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A Personal Injury, Workers' Compensation and Defense Base Act Law Firm Fighting for the Injured.
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We Help Injured Contractors who worked in Afghanistan

We know this Afghanistan war has been drawn out since the USA first deployed in the fall of 2001. That is 20 years ago. USA Military and contractors are still hard at work trying to evacuate our contract workers and Americans. If you or a loved one were working for a defense contractor in Afghanistan and were injured,  we may be able to obtain federal workers compensation benefits under the Defense Base Act. International workers injured while working for American companies, have rights.

Our law firm is committed to filing claims for injured workers in Afghanistan. We recognize the extreme danger to individuals left behind in the country given the Taliban brutal practices.  If an attorney files a claim for an Afghan person the attorney should have the Judge redact the name of the claimant and use only initials as the person’s family could face retribution. Also the Judge should seal the papers leading to the change of identification.defense-base-act-dba-service-page-300x145

Under the Defense Base Act, citizenship is irrelevant. If you were working for a U.S. defense contractor, you may be entitled to benefits under the Defense Base Act. If you or a loved one was injured or killed in this attack, it is important you contact an attorney who specializes in Defense Base Act cases.

It is critical that the people who helped our military can be evacuated and resettled to safe locations once they are flown from the Kabul International Airport. Those arriving at new locations in the United States will need help with housing, food, education, medical treatment, and eventually jobs.  People helping people are what we are about. We work toward getting medical benefits and lost wages for relocated contract workers. Coming to a new country with only the clothes on your back is not going to help a person thrive. We can provide services that can help stabilize your future and the future of your family.

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Is a Non-FDA drug or service authorized under FS 440 et seq

My workers compensation authorized treating doctor (ATP) has recommended a non-FDA approved experimental drug; however this has been denied by Worker’s Compensation —  is this par for the course?  The response to most legal questions is “it depends” and in this situation it truly does depend on several factors.

Pursuant to FS 440 et seq, compensable medical care does not include services or medication that are experimental, investigative in nature or part of a research project.    However, an exception arises if the Department of Financial Services (DFS) gives prior approval.  The Department must decide each situation on a case-by case basis as no two cases are alike.  Keep in mind, prior to January 1994, this was the responsibility of the DFS however effective October 2003, the legislature repealed the exception noting that experimental or investigative services are not compensable.

jar-2338584_1920-1-300x200Now the term “experimental” includes medical services, procedures, drugs, equipment, or supplies. These are considered experimental if their efficacy has not been proven for a particular diagnosis, or if their safety and validity is unclear or unknown.  Likewise, the term investigative includes these same services and devices when they are known to be safe but their efficacy is still under investigation. Before denying a claim for medical treatment on the argument that the treatment is experimental or investigative the carrier must first refer the request for treatment to the Department of Financial Services.

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Florida Workers Compensation Lien

The workers’ compensation system is designed to provide injured employees with medical and wage loss benefits. Jones v. Martin Elecs., Inc., 932 So.2d, 1104 (Fla.2006).

If you are injured on the job or in the scope of your employment you may have a worker’s compensation claim against your employer/insurance company and you may also have a claim any negligent third-parties.

The injured employee has one year from the date of accident/injury to file a lawsuit against the negligent third-party. The employer, the party paying the worker’ compensation benefits has two years to bring suit. “At the end of the second year, the rights of action revert to the employee, but are (as before) subject to the employer or insurer’s subrogation and lien rights.” Luscomb v. Liberty Mut. Ins. Co., 967 So. 2d 379, 381 (Fla. Dist. Ct. App. 2007).

Although, you may have a workers’ compensation claim against your employer and a claim against any negligent third-party you will not be able to double dip. Florida Statute 440.39 (2020); Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1108 (Fla.2006).

posterwithcaption-1-300x248 Florida Statute 440.39 (2020) mandates that an employer who has provided benefits to an injured employee is entitled to place a lien on a settlement from a third-party for the amount that the employer has paid in benefits.  The employer can also elect to waive the lien. An employer providing workers’ compensation benefits to an injured employee can place a lien on any monies paid out for medical, wage loss benefits as well as future medical benefits that are part of an employee’s settlement with a negligent third-party. City of Lakeland v. Stapleton, 875 So. 2d 784 (Fla. Dist. Ct. App. 2004).

