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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 Burdens of Proof 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:

If the claimant establishes a prima facie case of total disability, the burden shifts to employer to establish suitable alternate employment. An employer must show the existence of realistically available job opportunities within the geographical area where the employee resides which he is capable of performing, considering his age, education, work experience, and physical restrictions, and which he could secure if he diligently tried. The ALJ must allow the employer to present evidence as to the availability of the of suitable alternative employment, even if the employer does not have information as to the job’s previous availability. Lucas v. Louisiana Ins. Guaranty Ass’n, 28 BRBS 1 (1994). If the testimony relied upon by the judge provides substantial evidence to support his finding that post-injury work was available which constitutes suitable alternative employment, and the claimant has not presented any evidence of a reversible error, the Board will uphold the judge’s evaluation of conflicting evidence and credibility. Mendoza v. Marine Personnel Co., 46 F.3d 498, 500, 29 BRBS 79, 80-81 (CRT) (5th Cir. 1995); Hawthorne v. Ingalls Shipbuilding, Inc., 28 BRBS 73 (1994), modified on other grounds on recon., 29 BRBS 103 (1995).
Most circuits have adopted a version of this standard. Trans-State Dredging v. Benefits Review Bd. (Tarner), 731 F.2d 199, 16 BRBS 74 (CRT) (4th Cir. 1984), rev’g Tarner v. Trans-State Dredging, 13 BRBS 53 (1980); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981), rev’g 5 BRBS 418 (1977); Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir. 1980), aff’g Hansen v. Bumble Bee Seafoods, 7 BRBS 680 (1978); McCabe v. Sun Shipbuilding & Dry Dock Co., 602 F.2d 59, 10 BRBS 614 (3d Cir. 1979), aff’g in pertinent part 7 BRBS 333 (1977); Ridgley v. Ceres, Inc., 594 F.2d 1175, 9 BRBS 948 (8th Cir. 1979), aff’g Ridgely v. Great Lakes Storage & Contracting Co., 7 BRBS 297 (1977); Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Chappell], 592 F.2d 762, 765, 10 BRBS 81, 86-87 (4th Cir. 1979); Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 8 BRBS 658 (5th Cir. 1978), aff’g Kilsby v. Diamond M. Drilling Co., 6 BRBS 114 (1977); American Stevedores v. Salzano, 538 F.2d 933, 4 BRBS 195 (2d Cir. 1976), aff’g 2 BRBS 178 (1975). See also Hite v. Dresser Guiberson Pumping, 22 BRBS 87 (1989); Young v. Todd Pac. Shipyards, 17 BRBS 201, 203 (1985); Miller v. Prolerized New England Co., 14 BRBS 811 (1981), aff’d, 691 F.2d 45, 15 BRBS 23 (CRT) (1st Cir. 1982); Pilkington v. Sun Shipbuilding & Dry Dock Co., 9 BRBS 473 (1978); Bunge Corp. v. Carlisle and T. Michael Kerr, Deputy Assist, Sec., OWCP, 227 F.3d 934 (7th Cir. 2000).
In addition to the employer’s evidence of suitable alternate employment, the ALJ must also consider any other evidence put forth by the claimant in making a decision in this matter. For example, in Newport News shipbuilding and Dry Dock Co. v. Wiggins, (Unpublished) (No. 00-2532) (4th Cir. December 14, 2001), relying on the evidence as a whole, the Fourth Circuit affirmed the ALJ’s award of total disability benefits to the claimant. The employer had argued that the claimant’s part-time job as a newspaper carrier constituted suitable alternate employment. In upholding the award, the Fourth Circuit agreed that the newspaper route did not establish a continuing ability to earn wages. The evidence showed that the claimant experienced problems with her hands, wrists and knee, and that it swelled and gave way if she walked too much or too quickly. It further showed that she sometimes received help from her children in carrying out her duties. Furthermore, the court noted that her doctor noted that the carrier job was causing her a “lot of pain in her knee” and he prescribe medication and a knee brace to ease the pain and stabilize her knee.

If you have a question about Burdens of Proof 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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