What is the Defense Bases Law?

The Defense Basis Act (DBA) is an extension of the federal workers’ compensation program that covers longshoremen and longshore workers. The Defense Bases Act covers people employed at US defense bases abroad. The Defense Basis 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 BASIC DEFENSE LAW?

Generally, workers employed by US contractors performing public works for the US government on US territories, on US military bases located outside the continental United States, and in support of programs of military aid within allied nations. 42 USC section 1651(a). Also, people who are employed abroad for moral and welfare projects, such as the American Red Cross, the USO, and the Salvation Army, are generally covered. “Public works” is defined in 42 USC section 1651(b)(1).

TECHNICAL REQUIREMENTS AND FILES

The initial technical requirement of the Act is to report the injury immediately to the immediate supervisor. Notification of injury must also be given in writing using the LS 201 form. Once this is done, medical treatment is usually 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 from the date of the injury or the last compensation payment, whichever is later. Other forms used in Defense Basis Act claims can be accessed on the LHWCA forms page.

INDEMNIFICATION PAYMENT

There is a three-day waiting period (the length of time you must wait before compensation is due) under the LHWCA. Later, if an injury is serious enough to prevent the employee from returning to work, the employer (or his or her insurer) must pay compensation to the injured worker. The amount of compensation paid is usually calculated by taking an employee’s salary from the year before the injury and dividing it by 52. ​​This is known as the average weekly wage (AWW). If the employee has worked at the same job for the entire period, the calculation is quite simple. If the employee has not worked “substantially the full year” in the same type of employment, alternative methods may be used to determine the AWW. 33 USC Section 910(b). A similar employee may 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 by the number of days per week normally worked. The courts are divided on the question of whether the lowest earnings in the United States should be used to determine the AWW and compensation rating. Once the Average Weekly Wage (AWW) is established, it is multiplied by two-thirds and this figure, the Compensation Rate (CR) is the amount of money the injured worker should receive each week they are disabled. There is a maximum rate that changes periodically. Generally, DBA insurers pay every two weeks. Once the “total disability” compensation rate is set, it does not change and there are no increases for cost of living or inflation.

Benefits are generally paid until the injured worker returns to work or is able to return to work and suitable work is available. For example, if an injured worker fully recovers from his or her injury and is able to return to regular work, total disability benefits end. Also, even if an injured worker is unable to return to regular work due to medical restrictions, compensation ends if the employer offers the employee a suitable job. Aside from offering a job, the employer/insurer may suspend total disability compensation if it can prove that suitable jobs exist in the employee’s commuting area. If those jobs do not meet or exceed the injured worker’s previously established AWW, the employer/insurer may be required to pay partial disability benefits or a “scheduled award,” depending on the nature of the original injury.

There are certain injuries that are subject to a scheduled award. For example, if an injured worker has an arm injury, is in MMI, work is available, and has a permanent disability rating of 10%, he or she would be entitled to scheduled compensation, but not further total disability benefits. , unless there is a change in condition. However, if a person has a back injury and is in MMI, he or she would still be entitled to total disability benefits if he or she can show that he or she has made a diligent but unsuccessful attempt to find a suitable job. This is normally a litigated issue and there are many scenarios that can come into play. 33 USC section 908 contains a complete list of “scheduled injuries.”

“Maximum medical improvement” is a medical term that means the employee has recovered as much as can be expected from their injuries and the medical providers have done all they can medically do. If the employee has reached this point and is still unable to work, he or she may be entitled to “permanent and total” disability (PTD) benefits. These benefits are generally reserved for those injured workers who are unlikely to be able to work for the rest of their lives. This benefit carries an automatic cost-of-living allowance.

MEDICAL TREATMENT

While under the Longshore and Harbor Workers’ Compensation Act (LHWCA), the employee has the right to choose their doctor to treat them at the expense of the employer/insurer. Because these cases typically originate in overseas military areas, this may not be practical at the time of injury. An employee injured in Iraq can only have one source of treatment. Therefore, there is no choice. In that situation, an employee may agree to treatment without making his or her “choice of doctor” at that time. If the injury is serious enough to require a return home, the employee may choose doctors at that time. The election is a unique election; if the election is made abroad, it cannot be made after the injured worker returns home. Medical benefits under the DBA include prescription drugs, medical equipment or appliances, mileage, parking, and other medical expenses that are prescribed by a licensed physician and are reasonable and necessary. Medical expenses are paid according to a fee schedule and the entire bill is not usually paid. However, the injured worker is not responsible for the unpaid portion.

AGREEMENT AND ATTORNEY FEES

There is a mechanism under which cases under the DBA can be resolved. The agreements are voluntary and neither party forces the other to reach an agreement. 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 does not settle. In addition, 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 that allows an injured worker or employer/insurer to bring a case before an ALJ to determine their worth. . As for attorneys’ fees, contingency fees (ie 25% of profits collected) are not allowed in these cases and attorneys are paid 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 wins, her attorney files a Petition for Fees with the judge for approval. The employer/insurer has the opportunity to respond to the request. The approved rate 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 rates are also subject to approval by the judge or the District Director of the Office of Workers’ Compensation Programs (OWCP).