Know your rights.
As a result of Iran’s attack on Al Asad Air Base on January 8, 2020, there have been reports of almost a dozen American troops being wounded in Iraq.
Can you sue a Third Party?
If you were a construction worker who has been injured on the job, you can apply for and receive workers compensation benefits.
But can you make a claim against a third party other than your Employer?
The workers compensation law in Florida under FSA 440.11(e) grants immunity from civil claims by these words:
(e) A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:
1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and
2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.
No contract = No immunity
If your employer and third party were NOT under contract with each other or under contract with the contractor, you can sue. As the court stated in Derogatis v.Fawcett Memorial Hospital: In order for the (third party) to be considered a contractor pursuant to an immunity defense under FSA 440.11, its “primary obligation in performing a job or providing a service must arise out of a contract.”
CAUTION: Be sure you don’t sign a release of “all parties” in your Workers’ Compensation case. The Florida Second DCA ruled in Leonirez Heredia v. John Beach Associates, Inc., et al.: Case Number 2D18-4127 (Fla. 2d DCA July 24, 2019) that if a contractor acted as both the property owner and as a general contractor at the same time and there was no contract with a third party, there was no immunity when a subcontractor’s employee was injured.
Since he was acting for his own benefit as a private homeowner, he was not considered a contractor under Florida law in this situation. Therefore, the contractor in Heredia could not enjoy immunity under workers compensation.
Thus, an injured worker could sue the contractor as the property owner in civil court.
If you file a lawsuit for injuries in civil court outside of workers compensation, you may be able to seek additional compensation for your pain and suffering as well as loss of earning capacity in the future. In workers compensation cases, you are limited to medical treatment with workers’ compensation doctors and lost wages at 2/3rd of your weekly pay until re-employed. Continue reading →
We know War is dangerous but we tend to think of the injuries as being physical injuries from bombs or weapons. When the worker returns home, we give a sigh of relief and life goes on. Or does it? On a return visit to Peru, we went to the hospital and checked on a former client for whom we obtained a settlement and we learned he was fighting cancer. Initially we saw this as an isolated case. Even when we were contacted by a different individual who had worked for contractors in the Iraq and/or Afghanistan war zones, and had contracted cancer, we were initially skeptical that the cancer was related to their deployment. Then we heard our former client died. This was not a “normal” cancer. It was, as the Doctor in Peru said, “like nothing we have ever seen.”
Almost everyone I speak to about those Wars, tells me they did not realize we fought those wars with foreign workers. They did not realize that American companies hired our fighters from far off places. Yes, we fought those wars with workers from Peru, Chile, Honduras, Uganda and Columbia. Why? Cheap labor for sure and when they were injured, we sent them home. They would have to rely on medical care in their own country.
Both US Military and foreign contract workers suffered stomach or lung problems after returning home. For the foreign contract workers, visits to their community hospitals turned up odd findings on Xrays. Yet there is little cancer treatment in these third world countries where the doctor might give out ibuprofen as treatment. Given the patient’s downward deterioration or consistent weight loss, returning workers gradually died. The doctors in local communities had never been to war zones and were not aware that an illness months later could be a manifestation of a war they knew little about.
During the US wars in Iraq and Afghanistan, there were thousands of deaths and serious injuries both to US Military and to Defense Base private Military contractors. It is documented that in the Iraq War, the private Military contractors were regarded as no different from the US Military to the Taliban or Enemy which means they must die alongside the US Military personnel.
When the American government goes to war, it needs a ton of supplies for support. Well, what happens when those supplies get used and need to be destroyed? They burn it. The American military used large burn pits to destroy huge amounts of waste. The types of waste disposed of in a burn pit can include chemicals, plastics, oil, human and medical waste, explosives, dead animals, tires, and are burnt for hours creating toxic fumes. These burn pits are used at military bases all over the world in countries like Iraq, Afghanistan, Syria, and Djibouti, Africa.
Toxins from the burn pit smoke created long-term adverse health effects for our U.S. Soldiers and the American contractor employees working alongside them. Exposure to burn pit toxins have caused serious diseases such as constrictive bronchitis, a disease of the respiratory system, and even cancer, and can even lead to death. Our military veterans who developed these diseases filed suit to hold the American contractor companies liable, but the U.S. Supreme Court dismissed that case. Now, the Department of U.S. Veterans Affairs has a burn pit registry where U.S. veterans and service members can report their health concerns, but what about the American contractor workers? Where can they go to get help? Our firm.
