If you are a contractor who has been injured on the job while working overseas in Iraq, Afghanistan or on any military base across the world, your case is covered by the Defense Base Act which is an extension of the Longshore and Harbor Workers’ Compensation Act. At the Law Offices of Gillis, Mermell & Pacheco, P.A., we have a combination of over 43 years of experience in representing injured workers covered by the Defense Base Act and the Longshore and Harbor Workers’ Compensation Act. Let us put our years of experience and our reputation to work for you today! Contact us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Here are some very interesting facts and case summaries regarding death benefits in a DBA or Longshore case coming directly from the Longshore Deskbook from the Benefits Review Board. The Longshore Desk Book is a searchable website which is a public record. According to the Longshore Deskbook:
Section 9(b) provides a formula for benefits for surviving spouses and children of deceased employees. Initially, the subsection states that if there is a widow or widower and no children of the deceased, the widow or widower is entitled to 50 percent of the decedent’s average weekly wage, payable “during widowhood, or dependent widowerhood.”
A literal reading of this subsection thus would require a widower, unlike a widow, to show dependency in order to receive death benefits. However, the Board has suggested that such unequal treatment is unconstitutional as a violation of the equal protection clause, and that the proper remedy would be to delete the word “dependent” from the section altogether. Andersen v. American President Lines, Inc., 11 BRBS 757, 766, n.7 (1980). In Andersen, the Board dismissed employer’s challenge to the constitutionality of such unequal treatment for want of proper standing. Accord Denton v. Northrop Corp., 21 BRBS 37 (1988).
Upon remarriage, widows/widowers receive a lump sum payment equal to two years of benefits. Following a widow/widower’s death or remarriage, children of decedent share in equal parts 66 2/3 percent of decedent’s average wage, unless only one child remains, in which case he/she receives 50 percent of such wages. Any increase to the children as a result of the widow/widower’s remarriage accrues immediately upon the remarriage. American Mutual Liability Ins. Co. v. Smith, 766 F.2d 1513, 17 BRBS 139(CRT) (11th Cir. 1985), aff’g Da’Ville v. Movible Offshore, Ltd., 16 BRBS 215 (1984).
The Board has also held that Section 9(b) must be read in conjunction with Section 9(e) of the Act which provides minimum benefits. See infra. See also Dunn v. Equitable Equipment Co., 8 BRBS 18 (1978); Lombardo v. Moore-McCormack Lines, Inc., 6 BRBS 361 (1977); Gray v. Ferrary Marine Repairs, 5 BRBS 532 (1977).
Section 9(c) provides a benefit formula where there are surviving children but no surviving spouse identical to that provided in Section 9(b) where the spouse dies or remarries.
Section 9(d) provides that if there is no surviving spouse or child or if the amount payable to the surviving spouse or children totals less than 66 2/3 percent of decedent’s average weekly wage, then benefits may be paid to other dependents. Parents, grandparents, grandchildren, brothers and sisters of decedent may be considered “other dependents” if they establish that at the time of decedent’s injury, they were dependent at least in part upon the decedent for the maintenance of their accustomed standard of living. Fino v. Bethlehem Steel Corp., 5 BRBS 223 (1976). See Wilson v. Vecco Concrete Constr. Co., 16 BRBS 22, 27 (1983). In addition to these specific relatives, the Act states that “any other persons who satisfy” the definition of the term ‘dependent’ under the Internal Revenue Code definition, 26 U.S.C. §152, may receive benefits. Fino, 5 BRBS 223. Grandchildren, brothers, sisters, and such “other persons” receive 20 percent during dependency, and parents and grandparents are entitled to 25 percent.
If you have a question about death benefits in your DBA or Longshore case, Contact Us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Clifford R. Mermell, Esq., created the law firm of Gillis, Mermell & Pacheco, P.A. on March 1, 1996. Mr. Mermell has been the senior and managing partner of the firm since its creation. The firm was created to champion the rights of injured workers nationwide. It represents cases under the Worker’s Compensation, Wrongful Termination, Personal Injury, Admiralty and Maritime, Defense Base Act, and Longshore & Harbor Worker’s Compensation Act Laws.