If you have been working overseas for a U.S. contractor, and you have been injured or a loved one has been killed, you may have a Defense Base Act claim. The Defense Base Act (DBA) is a federal workers’ compensation program for those injured working overseas on military bases, public works projects and other U.S. sponsored projects.
How It Works
If you have been injured, and you required immediate medical help, you likely received treatment in the locale where you were working. You should notify your employer immediately of the injury. This is done by filing an LS-201 form, entitled Notice of Employee’s Injury or Death with your employer within 30 days of the injury. Even if you have been transported back stateside for treatment, you still must file this notice.
After 3 days of disability, you should contact your employer or their DBA insurance carrier for compensation. The compensation is due to be paid 14 days after your employer has notice of the injury.
The employer must file a LS-201, Notice of Employee’s Injury or Death. There is additional paperwork that must be filed, and here is where it is a great idea to have an experienced DBA attorney. Among other forms, you must file a report on your earnings – and you must be careful to make sure you are reporting everything properly to ensure getting your maximum benefit.
After the initial notice to your employer, the LS-203 Employee’s Claim for Compensation must be filed with a central clearinghouse office of the Division of Longshore & Harbor Workers Compensation, which is then forwarded to the appropriate district office of the United States Department of Labor. Each district office oversees claims from different parts of the world. Claims arising out of work in the Western Hemisphere of the world, such as Iraq, Afghanistan or Europe would be handled in the Region II New York office. Experienced DBA attorneys know the particulars of where and when to file claims, how to proceed for disputed claims and how to prove your medical circumstances if they are called into question by the insurance company.
This claim must be filed within one year of the injury, or last payment of compensation, whichever is later. A claim involving occupational disease (such as the burn pit illnesses) must be filed within two years. (This time frame is sometimes extended to filing within two years of discovery of the illness.) Many, many otherwise valid claims are denied because the claim was not filed in a timely manner.
Compensation for total disability is two-thirds of the employee’s average weekly earnings, up to a current maximum rate per week. Compensation is also payable for partial loss of earnings.
An important factor in pursuing any DBA claim – disputed or not – is to make sure that your Average Weekly Wage has been accurately calculated. Since the amount of your disability compensation is based on your Average Weekly Wage, often employers or insurance companies will not include all your earnings so they can minimize your AWW. An experienced DBA attorney will ensure that the other side is calculating your benefits correctly.
After the first emergency care, you are entitled to receive care from a doctor of your choice, but your employer must approve that care. Disputes can arise not so much about immediate care after an injury, but about ongoing, long-term care.
Under the DBA you are entitled to ongoing medical care “as the injury may require,” but the language of that phrase leaves lots of room for dispute. The DBA tries to give the claimant the benefit of the doubt by allowing you to treat with your own doctor, but the insurance company does have the right to have you examined by their doctor. It is no surprise conflicting medical opinions result.
Getting a proper medical evaluation is a critical factor in successfully prosecuting a DBA claim, especially if the claim has been disputed. Usually the awards for permanent partial disabilities are based on a percentage of impairment of the injured or disabled body part. It is extremely important that your injury is assessed by a doctor who is competent and experienced in assigning disability ratings. Be assured that the doctor hired by the insurance company is looking to minimize the percentage of disability and also the dollar amount due to you.
Not As Easy As It Sounds
In theory, this should be a straightforward process. In reality, it sometimes is not. Insurance companies can frustrate the process by failing to pay on a claim for a variety of reasons.
If the employer files an LS-207, Notice of Controversion of Right to Compensation, then they (or the insurance company) is disputing the claim. There are several reasons the claim might be disputed. It may be the employer thinks the injury did not occur in the course and scope of your work, or that there was no DBA coverage at time of injury. It may be they think there is no medical evidence to support the disability, or that they need more time to investigate the claim & get additional facts, or it may be there is a conflict of medical evidence. Whatever their reason (and it has to be stated on the LS-207), you definitely need professional help in pursuing your claim. Don’t hesitate to get an experienced DBA attorney, and definitely don’t agree to anything or sign anything until you have this help.
Just the Start
We have only discussed the very preliminary steps in pursuing a claim under the Defense Base Act. We will continue the discussion in subsequent articles. There are many strategies and compliance issues that can hurt or help your case. Experienced DBA attorneys know the particulars of where and when to file claims, how to proceed for disputed claims and how to prove your medical circumstances if they are called into question by the insurance company. An attorney experienced in pursuing Defense Base Act cases can make sure the details are attended to, and you receive all the compensation to which you are entitled.