November DBA Newsletter

Presumptions Under The Act

By Liza E. Lima, Esq.

The Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, is written with certain advantages for injured workers.  These advantages, known as “presumptions”, are listed under Section 20 of the Act.

Specifically, Section 20 states: “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary —

(a)  That the claim comes within the provisions of this Act.

(b)  That sufficient notice of such claim has been given.

(c)  That the injury was not occasioned solely by the intoxication of the injured employee.

(d)  That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.”

Section 20(a) presumes that a covered employees’ injury or occupational disease is casually related to their employment.  What does this mean and how does it apply to you? It means that, under the Act, it is presumed that a worker’s injury occurred as a result of the employment.  This provision presumes a causal link between the injury and the worker’s employment.  With the benefit of the law presuming that the employment led to the injury, the Employer or its Carrier must produce substantial evidence to the contrary – that nothing about the employment led to the injury!  The Employer or its Carrier typically does this by obtaining a report by a hired medical expert relating the injury to something other than the employment, or testimony from supervisors or co-workers that the accident or injury never even happened.

Despite the powerful effect of Section 20(a), an injured worker cannot successfully bring a claim in the absence of evidence.  For example, Section 20(a) cannot be utilized to establish that an injury or accident actually occurred, what caused the injury, to determine how bad an injury is, or whether the injury prevents you from working.  Those issues must be proved by evidence, usually in the form of your testimony, accident reports, incident reports, witness testimony, news articles (such as when insurgent attacks occur), the medical records of the base clinic or first responder, and the treatment records of your doctor.

You must still present a prima facie case under the Act in order for the presumption to take effect.  An injured worker must prove he or she suffered a harm or pain and that something occurred, or working conditions were present, that could have caused or aggravated the harm.  In other words, if you can show you were harmed in some way (such as a doctor’s note showing a back injury), and that working conditions existed that could have caused the injury (such as a job description requiring you to lift heavy objects all day, or a witness statement about the accident), the Act will presume that you were where you were supposed to be, doing what you were supposed to be doing, when the accident or injury occurred.  We use all of this to show the Court that an accident or injury arose within the course and scope of employment.

Another presumption afforded to an injured worker is contained within Section 20(b) of the Act.  Section 20(b) presumes that you timely notified your Employer of your accident or injury, and that you timely filed a claim for compensation benefits with the Department of Labor.  Just like above, the best way to establish this is to have documents showing you told your Employer you were hurt, and told the Department of Labor you are seeking compensation benefits because you were hurt.  It then becomes the Employer/Carrier’s responsibility to prove that you did not notify the Employer or the Department of Labor.

The third presumption under the Act is found in Section 20(c), which presumes a worker’s injury was not due solely to intoxication (drug or alcohol).  This section increases the burden placed on the Employer/Carrier to establish a possible intoxication defense.  The Employer/Carrier must first rule out all other possible causes of injury before an intoxication defense can be successfully proven.  In the same manner, the fourth presumption under Section 20(d) assumes the injury was not occasioned by the willful intent of the employee to injure or kill himself or another.  This, like the other presumptions enumerated in Section 20, shifts the burden to the Employer/Carrier to prove otherwise.

As you can see, the Act is drafted in such a way as to allow certain assumptions to be made.  If you can show you suffered a harm, and that conditions existed at work that could have led to the harm, then the Act will assume the harm arose out of and within the course and scope of employment (you were where you were supposed to be, doing what you were supposed to be doing).  The law will assume you notified your Employer you were hurt, and that you filed a claim for compensation benefits in a timely manner.  The law will assume you were not intoxicated when you were hurt, and it will assume you were not hurt as the result of you intentionally trying to hurt or kill yourself or another person.

The Employer and Carrier have the burden to rebut all of these presumptions with evidence of their own.  If the Employer and Carrier can produce evidence rebutting (contradicting) the presumptions, the Court must then look at the complete record and all of the evidence, and make a decision.  For example, you hurt your back while lifting boxes in Afghanistan, and you go to the clinic.  The clinic takes you out of work, and your Employer then sends you home to receive treatment.  The law presumes that you were hurt at work doing what you were supposed to be doing; that you timely notified your Employer of the accident or injury; that you timely filed a claim for compensation benefits; that you were not drunk or high; and you were not trying to purposely hurt yourself or another person.  The Employer or its insurance company can rebut the presumptions, usually by hiring a doctor to give an opinion that your back injury is the result of a pre-existing condition, or have your supervisor testify that you never told him or her you were hurt.  The Court must then look at all of the evidence, and decide what to believe.

What should you take away from this article?  Although the law does assume certain facts in your favor, the BEST PRACTICE is to always report an accident or injury in writing to your Employer, get a doctor’s note as soon as possible to determine how bad the injury is and what work restrictions you may have, and file a claim with the Department of Labor as soon as you start losing time from work because of your injury.

The lawyers at Barnett, Lerner, Karsen & Frankel, P.A. can assist you with your claim, and, as always, if you have any questions about your rights under the Act or any of the information contained in this article, please feel free to contact us.


Success Stories

T.R. v. Teng & Associates and Continental Insurance Company, 2013-LDA-00663 (Oct. 21, 2014).  The Claimant, who had worked overseas in the past, was hired by the Employer to work in Afghanistan as a master electrician inspector.  The Claimant fell three times within a short period of time, suffering various physical injuries.  After initial treatment in Afghanistan, he returned to the United States for further treatment.  Despite the three incidents and physical injuries, the Employer/Carrier denied the claim based on the opinions of two doctors – one was the Employer/Carrier’s IME physician, and the second was the Department of Labor’s own IME physician.  Both of these doctors contradicted the opinions of the Claimant’s physicians that he was hurt at work, ultimately believing some or all of the symptoms and injuries were not work related.

Brian Karsen, Esq. of the firm went to trial in April 2014, and Judge Linda Chapman entered an Order finding the claim compensable and the Claimant entitled to the benefits sought.  She discredited both IME doctors, giving more weight to the Claimant’s own treating physicians.

Lessons Learned:  The best evidence in your case will be your own medical records.  Be sure to go to a doctor for your injuries; tell your doctor exactly how you were hurt, what your job responsibilities were, and all of the symptoms you have; go to your doctor regularly and be compliant with your doctor’s recommendations.  Your doctor’s records will be used to show your treatment history and a continuity of medical care for your injuries.  Judges will usually give treating doctors greater weight when considering the evidence at trial.