 

 

 

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How to prepare for your Defense Base Act Deposition

Your Defense Base Act claim for benefits for your injuries has been filed. You sustained injuries while working with a DBA contractor and now you have been scheduled to have your deposition taken. If you have never had your deposition taken before, then you are probably wondering what to expect. A deposition is an informal court setting where the attorney for your former employer will question you about your claim. This is essentially your opportunity to tell your story. Even though this is an informal proceeding, you will be sworn in by a court reporter and will answer all the questions under oath. This means that your testimony will have the same force and effect as if you were sitting in an actual court room before Judge.  This is why all of your testimony must be one hundred percent truthful and to the absolute best of your knowledge. Do NOT guess!

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The attorney for the employer and insurance company will ask you questions about a variety of topics. These topics will include some of your background information (questions about your family, residence, education, etc.), your employment history up to the date of your injury, your employment history since your injury, and your entire medical history. All of these questions are an effort by the defense attorney to obtain as much information as possible from your own words. This is why it’s very important to know what to expect and how to respond in a deposition. All of your testimony will be presented to the Judge, should your case go to trial, and the Judge will determine whether or not you are credible based upon your testimony. Therefore, it is imperative that you tell the truth and do not guess when responding to the attorney’s questions. When it comes to dates, times, quantities of measurement; it is okay to approximate as long as you let the attorney know you are doing so. It is perfectly fine to say “I don’t remember” or “I’m not sure.” It is not okay to state an answer is absolutely correct if you only “think” it is correct. Continue reading →

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Never Forgotten…We Help Injured Contractors in Iraq

We know this occupation has been drawn out since the USA led invasion in 2003. Military contractors are still hard at work in Iraq. If you or a loved one were working as a defense contractor in Erbil and were injured in the recent attack in Iraq, you may be able to obtain federal workers compensation benefits under the Defense Base Act.

On February 15, 2021, terrorists carried out a rocket attack on a U.S. military base in the capital of Kurdistan, in northern Iraq. Because of the excellent service  KBR provides to our country through contract workers, they had workers injured in these dangerous locations. Defense One reports the insurgents claim to have fired 24 rockets in this attack killing at least one defense contractor, one U.S. military official, and one local civilian. In addition to the three reported deaths, at least six other civilian contractors were injured in the attack this week. At this time, the citizenship of all those wounded or killed in the attack is unknown.defense-base-act-dba-service-page-300x145

Under the Defense Base Act, your citizenship is irrelevant. If you were working for a U.S. defense contractor, you may be entitled to benefits under the Defense Base Act. If you or a loved one was injured or killed in this attack, it is important you contact an attorney who specializes in Defense Base Act cases.

While three deaths have been reported so far, it is unknown what injuries the other contractors suffered in the attack on Monday.  Reuters reported that its staff “heard several loud explosions and saw a fire break out near the airport.” ABC News reported that three rockets struck military housing located at the Erbil International Airport.

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What is My Hearing Loss Worth under the Longshore & Defense Base Act?

First: Does your hearing loss stem from your work? Many injuries can occur in the workplace, especially if you are working in a dangerous or hazardous area such as a war zone or around loud machinery. Let ‘s take an example where you are a security guard for a private American security company, and you are tasked with securing our military bases and Embassies overseas in countries like Afghanistan and Iraq. Many loud and hazardous noises can cause damage to your hearing.  Employees in these kinds of positions are exposed to loud noises that include mortar attacks, rocket attacks, small arms fire, car bomb explosions, heavy machinery, and alarms. These loud sounds can often over time damage and deteriorate your hearing. Are these types of injuries covered under the Defense Base Act? Second example, assume you work on building ships in the USA and due to loud noise your hearing has declined. Eventually your spouse tells you that you can’t hear and you want to know if you can file a claim. The answer is yes.

