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A Personal Injury, Workers' Compensation and Defense Base Act Law Firm Fighting for the Injured.
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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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Can you file a Defense Base Act Claim? How to do  you file a DBA Claim in order to receive compensation?

We will give you a general explanation on how you can file a Defense Base Act (DBA) claim for Post-Traumatic Stress Disorder (PTSD) and how to receive compensation for the injuries you have suffered. Filing a DBA claim can be a long strenuous process that if not done correctly can have a significant impact on your ability to receive the proper care you deserve as well as compensation you are owed. The Federal law requires all U.S. Government contractors and subcontractors to have insurance for their employees working overseas which is designed to protect you and your ability to earn an IMG_9968-e1496774833618-1-225x300 while working overseas for a U.S. contractor/company and which can also provide you with compensation for medical treatment. The first step in filing a Defense Base Act claim is to seek and have proof of medical treatment for any work-related injuries you may have suffered on the job. The injuries you suffered can be physical or mental health injuries or both. Generally, there is a one-year filing deadline to make a claim for benefits after the work-related injury occurred. Filing a DBA claim for PTSD can be more complicated because the symptoms may not arise until after the 1-year deadline has passed. However, PTSD is generally considered an occupational disease which can extend the filing deadline to two-years after knowing of the injury. Here is the form you can use to file your DBA claim. It is called an LS-203.

The importance of seeking medical treatment is both to receive proper treatment for your injury and to validate your claim and injuries with documentation. After receiving treatment, the law requires you to report your injury or injuries to your employer to put them on notice. The form required to file a claim is LS-203 which can be faxed to the Division of Longshore and Harbor Workers’ Compensation (DLHWC). When your employer receives notice of your injury, they will notify the Department of Labor which will begin the timeline of events that if not adhered to can bar your right to receive compensation for your injury. Once your claim has been assigned to the Officer of Workers’ Compensation Programs (OWCP) you will provide the required documentation, details of your injury and medical diagnosis for your right to receive compensation. The amount of compensation varies from each case’s specific facts and the Claimant’s average weekly wage which we will help you calculate. Your DBA insurance will also compensate you with weekly compensation benefits in the event you’re unable to work. We understand that PTSD is a real mental health problem that will affect your daily life, family, relationships and even your ability to earn an income. Most likely, the insurance company will outright deny your right to receive any medical care which is why it is crucial you seek proper representation. If you were in a war zone and believe you may be suffering from PTSD we urge you seek treatment immediately and to contact us so that we may preserve your rights to file a claim.

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Our firm has seen a recent rise in the number of heart attack and other cardiovascular claims in the Defense Base Act whether it be a stroke, an aortic dissection (which is deadly), and heart attacks. These claims are very often denied by the insurance company, whether it be Starr or Gallagher Bassett, which seem to be handling many of the Defense Base Act claims in 2020. Our firm has handled numerous heart attack, stroke and aortic dissection claims from all over the world including South Korea, Iraq and Afghanistan. With respect to heart attack and cardiovascular injuries, these claims largely depend on good medical documentation from your doctors, so it is important to make sure you select a good doctor who will fight for you ( do not ever let the insurance company pick a doctor for you or even recommend a doctor to you).

Fortunately for the injured civilian contractor, the Defense Base Act provides numerous benefits and presumptions to help beat the insurance companies’ wrongful denial of benefits. All that we must show at the start of a claim is that the injured worker (1) sustained a harm and (2) that conditions existed or an incident occurred at work that could have caused the harm. Bath Iron Works Corp. v. Preston, 380 F.3d 597 (1st Cir. 2004). This is known as the section 20(a) presumption. Once an injured worker successfully raises the section 20(a) presumption, the burden shifts to the employer, who may rebut the presumption by producing substantial evidence that the injured workers condition was neither caused nor aggravated by his employment. It is at this point that the insurance company will send you to their doctor (who is usually “in their pocket”) to try and derail your claim.

For purposes of heart attack claims under the Defense Base Act, it does not matter that you had pre-existing conditions, such as high blood pressure or high cholesterol. “An employer is liable for employment conditions that cause an injury or aggravate or accelerate a pre-existing condition under the aggravation rule, which dictates that “the employer takes the employee as he finds him.” Hawaii Stevedores, Inc., 608 F.3d at 650.

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As we attempt to navigate through unchartered waters, the concern for most workers who return to work – whether you are a frontline worker or in the private sector and have no alternative but to work – is whether or not you will be covered under Florida Workers’ Compensation Laws if you contract Coronavirus (COVID-19).  The good news is you are covered if you are a Florida frontline employee.

Are private sector workers covered for covid? It is not easy as the private worker must prove that Covid or Coronavirus which is considered an occupational disease, was contracted due to a unique risk or exposure pic-200x300hazard at work; was contracted during employment; and that the nature of employment was the major contributing cause of the disease. Florida law 440.151.  This burden is not an easy burden to satisfy, especially for private sector worker which includes, but not limited to, grocery employees, office employees, laborers, support staff workers, restaurant employees, etc.  However, as of late, the burden for state frontline workers is no longer as stringent.

In April 2020, Florida Chief Financial Officer (CFO) and State Fire Marshal Jimmy Patronis directed the Division of Risk Management to provide workers’ compensation coverage to state frontline employees.  The directive/special rules, found in the Chief Financial Officer (CFO) Directive 2020-05,  apply only to state frontline employees and not to the private sector workers.  Directive 2020-05 states that Florida is going to honor workers’ compensation claims for state frontline employees.  Covered employees include state employees who work directly with the public such as police officers, healthcare workers, family protective services investigators and emergency responders.  The rules dictate that the burden is on the state to prove that the source of the Coronavirus is a source other than the employee’s work.  In summation, it is more likely than not that state frontline employees who contract Covid- 19 a/k/a Coronavirus can expect to receive workers’ compensation benefits without much of a fight. Continue reading →

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After your attorney files your psychological claim for the injury you sustained during your employment as a DBA security guard, what happens next? The defense attorney will schedule you to be examined by a psychologist or psychiatrist of their choosing. You’re probably wondering what to expect during the examination and what’s the purpose? This is the insurance company’s opportunity to have you examined by a doctor that they have hand-selected to determine the extent of your psychological injuries. This doctor is going to evaluate you and then write a report summarizing the results of the examination. Obviously, this report will have an impact on your case because a Judge will consider their IME doctor’s opinion when making a ruling on your case at trial. There are a few things to aware of in order to be prepared for your examination, but first understand this important nugget of information:

An administrative law judge (“ALJ”) has “the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence.”  Pietrunti v. Dir OWCP, 119 F.3d 1035 (2d Cir. 1997).  Additionally,person-in-black-pants-and-black-shoes-sitting-on-brown-4101143-2-300x200 an ALJ is not bound to believe or disbelieve the entirety of a witness’s testimony but may choose to believe only certain portions of the testimony.  Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941 (5th Cir. 1991).

There are several items that can impact a Claimant’s credibility and so the injured worker must remember:

  • Testimony at trial or in deposition MUST BE consistent with past testimony or statements;
  • Claimant must have actually seen or heard the events about which the Claimant has testified (corroborating evidence helps);
  • Recalling events accurately (verify your dates before you speak);
  • Description of events seems likely; and
  • Don’t go into great detail about unrelated psychological issues such as “people say craziness runs in my family.”

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