Strength vs. Weakness
"You can't be afraid to protect your rights. If you want to get what you are entitled to under the DBA - you have to be ready to take your case to court. You have to be prepared to win. Hoping for a good settlement is a fool's errand. You want to and need to negotiate from a position of strength. You don't do that unless you are prepared to win in court."
Defense Base Act Lawyer - Bill Turley
What Happens If My Defense Base Act Case Goes to Court?
Most civilians who are injured on an overseas work assignment will be able to pursue a case under the Defense Base Act. However, there is a big difference between taking your case to court and settling your claim without litigation—and the option you choose can significantly affect the outcome of your case.
If your Defense Base Act (DBA) case goes to court, you will be expected to:
File a claim.
In order to pursue DBA compensation, you will have to file a claim with the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (DLHWC). You must file Form LS-203 (Employee’s Claim for Compensation) and send DLHWC all relevant medical records associated with your injury.
Participate in an informal conference.
The Department of Labor will hold for a conference with you and the insurance company before making its' recommendation. All parties (including you and your attorney) should participate in this conference before Department of Labor issues its decision regarding your benefit eligibility. If you or your employer disagree with DLHWC’s decision, a disagreement may be filed using Form LS-207.
You should be prepared at the informal conference with your evidence. It is always better to win the informal conference. Meaning recommendations are issued in your favor. Sometimes the DBA insurance carrier will begin to provide benefits if you win. However, the insurance carrier has no legal obligation to follow the recommendations.
Referral to the OALJ
After you formally disagree with DLHWC’s decision, your case will be referred to the Office of Administrative Law Judges (OALJ). This serves as the legal beginning of your case, so both parties will need to gather evidence to make their case in court.
Discovery and your deposition
Your attorney will send a discovery request to your employer (and vice versa) requesting documents and other testimony. Part of the discovery request involves a deposition, where you are asked questions about your accident under oath by opposing counsel.
For more on DBA depositions go here.
Testify at the hearing.
Once all parties have gathered the evidence they need, everyone will participate in a formal hearing before an Administrative Law Judge. Both sides will present their evidence, and the matter will be presented to a judge for decision.
Wait for the decision.
After the hearing, you may wait up to a year to hear back on the status of their case. After the Administrative Law Judge issues his opinion, the parties can choose to accept the decision, or either party can choose to appeal.
Decision and Order.
Two things can happen. You can win or you can lose. If you win, the Judge cannot order that you get a lump-sum for future benefits. The Judge can only order that you get a weekly permanent disability payout.
Know what you are up against.
Seems simple, but losing happens all too often. I have been reading the Judges decisions in all cases brought by DBA claimants for years. I am talking about cases brought by all DBA claimants across the country, not just focusing on our cases here. Based on what I see, DBA claimants (folks that are injured bringing claims) lose more than 50% of the time. This is usually for two reasons.
Settling good cases.
The "good cases" get offered more money and usually end up settling. It's true - I see it all the time. There is often times a reason why the DBA insurance company is not offering what they should.
The decision making process.
Many times, insurance companies make decisions based upon percentages and claimants make decisions based on emotions. So folks turn a blind eye to the evidence and facts and base decision making on things that don't have anything to do with the case. So instead of accepting a "bad settlement offer," they lose.
Listen to your lawyer.
If your lawyer is telling you that you have real problems and concerns with your case - listen. Folks, there is no honor in losing a case based upon "principal". Trouble here is that when folks have hired the wrong lawyer, they don't necessarily know it.
Some cases need to go to trial.
On the flip side, I see (and hear) of instances where the DBA insurance company is simply not offering enough money to settle. I tell clients that I can't recommend settlement. It is up to you whether to accept the settlement offer or not. This is truly your decision. This is why I tell folks all the time to prepare for the long haul.
Winning with the truth
You have to be willing and able to win your case with the truth.
You have to develop the evidence
You're going to need convincing evidence. You need medical evidence that explains why your injuries were caused or contributed to due to you being overseas. You need well reasoned medical evidence. Too often medical evidence is simply conclusions. You need analysis.
A DBA Attorney Can Tell You Where Your Case Should Be Fought
My advice: hire a straight-up honest lawyer to begin with. Make sure they have the skills, talent and experience they need to win your DBA case. Find the best of the best. This means sitting down and doing your research. Make sure you check out all of their blog posts, articles, books, and interviews. Make sure they are the right attorney for you.