Our qualified 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. <!–
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–>f general interest to the Longshore community is the ADA case, Willis v.Pacific Maritime Assoc., 236 F.3d 1160 (9th Cir. 2001), amended and rehearing en banc denied at 244 F.3d 675 (9th Cir. 2001)(ADA accommodation that is contrary to a CBA seniority system is unreasonable per se; ADA cannot preempt the NLRA because preemption doctrine applies only to conflicts between state and federal law.).
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The reader should also keep in mind that a claimant must be given the opportunity to explain discrepancies between statements filed in various claims, i.e. LHWCA and ADA. See Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999)(Held, (1) claims for Social Security Disability Insurance benefits and for ADA damages did not inherently conflict, and (2) employee was entitled to an opportunity to explain discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job.).]
The judge must compare the claimant’s medical restrictions with the specific requirements of his usual employment. Curit v. Bath Iron Works Corp., 22 BRBS 100 (1988); Mills v. Marine Repair Serv., 21 BRBS 115, on recon., 22 BRBS 335 (1988); Carroll v. Hanover Bridge Marine, 17 BRBS 176 (1985); Bell v. Volpe/Head Constr. Co., 11 BRBS 377 (1979).
At this initial stage, the claimant need not establish that he cannot return to any employment, only that he cannot return to his former employment. Elliot v. C & P Tel. Co., 16 BRBS 89 (1984). See, e.g., Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989) (employee required lighter duty which did not require the use of his right hand for heavy grip, and thus could not resume his former employment of holdman); Harrison v. Todd Pac. Shipyards Corp., 21 BRBS 339 (1988) (due to permanent restrictions against heavy lifting and excessive bending, employee cannot resume usual job as a sandblaster).
The same standard applies regardless of whether the claim is for temporary total or permanent total disability. If the claimant meets this burden, he is presumed to be totally disabled. Walker v. Sun Shipbuilding & Dry Dock Co. (Walker II), 19 BRBS 171 (1986).
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., 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.
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., 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.