Barnett, Lerner & Karsen, P.A.
WELCOME TO THE DBA NEWSLETTER, PREPARED BY BARNETT, LERNER & KARSEN, P.A. WE HOPE THIS WILL HELP YOU LEARN MORE ABOUT THE DEFENSE BASE ACT AND YOUR LEGAL RIGHTS.
The First Quarter of 2014 has been a busy time for the attorneys and staff at Barnett, Lerner & Karsen, P.A.! The firm is very interested in giving back to the community and supporting local charities and events. In January 2014 the firm participated in the Miami Design Preservation League’s annual Art Deco Weekend in South Beach, Miami. This organization is devoted to preserving, protecting, and promoting the Miami Beach Architectural Historic District, one of the largest Art Deco locations in the world. The firm is proud to be a part of preserving this historic district and architectural heritage of South Florida.
In March 2014 the attorneys attended The Victory Center’s annual Victory Royale Casino Night. The Victory Center is a non-profit organization that provides children with autism and other disorders with comprehensive individualized education. One of the co-founders of The Victory Center is Judge Judith Nelson, a former Florida Judge of Compensation Claims (workers’ compensation), and a good friend of the firm. David C. Barnett, Esq. is also a member of The Victory Center’s Board of Directors, and the firm is proud to sponsor this event every year.
Also in March the attorneys attended the Annual Longshore Conference sponsored by the Loyola University School of Law and the U.S. Department of Labor in New Orleans, Louisiana. This conference spans several days, and allows attorneys, adjusters, employers, and judges to gather in an informal setting and learn about the current state of the LHWCA and DBA. Many issues faced on a daily basis by our clients were discussed, and several of the cases reviewed in this Newsletter were covered during the case law update. This year Samuel S. Frankel, Jr., Esq. spoke at the conference on the issue of attorney ethics before the Office of Administrative Law Judges.
The attorneys and staff members participated in several races for charitable causes, the most recent being the April 2014 Mercedes-Benz Corporate Run in Fort Lauderdale, Florida. The firm sponsored a team for the race, and everyone had a great time! All proceeds from the race this year were donated to The United Way.
The firm is also a proud supporter of the U.S. military, and has received the ESGR’s Patriot Award by the U.S. Department of Defense. The firm’s continuing support has allowed its employees in the reserves and National Guard to serve the country knowing the firm is here to encourage and assist them.
J. F. v. SEII and Insurance Company of the State of Pennsylvania (AIG),
BRB No. 13-0559 (March 31, 2014).
In this interesting appeal, a worker who was injured while driving a truck in Iraq in 2005 was awarded benefits by the trial Judge. However, the worker appealed the Judge’s Decision and Order, because the Judge found the Claimant was entitled to permanent and total disability benefits using the compensation rate in effect in 2005 – the date he was initially injured, rather than the compensation rate for 2008 – the date he became permanently disabled.
Due to the Claimant’s high earnings, he was entitled to the maximum compensation rate for his temporary total disability benefits (i.e., the maximum rate as of 2005). The Benefits Review Board held the Claimant was entitled to the maximum compensation rate for 2008, however, based on the Claimant’s average weekly wage. Consistent with prior decisions, the BRB stated a worker’s compensation rate is determined by the fiscal year in which the worker becomes entitled to permanent total disability benefits (benefits that are awarded when a person can never work again). Since the Claimant’s average weekly wage was so high, he was still entitled to the maximum compensation rate for 2008.
Lesson Learned: The maximum compensation an injured worker can receive for permanent and total disability benefits is determined based on the fiscal year entitlement to PTD occurs, not the maximum compensation rate for the year of accident. This only applies to workers whose wages were so high as to entitle them to the maximum compensation rate.
C.K. v. Global Strategies Group and Continental Insurance Company,
2013-LDA-00542 (March 10, 2014).
On March 10, 2014 Judge Pamela J. Lakes entered a Decision and Order awarding benefits to a Kenyan national injured while working overseas for the Employer in Iraq. Samuel S. Frankel, Jr., Esq. represented the Claimant, and the case was decided on the record, due to the Claimant’s inability to travel to the United States to appear in person. In this case, the Claimant developed low back pain over time, and the claim was denied by the insurance company. The Claimant reported his low back complaints to his Employer and sought medical care in Iraq before being demobilized and returned to Kenya. Once home, the Claimant continued to seek medical care for his injuries. Based on the timely notice to the Employer, medical documentation in Iraq, supporting medical records from Kenya, and a written statement from the Claimant, the Judge found the Claimant established his prima facie claim against the Employer/Carrier, which was not rebutted by the Employer/Carrier’s evidence, and was entitled to medical and compensation benefits. The Court did admonish the Claimant, however, and instructed that all future statements submitted into evidence must be notarized or contain an acknowledgement the statement was made under the pains and penalties of perjury.
Lessons Learned: It is extremely important to ensure any pain or injury is reported to your Employer, and medical care obtained as quickly as reasonable, in order to provide the necessary evidence for the Court to make a decision, whether you testify in person or not. Any statement submitted for the Court’s consideration, however, must be signed, dated, include complete contact information, contain a sentence that the statement is made under the pains and penalties of perjury, and notarized, if possible.