jump to navigation

The Defense Base Act – What is it and what rights does it provide? March 18, 2008

Posted by Herb Chestnut in Uncategorized.
Tags: , , , , ,
trackback

The Defense Base Act (DBA) is an extension to the federal workers’ compensation program which covers longshoremen and harbor workers. The Defense Base Act covers persons employed at U.S. defense bases overseas. The Defense Base Act is designed to provide medical treatment and compensation to employees of defense contractors injured in the scope and course of employment.

WHO IS COVERED BY THE DEFENSE BASE ACT?

Generally, workers employed by American contractors performing public works for the U.S. government in U.S. territories, at U.S. military bases located outside the continental United States and in support of military aid programs within allied nations. 42 U.S.C. section 1651 (a). Also, persons who are employed overseas by welfare and morale projects such as the American Red Cross, the U.S.O. and the Salvation Army are generally covered. “Public Works” is defined in 42 U.S.C section 1651(b)(1).

TECHNICAL REQUIREMENTS & FILINGS

The initial technical requirement of the Act is to report the injury immediately to one’s immediate supervisor. Notice of the injury should also be given in writing using form LS 201. Once that is done, medical treatment is generally offered. It is the employee’s responsibility to file a claim (form LS 203) with the Office of Workers’ Compensation Programs. This is required within one year of the date of injury or the last payment of compensation, whichever is later. Other forms utilized in Defense Base Act claims may be accessed at the LHWCA Forms Page.

PAYMENT OF COMPENSATION

There is a three day waiting period (the period of time one must wait before compensation is due) under the LHWCA. Thereafter, if an injury is serious enough to prevent the employee from returning to work, the employer (or its insurer) must pay compensation to the injured worker. The amount of compensation paid is generally calculated by taking an employee’s wages from the year prior to the injury and dividing by 52. This is known as the average weekly wage (AWW). If the employee has worked in the same job for the entire period, the calculation is simple enough. If the employee has not worked “substantially the whole year” in the same type of employment, alternate methods may be used to determine AWW. 33 USC Section 910(b). A similar employee can be used or if Sections (a) or (b) cannot be fairly applied, there are several alternatives such as taking a daily wage and multiplying it be the number of days per week ordinarily worked. Courts are split on the issue of whether lower stateside earnings should be used to determine AWW and compensation rated. See a discussion of this in in the post – Are You Receiving the Proper Amount in Workers’ Compensation Benefits? Once the average weekly wage (AWW) is established, this is multiplied by two-thirds and this figure, the compensation rate (CR) is the amount of money the injured worker is to receive each week he or she is disabled. There is a maximum rate which changes periodically. Generally, DBA insurers pay every two weeks. Once the compensation rate for “total disability” is established, it does not change and there are no increases for cost of living or inflation.Compensation rates can be calculated using our TTD and PPD (scheduled award) calculators.

Benefits are generally paid until the injured worker returns to work or is capable of returning to work and suitable work is available. For example, if an injured worker fully recovers from his or her injury and can return to his or her regular job, total disability benefits end. Also, even if an injured worker cannot return to his regular job due to a physicians restrictions, compensation end if the employer offers the employee suitable work. Short of offering a job, the employer/insurer may stop compensation for total disability if it can prove that there are suitable jobs which exist in the employees commuting area. If those jobs to not meet or exceed the injured worker’s previously established AWW, the employer/carrier may have to pay either partial disability benefits or a “scheduled award”, depending on the nature of the original injury.

There are certain injuries which are subject to a scheduled award. For example, if an injured worker has an arm injury, is at MMI, work is available and has a 10% permanent impairment rating, he or she would be entitled to a scheduled award but no further total disability benefits unless there is a change in condition. However, if a person has a back injury and is at MMI, he or she would still be entitled to total disability benefits if he can prove that he or she has made a diligent but unsuccessful attempt to find suitable work. This is normally a issue which is litigated and there are many scenarios which may come into play. 33 U.S.C. section 908 contains a complete list of “scheduled injuries.”

“Maximum medical improvement” is a medical term which signifies that the employee has recovered from his or her injuries as much as can be expected and the medical providers have done everything they can do medically. If the employee reached this point and still cannot work, he or she may be entitled to “permanent and total” (PTD) disability benefits. These benefits are generally reserved for those injured workers who will most likely be unable to work for the rest of their lives. This benefit carries with it an automatic cost of living allowance.

