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A Personal Injury, Workers' Compensation and Defense Base Act Law Firm Fighting for the Injured.

Articles Tagged with Defense Base Act

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Congratulations to Jon Stewart who spearheaded a long and hard fought battle to win medical and disability benefits for veterans who breathed smoke from burn pits during their service in the Iraq and Afghanistan wars. Although not widely known, virtually all of our service people and contractors stationed in the Middle East were exposed on their bases to the daily burning of their trash, plastic, medical waste, and toxic chemicals in open burn pits. Everyone breathed that polluted air on the army bases and it was not good.

What you need to know about the PACT Act and where it takes us from here:

  1. Many military and contract workers developed cancer, respiratory illness or lost their lives. Until now there has been limited recognition of this tragedy. Now with the passage of the PACT Act under S. 437 Health Care for Burn Pit Veterans Act the surviving veterans will get proper treatment and disability for cancer and respiratory issues through the Veterans Department.  Some conditions are presumptive and other conditions require a diagnosis from a doctor relating the condition. Also the VA can have you examined by their doctor. Certain conditions carry a presumption that they came from the burns pits so benefits can be awarded without a causal connection statement from a medical doctor.
  2. These cancers are now presumptive:Burn Pit
    • Brain cancer
    • Gastrointestinal cancer of any type
    • Glioblastoma
    • Head cancer of any type
    • Kidney cancer
    • Lymphatic cancer of any type
    • Lymphoma of any type
    • Melanoma
    • Neck cancer
    • Pancreatic cancer
    • Reproductive cancer of any type
    • Respiratory (breathing-related) cancer of any type

    These illnesses are now presumptive:

    • Asthma that was diagnosed after service
    • Chronic bronchitis
    • Chronic obstructive pulmonary disease (COPD)
    • Chronic rhinitis
    • Chronic sinusitis
    • Constrictive bronchiolitis or obliterative bronchiolitis
    • Emphysema
    • Granulomatous disease
    • Interstitial lung disease (ILD)
    • Pleuritis
    • Pulmonary fibrosis
    • Sarcoidosis
  3. Veterans can apply for coverage under the PACT (Promise to Address Comprehensive Toxins) Act.  This link takes you to the application form.  To quality the veteran must show employment during the time periods at these locations:
    • Iraq between August 2, 1990, and February 28, 1991, as well as from March 19, 2003, until burn pits are no longer used in this location;
    • Southwest Asia (including Kuwait, Saudi Arabia, Oman, and Qatar) from August 2, 1990, until burn pits are no longer used in these locations; and
    • Afghanistan, Syria, Jordan, Egypt, Lebanon, Yemen, and Djibouti from September 11, 2001, until burn pits are no longer used in these locations.

    This is a much needed recognition for many people who suffer with these conditions. For the families who had their service member return home only to suffer a long unexpected painful death from cancer or respiratory disease, the loss has been devastating. Family members may be entitled to survivor benefits and a modest funeral reimbursement. Read more at the VA site for the amounts.

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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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Burn PitWhen 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.

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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 →

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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.

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Multitude of Benefits Available Under the Defense Base Act/Longshore Act

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 →

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La Ley de Base de Defensa, comúnmente conocida como DBA, proporciona beneficios de Compensación y Muerte del Trabajador para los empleados de contratistas del gobierno. Permítanme explicar cómo funciona hacer un reclamo bajo esta ley.

Esta firma presenta reclamaciones de indemnización y muerte contra empresas como KBR, Fluor, Dyncorp, Academi, Lockheed Martin, SES, Servicios de Ciencia e Ingeniería, Sallyport, Michael Baker, Ciencias de la Computación Raytheon, CSR, Vinnell Arabia, MPRI Ltd., Engility, Tetra Tech , Planate Management Group, SOC, Mission Essential Personnel, AECOM, Triple Canopy y Green Group en un tribunal federal. Si usted era uno de los trabajadores contratistas, puede presentar una reclamación sin tener que venir a los Estados Unidos. Debe documentar su lesión consultando a un médico por una lesión física o psicológica causada por su empleo. Los beneficios que presentamos cubiertos por la Ley incluyen atención médica y salarios perdidos y beneficios de sobrevivientes en caso de fallecimiento. Para las personas que viven fuera de los Estados Unidos, esos beneficios generalmente se ofrecen en una suma global. Nunca somos más felices que cuando entregamos un cheque de liquidación grande a nuestros clientes. Los transportistas pagan nuestros honorarios y costos por separado en estas reclamaciones de DBA.

Una vez que el empleado regresa a casa, generalmente está solo para buscar atención médica. Las lesiones físicas pueden durar años y empeorar una vez que el empleado está en casa sin tratamiento. Los empleados que estaban estacionados en zonas de guerra a menudo desarrollan lesiones psicológicas como el trastorno de estrés postraumático (PTSD, por sus siglas en inglés) que permanece sin tratamiento durante años una vez que regresan a su país de origen. El empleado debe ver a un médico en su país de origen. Este bufete de abogados paga para que estos registros médicos sean transcritos por un traductor certificado, de modo que los registros puedan presentarse ante el tribunal y se haga un reclamo para obtener los beneficios adecuados.

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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:

IMG_9967-e1496774041913-1-225x300“1.  If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into.

2.  If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter.”Do not settle your third-party case without first obtaining written permission from both the employer and the DBA insurance company to settle the third party claim.  If you settle the third-party claim without getting written consent you will lose all future compensation and medical treatment payable by the DBA insurance company. If you are settling your third-party case for less than the compensation you are entitled to under the DBA case, you must obtain written approval on Longshore DBA Form LS-33 which must be filed within 30 days of the settlement with the District Director.
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hearing-protection-1532036Hearing 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).

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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.

received_324408114984759-e1541622913897-200x300Section 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 →

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Broward County Office (Main Office)
4403 W Tradewinds Ave
Lauderdale-By-The-Sea, FL 33308
Phone: 954-772-2644Fax: 954-772-2845
We serve the following localities: Broward County including Fort Lauderdale, Hollywood, Cooper City, Coral Springs, Hallandale Beach, Oakland Park, Parkland, Pembroke Pines, Plantation, and Weston; Martin County including Stuart; Miami-Dade County including Aventura, Miami, Coral Gables, Key Biscayne, Miami Beach, North Miami, and North Miami Beach; Palm Beach County including Boca Raton, Boynton Beach, Jupiter, and West Palm Beach; and St. Lucie County including Fort Pierce and Port St. Lucie.

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