Defense Base Act Lawyer discusses disability in a Defense Base Act case

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, or go on our website at 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 the question of disability 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 8 provides the standards used in determining claimant’s entitlement to compensation for disability under the Act.  Disability is defined in Section 2(10) as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment,” except in cases involving awards to retirees with occupational diseases compensated under Section 8(c)(23), in which case it means “permanent impairment.”  33 U.S.C. §902(10).
The 1984 Amendments expanded the definition to include permanent impairment and added Section 8(c)(23) in response to Board decisions holding claimants who were voluntarily retired when their occupational diseases became manifest were not entitled to benefits as they had withdrawn from the labor market and had no loss in wage-earning capacity; such employees thus had no disability under the pre-1984 definition of Section 2(10).  See Jones v. Newport News Shipbuilding & Dry Dock Co., 16 BR3S 347 (1984); Aduddell v. Owens-Corning Fiberglass, 16 BRBS 131 (1984); Redick v. Bethlehem Steel Corp., 16 BRBS 155 (1984).  The 1984 Amendments overruled these decisions, adding Sections 8(c)(23), 10(d)(2) and 10(i) to provide an average weekly wage and benefits based on permanent impairment to these individuals.
Under the general definition, disability under the Act is an economic concept based on a medical foundation.  Bath Iron Works Corp. v. White, 584 F.2d 569, 8 BRBS 818 (1st Cir. 1978); Owens v. Traynor, 274 F.Supp. 770 (D.Md. 1967), aff’d, 396 F.2d 783 (4th Cir. 1968), cert. denied, 393 U.S. 962 (1968); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969).  Disability is generally addressed in terms of its nature, permanent or temporary, and its extent, total or partial.  The nature of a disability is determined solely by medical evidence, see, e.g., SGS Control Services v. Director, OWCP, 86 F.3d 438, 30 BRBS 57(CRT) (5th Cir. 1996), while the extent of disability is an economic as well as a medical concept.  Quick v. Martin, 397 F.2d 644 (D.C. Cir. 1968); Eastern S.S. Lines v. Monahan, 110 F.2d 840 (1st Cir. 1940).  Thus, extent of disability cannot be measured by physical or medical condition alone.  Nardella v. Campbell Machine, Inc., 525 F. 2d 46, 3 BRBS 78 (9th Cir. 1975).  Even a relatively minor injury may lead to a finding of total disability if it prevents the employee from engaging in the only type of gainful employment for which he is qualified.  Pietrunti v. Director, OWCP, 119 F.3d 1035, 31 BRBS 84(CRT) (2d Cir. 1997); American Mutual Ins. Co. of Boston v. Jones, 426 F.2d 1263 (D.C. Cir. 1970).
An employment injury need not be the sole cause of a disability in order for it to be compensable.  Where a work-related injury or condition aggravates, accelerates or combines with a pre-existing condition, the entire resulting disability is compensable.  See, e.g., Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc); Newport News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d 327, 15 BRBS 52(CRT) (4th Cir. 1982); Hensley v. Washington Metropolitan Area Transit Authority, 655 F.2d 264, 13 BRBS 182(CRT) (D.C. Cir. 1981), cert. denied, 456 U.S. 904 (1982); Independent Stevedore Co. v. O’Leary, 357 F.2d 812 (9th Cir. 1966).  The “aggravation rule” is discussed in Section 2(2) of the desk book.
Where claimant sustains a non work-related injury following a work-related injury, employer is relieved of liability for disability due to this intervening cause.  See Section 2(2) of the desk book.  However, employer remains liable for any disability thereafter which is related to the work injury.  See Leach v. Thompson’s Dairy, Inc., 13 BRBS 231 (1981); Drake v. General Dynamics Corp., 11 BRBS 288 (1979).  In Drake, claimant had a work-related lung impairment resulting in partial disability when he had a non work-related motorcycle accident.  Holding that the administrative law judge erred in terminating all compensation during claimant’s convalescence from the accident, the Board stated that, as claimant is entitled to compensation “during the continuance of such disability” and there was no evidence that the loss of earning capacity due to his lung condition “magically disappeared” when he had the motorcycle accident, he was entitled to compensation for the extent of his lost earning capacity during convalescence and afterward.  See Bay Ridge Operating Co. v. Lowe, 14 F.Supp. 280 (S.D.N.Y. 1936) (employer was not entitled to discontinue payments where the employee was committed to an asylum due to conditions arising after his employment.).
If you have a question about your disability, Contact Us today at, or go on our website at and fill out our form on the contact us page, or call us at 305 595 3350.

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