MEDICAL TREATMENT

While under the Longshore & Harbor Workers’ Compensation Act (LHWCA), the employee has the right to choose his or her physician to be seen at the employer/insurer’s expense. Because these cases generally originate overseas in military areas, this may not be practical at the time of the injury. An employee injured in Iraq may only have one source of treatment. Therefore, there is no choice. In that situation, an employee can accept the treatment without making his or her “choice of physician” at that time. If the injury is serious enough to require a return home, the employee can make his or her choice of physicians at that time. The choice is a one time election; if the election is made overseas, it cannot be made thereafter once the injured worker returns home. The medical benefits under the DBA includes prescription medications, medical equipment or appliances, mileage, parking and other medical expenses that are prescribed by an authorized physician and both reasonable and necessary. The medical expenses are paid under a fee schedule and the total bill is normally not paid. However, the injured worker is not responsible for the portion not paid.

SETTLEMENT AND ATTORNEYS’ FEES

There is a mechanism under which cases under the DBA may be settled. Settlements are voluntary and no one side an force the other to settle. Like most other workers’ compensation systems, there are no damages’ such as pain and suffering. The amount of the settlement depends on what the employer/insurer could expect to pay if the case is not settled. Also, while there is a program where an Administrative Law Judge (ALJ) will mediate a case for the parties, there is no provision in the Act which allows an injured worker or employer/insurer to present the case before and ALJ to determine its value. As to attorneys’ fees, in these cases, there are no contingency fees allowed (i.e. 25% of benefits collected) and attorneys are paid based on an hourly rate. These fees are generally paid after litigation or at settlement and by the employer/insurer. After a hearing, if the injured worker prevails, his or her attorney submits a Fee Petition to the judge for approval. The employer/insurer is given the opportunity to respond to the petition. The approved fee is paid by the insurer. Similarly, if a case is settled, the fee is generally paid by the insurer and may be subject to negotiation with the insurer as part of the settlement package. These fees are also subject to approval of either the judge or the District Director of the Office of Workers’ Compensation Programs (OWCP).

About these ads

Comments»

1. crow - April 15, 2008

This is from Congressional testimony delivered on 9-18-2007 by Shelby Hallmark, the director of the DBA program:

The injured worker has the initial choice of physician. They can,
obviously, in many cases go to a DOD facility in Iraq, but then when they’re
home they can choose a private physician of their choice, or they can use
military facilities. We will refer individuals to other specialists if
their condition requires that and it’s connected to the accepted injury.

2. crow - April 15, 2008

Note: Texas Work Force states that KBR is a recruiting agent for SEII only. Simply put, Not the last employer.

3. Matt - June 3, 2008

Hey, thanks a ton for starting this blog. The more guys know about how the system works, the better. The DBA program should have no mystery behind it, and should be totally transparent to those that need to know. If anyone is interested in checking out a blog about the security contracting industry, I write one called Feral Jundi. It is located at http://www.feraljundi.com . Take care.

4. jackle - June 3, 2008

Don’t leave out CFR 20 and all it’s statues and regulations that apply.

5. Labor Market Surveys and the Defense Base Act – How your benefits can be reduced « The Defense Base Act Blog - July 22, 2008

[…] or have limitations which prevent you from returning to your original position overseas, the weekly benefit you receive of 2/3 of your weekly wages (with caps depending on the year in which you were injured) […]

6. Post Traumatic Stress Disorder (PTSD) and the Defense Base Act « The Defense Base Act Blog - September 10, 2008

[…] The irony is that someone suffering from PTSD must both rationalize that there is something wrong emotionally/physically and then seek medical treatment but also make the rational choice to file a claim regarding your symptoms during the limited period available to file a claim. […]

7. Just a guy. - September 15, 2008

If I resigned (a week ago) because of my PTSD symptoms while in Iraq, but didnt tell my supervisor about these symptoms can I still file a claim under DBA for my PTSD?

I am having a hell of a time sleeping, anxiety attacks, and just unfounded “panic attacks” for lack of a better description feeling certain that I am about to get hit, etc.. I have been there many times before, but this last time, for me was a ball buster.

Anyhow, I am home now, but not the same, just a mess.

