We spend a lot of time talking about what an injured worker or the insurance company should do when we are discussing Defense Base Act claims, but the employer also has a number of obligations even before a worker is hurt on an overseas job.
Before Going Overseas
It may seem obvious to mention, but the first thing an employer must do when they are hiring for
overseas jobs is to obtain DBA insurance before any employees are sent over to the jobs. This is a highly specialized type of insurance, and the company must be authorized to write this by the Office of Workers Compensation Programs.
Failure to obtain this insurance coverage leaves the employer “bare” and outside the protection of the worker’s compensation laws of the Defense Base Act. This means an injured worker or family may sue under common law, where the award may be significantly higher than under the DBA system.
Notice of this coverage must be given to the employee, by way of Form LS 241, which is provided by the insurance carrier. This notice is often included in the paperwork given to a newly hired employee, and should be posted in every place the company does business.
The employer must then inform the employee about the DBA coverage, and how to report an injury if they are hurt on the job. This usually occurs during orientation or safety meetings at the beginning of employment.
Sometimes an employer is self-insured and there is no insurance company involved. Sometimes a waiver from the insurance requirement is granted in specific circumstances, such as…..
If An Injury or Death Has Occurred:
You (or your survivors) MUST report your injury or death as soon as possible to your employer before they have any obligations. The employer must then report your injury or death to the Office of Workers Compensation Programs on form LS 202 within 10 days of notice.
If the employer does not fulfill this obligation in a timely manner, they can be subject to penalties. In some cases, if the job is very remote and no bad faith is found in failing to report, they may not be assessed these penalties. If it is found that there is bad faith in failing to report, the penalties may be more severe.
The next the employer should do is report the accident to their insurance carrier. The carrier usually takes over on the matter at this point in time, but not always.
Authorization for Medical Treatment Under DBA
Your employer is responsible for authorizing any necessary medical treatment when requested or upon notice of injury. In cases where there is severe trauma and immediate care is necessary, obviously the closest facility is best. After the immediate danger is over, and when you have returned to the U.S., you are entitled to choose your own doctor; they cannot make that treatment decision for you.
Additionally, if there are lingering issues, such as long term rehabilitation or continuing care, the employer has a duty to authorize that care. Authorization for medical treatment may be made verbally, but should be followed up in writing so there is no issue as to whether it was authorized or not.
Provide Employment, Earnings, Medical & Other Information
When the Office of Workers Compensation Programs requests information from the employer, they are required to comply with those requests and furnish that information. This can consist of employment history, earnings history, medical information or any other type of information the OWCP may think is relevant to the claim.
Duty to Assist Injured Worker or Family in Making Claim
It may surprise you to know that the employer has a duty to assist the injured worker or the family in filing a claim. There are even some cases where the insurance company has denied a claim that the employer believes is valid. Usually the problem is a lack of documentation or communication that can be cleared up.
What Happens If They Don’t Comply?
There are numerous consequences for not complying with the requirements under the Defense Base Act. Failing to obtain insurance or a waiver can result in criminal prosecution – fines and possibly jail time. The president, secretary and treasurer of a corporation can each be individually prosecuted and could be personally liable for compensation and any other benefits awarded.
As mentioned earlier, failure to obtain the proper insurance coverage can also result in the injured worker or family suing the employer under general tort law. This means the employer is not able to use the usual defenses that would deny recovery to the worker, such as the worker’s contribution to their own injury and the worker’s negligence or wrongdoing. This means the employer is greatly exposed to liability, so there is incentive to have the insurance.
There are lesser penalties for lesser infractions. Failure to inform the worker of the insurance coverage (posting the LS 241) or designating a person to report to will excuse the late reporting of the injury by the worker, because they were never told to whom and how to report the injury. Failure to report the injury to the OWCP within 10 days of notice of the injury could result in a fine of $11,000 and extends the time the employee has to file the claim, as the clock does not start on the claim until the employer has filed the LS 202 with the OWCP.
Different Roles, Different Duties
All the parties involved in a DBA claim have certain responsibilities in moving the claim along. If you have been injured, and think that your employer is not doing all that is required by the Defense Base Act, you should consult with an experienced DBA attorney.