DBA Newsletter
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WELCOME TO THE DBA NEWSLETTER, PREPARED BY BARNETT, LERNER, KARSEN & FRANKEL, P.A. WE HOPE THIS WILL HELP YOU LEARN MORE ABOUT THE DEFENSE BASE ACT AND YOUR LEGAL RIGHTS.
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Notice of Injury
By Anna Castro, Esq.
When you get hurt, it is important that you notify your Employer as soon as possible to protect your right to benefits under the Defense Base Act. If notice to your Employer is late, or the Employer is not notified at all, your Employer and insurance company may deny your claim for DBA benefits. Notice under Section 12(a) of the Act, 33 U.S.C. §912(a), states that “…notice of an injury or death in respect of which compensation is payable under this Act shall be given within thirty days after the date or such injury or death, or thirty days after the employee or beneficiary is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of a relationship between the injury or death and the employment…”
Luckily, under the Act, an injured worker is afforded a presumption under 33 U.S.C. §920(b) that “sufficient notice of claim has been given” to the Employer. This means that the burden is on the Employer to show, through substantial evidence, that the injured worker didn’t notify the Employer within 30 days of being hurt. What constitutes substantial evidence will generally vary from case to case. Generally, however, the Employer/Carrier must produce facts, not speculation, to overcome the presumption. In the absence of substantial evidence to the contrary, it is presumed that an Employer has been given sufficient notice of the injury pursuant to Section 12(a). If you are late reporting your accident or injuries, the Employer will usually obtain a written statement or affidavit from your supervisor stating you never reported anything.
If an Employer is able to rebut the statutory presumption of notice, and produce substantial evidence that notice was untimely, failure to give notice may still not bar your claim for benefits in very specific instances. For example, if the Employer had knowledge of the injury through some other fashion, such as an accident report, medical report, or witness statement, your claim may still be viable. Additionally, if the Employer has not been prejudiced by an injured workers failure to give notice, your claim may similarly not be barred. Prejudice may be established where the Employer provides substantial evidence that due to a claimant’s failure to provide timely written notice, it was unable to effectively investigate the injury to determine the nature and extent of the illness or to provide medical services. In other words, the Employer has the burden to prove that because of the lack of notice or untimely notice, they were unable to verify and/or investigate the basis of the claim. However, arguing “no prejudice” does have one negative side effect – it negates the presumption under Section 20 that you timely notified your Employer. This makes sense: if the Employer says it was never told of an accident, and you argue the lack of knowledge did not prejudice the Employer’s ability to investigate your claim, you are essentially admitting you never told your Employer!
The most important thing to remember is that you have 30 days to report an accident or injury to your Employer. The report does not have to be on any official form; any notice, verbal, written, email, text, etc., will be sufficient. If possible, inform your Employer in front of witnesses, just in case you need a statement from someone confirming you reported an accident. Witness statements are wonderful ways to corroborate an accident, injuries, and timely reporting!
As always, if you have any questions about your compensation benefits, the amount you are receiving, or when they might end, please feel free to contact our attorneys at mail@barnettandlerner.com.
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Barnett, Lerner, Karsen & Frankel, P.A.
2860 Marina Mile Blvd., Suite 105
Ft. Lauderdale, FL 33312
(954) 920-7400
(954) 920-9492 facsimile
(888) 732-7425 U.S. Toll Free
http://www.injuredoverseas.