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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.  If you have a question about the statute of limitations 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.
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 the burden of proof in a permanent partial 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:

The Board chooses instead to follow the test placing the burden on the employer in every case, because the Air America rule would require individual review of every case to determine what the appropriate burden of proof is, causing unnecessary litigation and delay. Furthermore, the Board prefers the traditional analysis because it is an impossible burden to prove oneself unfit for all employment, and the employer can usually better bear the cost of proof that some suitable alternate employment exists. Dantes, 10 BRBS at 548-49. See also Newport News (Chappell), 592 F.2d at 764-65, 10 BRBS at 85-86 (APA mandates that proponent bear burden of proof; moreover, employee should not have to prove the negative).
The Board will follow Air America, however, in the First Circuit. Dixon v. John J. McMullen & Assocs., 19 BRBS 243 (1986). In all other circuits, the Board follows Turner, 661 F.2d at 1038, 14 BRBS at 161. Nguyen v. Ebbtide Fabricators, 19 BRBS 142 (1986).
If the employer meets its burden and shows suitable alternative employment, the burden shifts back to the claimant to prove a diligent search and willingness to work. See Topic 8.2.4.9, infra; Williams v. Halter Marine Serv., 19 BRBS 248 (1987). If employee does not prove such, at the most his disability is partial not total. See 33 U.S.C. § 908(c); Southern v. Farmers Export Co., 17 BRBS 64 (1985).
As mentioned above, 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).
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.
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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