Second: Under the Defense Base Act and/or Longshore Act, there are typically two types of injuries: scheduled and unscheduled. Scheduled injuries are injuries listed under Section 8(c) of the Act to which a fixed, or scheduled, disability award (amount of money) is determined and paid. Hearing loss falls under Section 8(c)(13) as a scheduled injury and has a fixed compensation determination. You need to get your hearing tested and use that report to file a claim for monetary benefits.

Ear, Listen, Hearing, Listening, Whisper, SoundThird:  What is my hearing loss worth? Compensation for total loss of hearing in one ear is fifty-two (52) weeks and compensation for total loss of hearing in both ears is two hundred (200) weeks. How much loss you have in your hearing can be determined by the results of an audiogram. Next the calculation is made to find out how much compensation you could be entitled to based on your average weekly wage while working for your employer. Let us say for example you worked earning roughly $1,000.00 per month. This would result in an average weekly wage of roughly $230.77 ($12,000 per year divided by 52 weeks). The proper compensation rate would be two-thirds of your average weekly wage, so in this example, the compensation rate would be $153.85. Now let us say, by calculating your audiogram, that you have suffered a 30% loss in both of your ears, also known as binaural hearing loss. To determine how much you could be entitled to for compensation, you would take the 200 weeks (as indicated by the scheduled list in Section (8) of the Act) and multiply by 30% which would equal 60 weeks. This means you could be entitled to 60 weeks’ worth of compensation at a rate of $153.85, which would equal roughly $9,230.40. We also litigate to get you hearing aids if you want them.  This firm prefers to have the benefits paid in a lump sum rather than every two weeks. Continue reading →

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The calculations for payment of the the workers compensation lien significantly differ if it is a State WC lien under FSA 440.39(3)(a) or under the Federal Employees’ Compensation Act (FECA).  But what about when calculating Defense Base Act (DBA) liens – which is merely an extension of the Federal Worker’s Compensation program?  Below is a precursory analysis of how liens are calculated and based on same, it’s clear Florida and DBA lien calculations are not nearly as complex as FECA calculations.

Florida Worker’s Compensation Lien Calculation:

Under Florida’s 3rd party lien law, Worker’s Compensation (WC) carriers are entitled to recover 100% of past and future payments, but…. the same law reduces this recovery by the carrier’s proportionate share of the injured worker’s attorney fees/costs and any reductions considering the injured workers own negligence in the settlement. It is very important the injured person’s attorney argue the injured worker did not get the full value of the case because he was partly at fault.

When a WC carrier has provided benefits to the injured worker, the Carrier has a lien up to the full amount it has paid.  The lien may be waived if the injured person gives up his right to future benefits.  When it is not waived, the amount the injured worker must pay back is determined by the Manfredo Formula.  See Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). The formula, as set forth in the statute, can be difficult to understand.  The formula has not changed since I posted on this in 2013. However, the easiest way to understand the “Manfredo Formula” is by example:accounting-calculator-1-1241522-300x225

The case of Manfredo v. Employer’s Casualty Ins. Co., 560 So.2d 1162 (Fla. 1990) provides for the formula to use for the Florida state wc lien repayment.  Assume the third party settlement of $275,000.00 is divided by our client’s net tort recovery, which is $127,124.80. This amount is arrived at by deducting our one-third for attorney’s fees and costs along with the outstanding medical bills as our client had surgeries outside of workers’ compensation. Divide $127,124.80. that he will receive over the full value of the case, $275,000.00, equals a 46% payback.  That 46% payback times the wc lien of $20,359.38 calls for us to pay the lien holder $9,441.57.

Now is this formula used when calculating FECA liens or DBA liens?  The short answer is NO

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In many instances, a psychological injury will occur over time as a result of working with multiple employers in a war zone.  Which employer ends up liable will usually be the Last Employer even though there was minimal psychological trauma during that employment. Let’s look at how the courts have typically analyzed this issue.