The Defense Base Act, an extension of the Federal Longshore and Harbor Worker’s Compensation Act, provides coverage benefits for injured workers with adverse health effects caused by exposure to burn pit toxins and fumes. This firm files for medical care and lost wages and survivor benefits in case of a death. We recognize that a certain number of workers have passed away or developed cancer from these toxic fumes. The adverse health effects caused by the toxic fumes are classified as occupational diseases. A claim for a disability due to these occupational diseases must be filed within two years from the time the employee became aware of the relationship between the disease and his or her employment overseas. This usually means within 2 years of when a doctor diagnoses the condition.
Nuestra firma representa a varios trabajadores extranjeros que fueron heridos en zonas de Guerra. Trabajaron para contratistas americanos que los volaban de sus hogares en países diferentes incluyendo Perú, Colombia, y Honduras para servir como guardias de seguridad en zonas de guerra para asistir a nuestro ejército. Estos guardias de seguridad sirvieron junto con nuestro ejército estadounidense y sufrieron lesiones en estas zonas de guerra incluyendo lesiones psicológicas. Si algún guardia ha sufrido lesiones psicológicas, debe tomar ciertas acciones.
Antes de que un guardia pueda presentar una lesión, debe buscar atención médica por su cuenta en su propio país con un médico. Tiene un año a partir del tiempo de ese informe médico que une su condición psicológica a su empleo en la zona de guerra para presentar un reclamo de compensación del trabajador en las cortes federales en los Estados Unidos.
El informe medico tendrá que ser traducido al ingles para que la persona que lo vaya a leer lo pueda entender. El abogado del empleador puede programar un examen medico de defensa con el medico que ellos deseen. Si ese informe es favorable para el trabajador lesionado, entonces tiene una mejor oportunidad de ganar su reclamo por su lesión psicológica relacionada con su empleo.
¿Pero qué pasa si gana su caso? Esto no requiere que el empleador ni la compañía del seguro le pague un solo pago. Se puede recibir un solo pago siempre y cuando las dos partes lleguen a un acuerdo de un numero para resolver el reclamo. Si eso ocurre, el trabajador lesionado abandona su derecho a recibir atención médica y salarios perdidos relacionados con esa lesión en el futuro y se queda con la suma de dinero acordada.
En nuestra firma siempre se hace que la compañía de seguro page por los honorarios de abogados y costos por separado del dinero otorgado a la persona lesionada.
Es muy importante para nosotros que la persona lesionada entienda cómo procede un caso y qué medidas pueden tomar para mejorar el caso.
Primero, necesitan determinar si tienen alguno de los síntomas que usualmente van junto con el trastorno de estrés postraumático. A continuación, necesitan ver al médico en varias ocasiones y someterse a un tratamiento adecuado para documentar la severidad de sus lesiones. Simplemente indicado, una persona que ve al médico varias veces para el tratamiento se espera que sea más lesionado que alguien que ve a un médico una vez.
Con respecto a saber cuánto deben resolver el caso para el trabajador extranjero necesita entender que no se le permitirá entrar en los Estados Unidos para aparecer ante el juez. Nuestras leyes de inmigración no permitirán esto. Por lo tanto, el juez tendrá que tomar una decisión basada en las pruebas de registro antes de él, que por lo general incluye deposiciones. Desde el momento en que una reclamación se presenta hasta que un juez decida tarda unos 18 meses. Continue reading →
How much is paid for death benefits?
The weekly death benefit is capped at the TTD rate of the deceased person. The TTD rate is 66 2/3 % of the weekly gross pay of the deceased (capped at $1,510.76 for 2019). If there is a wife and children, an additional 16 2/3 % is divided equally to the dependent children in addition to the 50% to the wife.
If there is no wife but there is one dependent child, the child will receive 50% of the deceased’s weekly gross pay (let’s call that the average weekly wage or AWW for simplicity), 2 or more dependent children will receive the 66 2/3 % split equally until 1 child no longer qualifies by turning 18 or turning 24 attending full time classes in an educational institute.
Which children qualify for death benefits and for how long? The child must be either:
Don’t delay on filing a claim for the death of a defense contractor worker. When workers are sent overseas and pass away, a death claim should always be filed and it is best to think that it must be filed within one year. This is called the Statute of Limitations. Most overseas contractor employees are on call 24 hours per day, 7 days per week even during their recreational time. This means most death claims are compensable for the overseas worker. A worker’s death on Guam as he was trying to save 2 drowning men was held compensable. In O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 508 (1951), the U.S. Supreme Court ruled the death arose from the “zone of special danger”. When an employee in Korea spent his recreation day boating with a friend, his drowning was ruled compensable by the US Supreme Court. O’Keeffe v. Smith, Hinchman, 380 U.S. 359, 363-4 (1965).
