute of limitations" for medical treatment. 

However, if you have a potential DBA claim. I suggest you file your "claim" as soon as possible. Because you might still be able to bring the claim. Do not wait - to it today. Bring the DBA claim (meaning file the claim with an LS-203).  Then you protected (maybe) if you end up being entitled to disability benefits. And if not, you can still always get medical treatment. Because medical treatment under the DBA is never time-barred. 

 

Defense Base Act Death claims and the statute of limitations

You have one year to file the death claim. That is, one year from the date of death.

However, "The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.” 

Meaning, should you have known that the death was related to decedent's (your family member that died) being overseas as a civilian contractor. 

If you are filing your DBA death claim more than one year past the date of death, here are some questions that you need to be ready to answer: 

How did you make a connection between the death and the decedent's being overseas as a civilian contractor? 

When did you make the connection (or suspect there may have been a connection) between the death and the decedent's being overseas as a civilian contractor? 

When did you learn of decedent's death? 

 

 

The bottom line 

The first thing I suggest that you do is get a copy of my 5 Star book - Win Your Defense Base Act Case.  The next thing you should do is find the best, honest Defense Base Act lawyer that will agree to take your case. (I cover how you should do this in my book). I suggest you have your lawyer file your Defense Base Act claim for you. 

Feeling a bit overwhelmed. Learn more about the DBA law system in an easy to understand way by getting a FREE copy of my book, Win Your Defense Base Act Case here. 

 

WIn Your Defense Base Act Case - everything you need to know about the DBA statute of limitations - How long do I have to file my Defense Base Act case?

This is a MUST READ book on the Defense Base Act 

Insider information

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.

I suggest that you MUST read my book, before you make one of the common mistake that folks make that ends up tanking their DBA case. This includes, don't talk to the DBA insurance adjuster, sign any forms, sign any releases, give a written or recorded statement, go the defense doctor medical examination, attend a Labor Market Survey or do anything else case related - including, hiring the wrong lawyer. Just stop everything until you get my book. 

We will UPS it to you if you absolutely think you have to do something (that you're really going to end up regretting later). 

Check our all the 5 Star reviews on amazon.com !

 

This article is not legal advice. Just because we have had a lot of great results in Defense Base act cases is certainly not a guarantee of any particular result in your case. Every case is different. Every situation is different.  As I say repeatedly, "Don't try this at home!"  You should retain the best, honest Defense Base Act lawyer that will agree to take your case. 

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.”