Psychological claims that occur as a result of cumulative exposure to harsh and dangerous working conditions such as the hazards of working in a war zone are designated as an occupational disease.  Specifically, courts have defined an “occupational disease” as a disease caused by hazardous conditions of employment, which are peculiar to the employee’s employment as opposed to other employment generally.  Hazardous activity need not be exclusive to the particular employment, but it must be sufficiently distinct from hazardous conditions associated with other types of employment.  Gencarelle v. Gen. Dynamics Corp., 892 F.2d 173, 23 BRBS 1 (CRT) (2d Cir. 1989), aff’d 22 BRBS 170 (1989).

employers-300x225The last employer rule specifically applies in occupational disease cases.  Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955).  The title “last employer rule” is sometimes given to each of the different tests for determining liability among several employers in a LHWCA matter.  See Foundation Constructors, Inc., 950 F.2d 621, 624 (9th Cir. 1991).  “Whether it is characterized as two different rules, or different applications of the same rule,” courts use two tests, one for traumatic injury and one for occupational disease, when evaluating employer liability under the Act.  Id.  The Rule limits liability to “the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the Claimant became aware of the fact he was suffering from an occupational disease arising out of his employment.”  Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir 1981); Newport News Shipbuilding & Dry Dock Co. v. Stilley, 243 F.3d 179, 181-82 (4th Cir. 2001).  Put another way, the last employer to employ a claimant while she is exposed to the injurious stimuli prior to the claimant’s discovery of her disease is liable.

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hourglass-2910948_1920-300x200Did you know that there exists time period in which you must file your Defense Base Act claim in order to be eligible for compensation checks? Have you been told by an adjuster from one of the infamous insurance companies like Gallagher Bassett or AIG that your “statute has run”?  In reality, your statute may not have expired at all! As an initial matter, there exists no time limit for medical treatment. This means that even if you had your injury 20 years ago, you are still eligible to file a claim for medical treatment! Medical treatment is never time barred (unless you settle your claim for a lump sum of money, then your medical claim usually closes forever).

There exists TWO statutes of limitations in the Defense Base Act: Sections 912 and 913.

Section 912 of the LHWCA/DBA provides that notice of an injury or death must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment. With respect to occupational diseases, such as mental injuries and PTSD, the statute provides for notice within one (1) year. PTSD is often classified as an occupational disease. Section 912 is the “nicer” statute, as there are several ways to get around it, including showing that the insurance company was not “prejudiced” (hurt) by the failure to timely file. We have won several cases by arguing that there was no harm! No harm, no foul as the saying goes.

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It is not unusual for an auto accident  or work injury to overlap with Covid. What I mean by this is we have had clients who have had Covid and were in an auto accident or recovering from an injury at work. We have had clients who are undergoing treatment following injuries in an auto accident and they developed Covid. We have also been contacted by employees of contractors working in Warzones who have come down with Covid. Because they are in very tight working and sleeping zones, it is especially important that they read this article. Thanks to all who have given me their feedback so I can accurately describe their symptoms and findings as to what helped them.

Covid can be a debilitating illness and most people experience fatigue, mental confusion, and some sort of flu or cold symptoms initially. They may test negative for Covid after 10 days but they still have a hard time getting treatment for their injury and getting proper information on how to recover from Covid-19 a/k/a Coronavirus. Your body having to recover from injuries and covid is no small feat. The body will kick in its immune system to fight off the covid and once that settles down, the pain from the injuries will return.

I’ve been blessed to be given insight into this terrible disease by my dear friends in London who had this disease and dealt with it long before it came to the United States where it is seeing a terrible surge in transmission. People in the UK have had an opportunity to read up on it and study it. In speaking with them I learned that there are important things we need to know.

First and foremost, your local PCP or internist may have no idea about this disease. They are seeing it for the first time. Do not despair. We have you covered.

Unknown-1-rotated-e1606636884336-300x225Because London was hit early and hard with this disease, I am directing you to these youtube videos for people who have symptoms lingering after two weeks. The Medcram video can help you to understand how it can takes weeks to get over and suggest treatment. It states people  have found the NAC vitamin supplement helped them feel better. Even after you test negative you can have residual symptoms. BMJ has a video on this so know you aren’t alone. Facebook has a group posting on their experience with Covid and what worked for their recovery. It’s called Survivor Corps.

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