While rare, an attorney should always consider the viability of pursuing a third-party claim where a DBA injury is due to the negligence of a third-party other than your employer. This is allowed under 33 U.S.C. Section 933 (a) but has a strict requirement of notification under subsection (g)Compromise obtained by person entitled to compensation:
Hearing loss under the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, is compensated under Section 8(c)(13) as a scheduled injury, resulting in a scheduled award. It is a traumatic injury in that the harm occurs immediately upon exposure.
Hearing loss is determined by the use of a professional audiologist who will perform an audiogram. The audiogram will show the percentage loss of hearing in each ear, and that can then be used to determine your overall hearing loss.
There are two types of hearing loss under Section 8(c)(13). The first is monaural hearing loss, which simply means a loss of hearing in one ear. A 100% loss of hearing in one ear results in 52 weeks of compensation at the appropriate compensation rate. For example, if you have a 30% loss of hearing in one ear only, you will be paid for 15.6 weeks of compensation at the appropriate compensation rate(30% of 52 weeks).
It is vitally important to calculate the average weekly wage (AWW) following an on the job injury in a Defense Base Act (DBA) claim. It is of utmost importance that the AWW be calculated correctly, because the AWW controls how much money you will receive from the insurance carrier following an accident. Moreover, the AWW can significantly impact the value of any settlement received in a DBA claim.
Section 10 of the Longshore and Harbor Workers’ Compensation Act provides three methods of calculating the AWW. Section 10(a) deals with five day a week workers, and Section 10(b) deals with six day a week workers. As most overseas workers are logging in seven day a week work schedules, we will not address those two sections here. However, the Act provides a third method of calculating the AWW, found in Section 10(c):
“If either [subsection 10(a) or 10(b)] cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and the employment in which he was working at the time of his injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.” Continue reading →