Death Benefits are the same for aliens and non-nationals as United States Residents (and Canadian Residents) except….Dependency benefits in any foreign country are limited to the surviving wife or children, or if none exists to the father or mother whom the employee partially supported for the year prior to the death. 42 USCS 1652(b). For US Residents and Canadian Residents making a claim for death benefits, understand that the wife, children, parents, grandparents are entitled to benefits but if none exists, then anyone is a dependent if they receive more than ½ of their support from decedent and they may apply for and receive death benefits 33 USC 909(d), 26 USCS 152.
The most important point I want you to remember is Dependents only have one year from the Death to file a claim. This is called the Statute of Limitation. On a death claim. Once we are retained, this firm files a LS-262 within one year of the death. So if your loved one died from a bomb blast for instance as happened last month to a Valiant Integrated Services worker, the family must file within one year.
Our firm represents many foreign workers injured in War Zones. They were working for American contractors who flew them from their homes in different countries including Peru, Colombia, and Honduras to serve as security guards in the war zones to help our Military. These security guards serve alongside our US Military soldiers and sustain injuries in these war zones including psychological injuries. PTSD stands for Post-Traumatic Stress Disorder. It is a diagnosis for psychological injuries that the some of the guards suffered. If a guard believes he has suffered psychological injuries, he must take certain actions.
Before a guard can file an injury, he must seek medical care on his own in his own country with a medical doctor. He has one year from the time of that medical report which links his psychological condition to his employment in the war zone to file a worker’s compensation claim in the federal courts in the United States of America.
The medical report will have to be translated to English so that the people who read it can understand it. The employer’s attorney may schedule a defense medical examination with a doctor of their choice. If that report is favorable for the injured worker, then he has a better chance of winning his claim for his psychological injury being related to his employment.
But what will happen if he does win his case? He will receive past money, but it still does not require the employer nor its carrier to pay out a lump sum settlement. A lump sum settlement can only be entered in if the two parties come to an agreement on a number to settle the claim. If that occurs the injured worker gives up his right to receive both medical care and lost wages related to that injury in the future.
This firm always has the insurance company pay its attorneys fees and costs separately from the money awarded to the injured person.
It is very important to us that an injured person understand how a case proceeds and what action they can take to make the case better.
First, they need to determine if they have any of the symptoms that usually go along with Post-traumatic stress disorder. Next, they need to see the doctor on several occasions and undergo proper treatment to document the severity of their injuries. Simply stated, a person who sees the doctor several times for treatment would expected to be more injured than someone who sees a doctor one time.
With respect to knowing how much they should settle the case for the foreign worker needs to understand he will not be allowed to enter the United States to appear in front of the judge. Our immigration laws to not allow this. Therefore, the judge will have to make a decision based on the record evidence before him which usually includes depositions. From the time a claim is filed until a Judge rules takes about 18 months.
Not all cases are won. The judge can find the claimant is not credible and there could be an unfavorable opinion rendered by the Judge and based on the defense attorneys’ doctor that the judge accepts. Even if the case is won, the defense attorney can appeal the decision causing an additional on year approval. Continue reading →
This January, an Administrative Law Judge approved a settlement reached by Javier Ruiz, Esq. relating to home modifications needed by a client (pictured below with his consent) in a Defense Base Act (DBA) case. The case involved litigation of complex legal issues requiring expert testimony as to the modifications needed to the client’s home. For instance, a wheelchair bound injured worker will need lower light switches, doors widened, ramps created, and lower sinks.
To accomplish these necessary modifications, this firm took the depositions of engineers and accessibility experts who testified as to the necessity and cost of home modifications. Mr. Ruiz travels the country in his pursuit of justice and fairness for our clients. Attorneys Jo Ann Hoffman & Associates are proud to be able to help injured workers like this who are often ignored by insurance companies.
Do you know the types of benefits available to you if you are injured in an accident covered by the Defense Base Act/Longshore Act? Broadly speaking, there are two types of benefits available under the DBA: 1) compensation benefits and 2) medical benefits. Home modification falls under medical benefits.
Many injured workers incorrectly assume that medical benefits simply means doctors visits, surgeries, medication, and physical therapy. Fortunately, the definition of medical benefits under Section 907 of the Act is very broad, so broad that it not only includes purely medical benefits like doctors visits, surgeries, medication, and physical therapy, but the definition also includes medically necessary and reasonable apparatus. Continue reading →