What are the steps I need to take to file a claim, etc? I would like very much to get treatment. I have health, vision, dental insurance from the firm I worked for till the end of this month. Money is tight, so I might just need to find something to help me get through another 90 day stint. Sleeping takes a lot of work and sometimes I just get stuck – can’t hardly do anything besides work, eat, hide in room (try to sleep), repeat. But work is the shits, just going through the motions, not doing anything that my mind might associate with extra risks at that moment. Really, the thing for me was that I noticed I was not myself. but instead this little creature that seemed withdrawn, secretive, beyond cautious, strange. I don’t do the things I like to do. My brain is an endless maze of contingencies. Yeah, I am a train wreck, but I am not drinking or doing drugs, keeping it together as best I can.

Kathy Reed Ray - July 19, 2009

I suufer from the same go to your nearest VA Representative they will file your claim for ptsd it doesnt cost you a thing . you will have to see VA doc and it takes of from there.Veteran Kathy Reed Ray

8. AIG in financial crisis, will this effect my Workers’ Compensation benefits under the Defense Base Act? - Part 2 « The Defense Base Act Blog - September 24, 2008

[…] the Defense Base Act extension to the Longshore and Harbor Workers’ Compensation Act (LHWCA), if the insurer is insolvent, the employer would then be responsible for paying these […]

9. Harold Burke - January 16, 2009

I understand that a claim is requireed to be filed within one year after the cessation of compensation or date of injury. Have you encountered situations in which injured foreign contractors have not been apprised of their DBA rights and have not filed within the one year period? How have these cases been resuscitated and have courts been hostile to protecting the filing rights of the injured workers?

10. Is the Anaconda burn pit linked to illnesses in KBR contactors? « The Defense Base Act Blog - March 7, 2009

[…] exposure, we encourage you to seek medical attention. Also be aware that you only have two years to file a claim with the Department of Labor. That two year clock is likely to begin no later than at the point where you have been given […]

11. Iraq veteran disabled by “Iraq’s Agent Orange” due to exposure to hexavalent chromium « The Defense Base Act Blog - March 9, 2009

[…] condition on the job or soon after, even if you have a history of problems, you may be entitled to medical treatment and even weekly cash benefits depending on the extent of your […]

12. Waslawa - April 17, 2009

How is it determined whether your have scheduled or unscheduled PPD? Or both? The difference looks like it could be huge. I have both foot and back injuries with impairments of 8% and 11% respectively, have reached MMI, have done the voc rehab thing, and am now awaiting hearing from CNA regarding a settlement. And how long does unscheduled last for?

Thanks

Herb Chestnut - May 11, 2009

Schedule awards are computed by multiplying your percentage of disability by the maximum number of weeks for that body part. That determines the number of weeks you are entitled to additional benefits. However, before the carrier can start these, you must be at maximum medical improvement (MMI) and the carrier must prove that suitable jobs exist.

For the list of scheduled injuries, see http://www.dol.gov/esa/owcp/dlhwc/lhwca.htm#908.

13. Ron - September 3, 2009

What if you can’t work due to pain in both knees, left leg, PTSD problems and continuos back pain. I’m not able to even sit or stand for so long before the pain starts. I can’t sleep unless I take sleep medication every night and have numerous headaches at times too. I have TMJ as well but was not approved for any surgeries on this matter too. I have head problems too and eye sight adjustment problems.

No one would even hire me this way even if I tried. They would all label me as a crazy person.

Herb Chestnut - September 3, 2009

Ron,

Are you getting DBA benefits now? I would like to know more about your situation. It sounds like the insurer is not accepting all of the problems that you have. You can email me privately at herbchestnut@bellsouth.net or call me toll free at 800-881-4892.

Herb Chestnut

14. SAM - November 17, 2009

what is the time limit to apply for help for KRB worker returning home with health problems?

15. martin - July 9, 2010

if a person leaves country, contract incomplete, who has to pay for return to us?

16. Leilani - August 27, 2011

Do I have to apply for benefits under the DBA? My case is due to a unreported sexual assault that resulted in serious PTSD symptoms. A doc recommended I leave country within 72 hours. Now I’m back and have received emails advising me to file for compensation. Due to the sensitive nature of the case, I’m not sure I want to relive the nightmare or report the person responsible. Is all of this mandatory?


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.