One thing you need to know about Defense Base Act claims is the amount of money at stake. The average medical bills in a serious or catastrophic (life-threatening) injury case usually exceed $40,000. Furthermore, the total missed days from work due to on-the-job injuries tripled in 2022. Experts believe that number will climb even higher in the coming years. Falls, followed closely by assaults, are the most common trauma injury claims among overseas military contractors. Hearing loss, followed closely by toxic exposure, is the most common occupational disease.
A Defense Base Act lawyer obtains the compensation and other benefits these victims need to get back to work full-speed as quickly as possible. In the end, that is what everyone wants. As outlined below, maximum compensation in a DBA case is a process, not a result. Any misstep in this process usually means the victim must settle for less or even nothing.
Kinds of Workplace Injuries
We touched on the kinds of contractor injuries above. The kind of injury usually dictates the DBA procedure, at least to an extent.
Trauma injuries include falls and, in this case, gunshot wounds. These injuries occur suddenly and out of nowhere, often in an environment the victim believed was safe. Occupational diseases occur slowly over time. Additionally, these illnesses often have long latency periods. So, many victims don’t know they are sick.
Initial Filing Deadline
This deadline varies according to different insurance policies, but it is usually about 10 days after the date of injury. If a victim files late, the victim could lose the right to obtain benefits.
These benefits usually include medical bill payments. Most DBA policies reimburse all reasonably necessary medical expenses. Normally, a DBA lawyer connects victims with doctors who do not charge anything upfront. So, when the case settles or is otherwise resolved, the insurance company pays the medical costs, and victims are not financially responsible for any unpaid charges.
That seems straightforward, but the collateral source rule, which varies in different states, often comes into play. It applies if a collateral source, like a health insurance policy, covers some economic losses, such as medical expenses.
Assume Ben’s wife’s health insurance policy covers $40,000 of his $50k hospital bill. Usually, the insurance company must reimburse Ben for the full $50k, not the reduced $10k. Insurance companies should not receive financial windfalls because victims have the foresight to buy health insurance policies.
Incidentally, many health insurance companies exclude injury-related costs. So, when Ben’s wife’s insurance company finds out about the cause, it may demand that Ben return that $40k. But that’s the subject of a different blog.
The filing deadline itself could be an issue in occupational disease claims. As mentioned, symptoms do not immediately appear. Furthermore, most hearing loss victims do not run to the doctor the moment they must turn up the TV volume.
Another rather obscure legal rule, the delayed discovery rule, protects victims in these situations. Usually, victims do not have to file a claim until they know the full extent of their losses, and they connect those losses with their overseas deployments.
Settlement Conference
At a subsequent settlement conference, a mediator meets with both sides and tries to steer them to a settlement. Sometimes, these conferences are successful. Usually, they are not.
We discussed some common legal issues related to the medical expenses above. DBA mediators, who usually are not lawyers and never hear legal arguments from Defense Base Act lawyers, are in no position to resolve these dilemmas.
Similar issues apply to lost wage replacement. Typically, injured overseas contractors receive two-thirds of their average weekly wage (AWW) for the duration of their permanent or temporary disabilities.
The disability date could be an issue in permanent disability claims. As mentioned, many injured contractors try to “tough it out” and keep working even though they are technically disabled. These victims could be entitled to substantial back pay.
AWW calculation is often an issue in temporary disability claims. Most contractors go overseas on short-term contracts, and most of these positions pay much more than their old jobs. So, a victim’s prior wages do not reflect current income.
A DBA lawyer must ensure that the lost wage replacement benefit is based on the current AWW, not the prior one. Additionally, the AWW calculation must account for future lost income due to disability, such as overtime opportunities.
Administrative Law Judge Review
If the case does not settle on victim-friendly terms, a DBA lawyer usually sets the matter for an ALJ appeal hearing. These hearings are basically trials that occur in private.
At ALJ hearings, DBA lawyers can make legal arguments, challenge evidence, and introduce evidence. However, there is no jury and no court reporter. Furthermore, the ALJ is not a full judge. In fact, most ALJs are insurance company employees.
Nevertheless, most ALJs are fair. Additionally, the format is much different, as outlined above. For these reasons, insurance company lawyers know they face an uphill climb at ALJ hearings. ALJs do not rubber-stamp claims, and skilled lawyers advocate for victims.
As a result, the insurance company is usually highly motivated to settle the case and avoid the risk of a hearing. Furthermore, all claims are ripe for settlement at this point. If medical treatment is not substantially complete at the time of the settlement conference, any settlement might not account for future medical expenses. If that happens, the victim is financially responsible for these costs.
For more information about DBA eligibility, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.