Most homicide detectives would agree that the first 48 hours are critical to the investigation. Even though the trial may not take place for months or even years after the fact, many murder cases are won or lost during this initial time window.
A Defense Base Act claim is very much the same. Many injured Afghanistan and Iraq contractors have been lulled into a false sense of security by the one-year time limit for filing a claim. They believe that time is on their side, so they put off filing a claim until their recuperation is well underway. Such a delay can be a serious mistake that could leave your family saddled with thousands of dollars in unexpected medical bills.
We have compiled some advice for the initial stages of filing your claim; most of them probably need to be done in the first 48 hours. We recommend that you bookmark this page and share the link with a close friend or someone you can rely on. Many times, injured contractors are in no condition to do the legwork themselves, so it must be delegated.
In American workers’ compensation law, the injured worker must be acting in the scope of employment at the time of injury. Typically, that means that delivery drivers must be on their routes, warehouse workers must be in the warehouse, and so on.
DBA eligibility is much broader: injured contractors do not necessarily have to be “on the clock” to obtain compensation for their injuries. The theory is that, simply by being present in a war zone, they are advancing their employers’ interests. Furthermore, many contractors are on call 24/7/365.
Report the Injury
A report to a supervisor is one of the most important triggering events in these areas, and if at all possible, the insurance company will later seek to deny coverage if this technicality is not performed in the exact manner prescribed.
Send the claim by e-mail, fax, or some other way that is instant and verifiable. It is a good idea to deliver a notice not only to your immediate supervisor, but to that person’s boss as well. A claim cannot be dismissed because the claimant sends out too many notices, so it is much better to err on the side of caution.
Gather Wage Information
Last year’s tax return or W-2 will probably not suffice because the average weekly wage (AWW) is typically calculated based on the last 52 weeks.
In addition to paystubs and bank records that reflect regular pay and bonuses, be sure and include noncash compensation, such as:
- Paid housing,
- Stipends and per diem,
- Directly reimbursed expenses, like moving costs,
- Paid medical, and
- Other such payments.
The larger your AWW, the greater your compensation, up to a maximum amount, depending on the date of injury.
When witnesses return to the States, they can be difficult to locate and logistics often become complicated. As a rule of thumb, for every four fact witnesses on a list, only one of them can be located and will agree to give testimony favorable to the victim.
Collecting contact information is like sending notices: there can never be too much. E-mail and social media accounts like Facebook are a good place to start, because this contact information seldom ever changes. Traditional address and telephone number are highly useful as well.
Keep a daily diary that includes all the doctors, nurses, and other professionals who care for you. That record should also include all the medicines and treatments that you receive. Be completely upfront with these people, because in some cases, even if you had a pre-existing condition or injury that was aggravated by your work overseas, the DBA may still apply.
People in military hospitals are usually somewhat familiar with combat duty and the logistical work being performed nearby, so they have a pretty good idea about what you do. But once you are at another care facility or rehabilitation center, take the time to explain things.
Under the DBA, injured contractors may choose their own physicians and, in most cases, change doctors at any time during the course of treatment.
Many insurance companies will send a “Nurse Case Manager” to “assist” injured contractors in their care and recovery. These people are very nice and very professional, but they are also paid by the insurance company, and, regardless of the implications made on television commercials, the insurance company is not “on your side.”
Politely ask these people to wait outside while you are speaking to a doctor or nurse, so there can be a free exchange of information. If you do not want to ask yourself, one of the doctors or nurses will gladly do it for you. They all know the drill.
For a free consultation with an attorney who is on your side, contact Barnett, Lerner, Karsen & Frankel today.