If you are a contractor who has been injured on the job while working overseas in Iraq, Afghanistan, Kuwait, Syria 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., our qualified defense base act lawyers 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.

Our experenced Defense Base Act Lawyers are here to help you with any questions you have regarding your DBA case. Here are some very interesting facts and case summaries regarding Total Disability in a DBA or Longshore case coming directly from the Judge’s Benchbook from the Office of Administrative Law Judges. Let our experienced Defense Base Act Attorneys answer your questions. The Judge’s Benchbook is a searchable website which is a public record. According to the Judge’s Benchbook:

Total disability is defined as complete incapacity to earn pre-injury wages in the same work as at the time of injury or in any other employment. Under current case law, the employee has the initial burden of proving total disability. To establish a prima facie case of total disability, the claimant must show that he cannot return to his regular or usual employment due to his work-related injury.
Even a minor physical impairment can establish total disability if it prevents the employee from performing her usual employment, Elliot, 16 BRBS at 92 n.4, or from performing the only kind of employment for which she is qualified. Equitable Equip. Co. v. Hardy, 558 F.2d 1192, 6 BRBS 666 (5th Cir. 1977), vacating on other grounds 3 BRBS 426 (1976); Nardella v. Campbell Mach., 525 F.2d 46, 49, 3 BRBS 78, 80 (9th Cir. 1975); American Mut. Ins. Co. v. Jones, 426 F.2d 1263 (D.C. Cir. 1970); Tezeno v. Consolidated Aluminum Corp., 13 BRBS 778 (1981); Pilkington v. Sun Shipbuilding & Dry Dock Co., 9 BRBS 473, 476 (1978); Ridgely v. Great Lakes Storage & Contracting Co., 7 BRBS 297 (1977), aff’d sub nom. Ridgley v. Ceres, Inc., 594 F.2d 1175, 9 BRBS 948 (8th Cir. 1979). It is irrelevant that a physician terms such an impairment “partial.” Employers Liability Assurance Corp. v. Hughes, 188 F. Supp. 623 (S.D.N.Y. 1959). The claimant’s credible complaints of pain alone may be enough to meet his burden. Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Richardson v. Safeway Stores, 14 BRBS 855 (1982); Miranda v. Excavation Constr., 13 BRBS 882, 884 (1981); Golden v. Eller & Co., 8 BRBS 846 (1978), aff’d, 620 F.2d 71, 12 BRBS 348 (5th Cir. 1980). On the other hand, a judge may find an employee able to do his usual work despite his complaints of pain, numbness, and weakness, when a physician finds no functional impairment. Peterson v. Washington Metro. Area Transit Auth., 13 BRBS 891 (1981).

A psychiatrist’s opinion that the claimant’s medication would limit him to part-time work with limited responsibilities establishes that he cannot perform his usual employment. Brown v. Potomac Elec. Power Co., 15 BRBS 337, 339 (1983).

Similarly, a physician’s opinion that the employee’s return to his usual or similar work would aggravate his condition is sufficient to support a finding of total disability. Care v. Washington Metro. Area Transit Auth., 21 BRBS 248 (1988); Lobue v. Army & Air Force Exch. Serv., 15 BRBS 407 (1983); Sweitzer v. Lockheed Shipbuilding & Constr. Co., 8 BRBS 257, 261 (1978). Contra Van Dyke v. Newport News Shipbuilding & Dry Dock Co., 8 BRBS 388 (1978) (not total merely because continued employment would be hazardous to employee’s health).

If the physician recommends surgery and light-duty work and the claimant experiences pain while performing many activities, he has also met his burden. Carter v. General Elevator Co., 14 BRBS 90 (1981). See Offshore Food Serv. v. Murillo, 1 BRBS 9 (1974), aff’d sub nom. Offshore Food Serv. v. Benefits Review Bd., 524 F.2d 967, 3 BRBS 139 (5th Cir. 1975).

The ALJ may find that claimant cannot perform his usual employment, even if he did so for several months after his injury, if the claimant must either wear ear protection, impairing his ability to hear warnings, or suffer pain due to the effect of ambient noise on the injured ear. Nguyen v. Ebbtide Fabricators, Inc., 19 BRBS 142 (1986).

If the claimant’s physical injury leads to psychological injuries, including alcoholism, the ALJ may find him permanently totally disabled. Parent v. Duluth, Missabe & Iron Range Ry. Co., 7 BRBS 41 (1977); Mitchell v. Lake Charles Stevedores, 5 BRBS 777 (1977); Carpenter v. Potomac Iron Works, 1 BRBS 332 (1975), aff’d mem., 535 F.2d 1325 (D.C. Cir. 1976) (compensation neurosis secondary to compensable injury may establish permanent total disability).

If you have a question about Total Disability or any other question in your DBA or Longshore case, contact our qualified defense base act attorneys 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.

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.


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